One of the things I like about OSHA is that the agency answers its mail. More precisely, OSHA fields questions from constituents and issues public letters explaining how it interprets parts of the law. A couple of recent OSHA interpretation letters clear up some confusing issues relating to recordkeeping. Here's a summary.

LETTER 1

ISSUE

Recording Injuries to Workers Who Can Do Restricted Work When No Such Work Is Available

QUESTION

One of our workers got injured at work. His doctor placed him on restricted work. But since we had no suitable restricted work for him, we sent him home. Should we record this case as "Days away from work" or as "Restricted work?"

ANSWER

The injury would be recordable as "Days away from work." OSHA has confirmed this in a pair of recent Interpretation Letters. In each case, the worker?s doctor had recommended that the employer give the worker restricted work but the employer sent the worker home because it had no suitable work to offer. OSHA made it clear that while doctors can make recommendations, the employer makes the final decision about whether a job is suitable for the worker's abilities. The employer has every right to be more restrictive than the doctor. But once the employer decides not to accommodate the doctor's recommendation and assign the worker restricted duty, it must record the injury as "Days away from work."

CITATION

OSHA Interpretation Letter, June 23, 2006
OSHA Interpretation Letter, Aug. 3, 2006

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LETTER 2

ISSUE

Recording Work Related Injury When Doctors Recommend Conflicting Treatment

QUESTION

A worker at my company disturbed a yellow jacket nest while clearing an overgrown area of soil and received multiple stings. He went to a local clinic where a doctor injected him with prescription medication and advised him to apply ice packs, drink fluids and rest. Later, a second doctor offered a written second opinion, indicating that the worker could have been treated with first aid. If that had happened, the injury would have been non-recordable injury. May I decide not to record the work-related injury based on the second doctor's opinion?

ANSWER

No. Under OHSA recordkeeping requirements, there are certain instances when an employer may choose between two conflicting medical recommendations for purposes of recording the injury. However, a recent OSHA Interpretation Letter makes it clear that once the worker actually receives medical treatment for the work-related injury or illness, the choice disappears and the actual treatment is the one that must be recorded. So in your situation, you must record the treatment recommended and provided by the first doctor.

CITATION

OSHA Interpretation Letter, May 12, 2006

THE CANADIAN PERSPECTIVE
When Are You Liable for a Visitor's Injuries?

By Glenn Demby

Editor's Note: The article above deals with U.S. legal issues. So, in the interest of equal time, here's a story of interest to our Canadian members.

OHS laws require companies to safeguard their workers against workplace hazards. But what happens if the victim of a workplace accident isn't one of your workers but a person visiting the site? Each province has a law requiring the person who occupies land to use reasonable care to ensure the safety of people who visit the land. A 2006 case involving a construction site accident provides an excellent illustration of the limits of these so-called occupiers' liability acts. Although the case took place in Alberta, the principles involved apply equally to every part of Canada.

THE CASE

What Happened: Renovations were being done at a college in Calgary. A painting subcontractor got to the site extra early hoping to finish some painting before the drywallers came and started spreading dust. It was 6 AM, and he was first on the scene. But his ladder was nowhere to be found. He figured it was probably on the third floor where the work was being done. His only way up was to climb the contractor's scaffolding to a window on the third floor. Sure enough, he found the ladder. But in going back down, the painter carelessly failed to watch where he was going, took a misstep and fell suffering severe hip and shoulder injuries.

The Claim: The painter sued the contractor for damages under the AB Occupiers' Liability Act ("Act"). The Act says an occupier of premises "owes a duty to every visitor" to use reasonable care in the circumstances "to see that the visitor will be reasonably safe in using the premises for purposes for which the visitor is invited or permitted" to be there. In this case, the painter was allowed on the premises to paint. So, he claimed the contractor should have made it safe for him to do his job.

What the Court Decided: The court found the contractor not guilty and dismissed the case [Baum v. Graham Const. & Engineering Inc., [2006] A.B.Q.B. 460, June 21, 2006].

ANALYSIS

The contractor didn't do anything wrong, according to the court:

IMPACT ON YOU

A case like this is useful because it can help you come to grips with the requirements of occupiers' liability acts. There are two lessons:

1. The Act Did Apply: The contractor in this case was, in fact, the occupier of the premises; and the painter was a visitor. So the contractor did in fact owe him a duty of protection under the Act.

2. The Contractor Complied with the Act: But the contractor met its duty under the Act. As the court explained, the occupier of land "is not an insurer and is not obligated to prevent any and all harm to a visitor." All the law requires is that it use "reasonable care." It's reasonable, the court continued, for the occupier to "assume that visitors will exercise reasonable care for their own safety in light of their knowledge and all of the circumstances." Thus, given the painter's experience and knowledge, it wasn't foreseeable that he "would use the scaffolding for the purpose which he did and that he would step off the end of it because he wasn't watching where he was going."

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