MR. MADDUX:  So, problem identification is probably the biggest area.

	MS. NOWELL:  Exactly, is where is starts.  So, the whole issue of
counting numbers doesn't add to prevention, it's topsy turvy.  As Steve
was saying, Mr. Langer was saying often, while this is a lagging
indicator, show me one company that is not using this lagging indicator
to begin work.

	One would hope that we would use hazard identification as opposed to
injury, but we don't.

	MR. MADDUX:  Right.  You are obviously out in the field working with a
lot of workers and a lot of, you know the safety people at the
individual plants, and so forth.  Are they going to get the definition
or is it too murky for them?

	MS. NOWELL:  I asked Tyson for their definition. It is exactly your
first sentence, and the second sentence as Tricia said, is on causes, so
for that company, they put in their definition the causes that they are
using, and they are all very good to identify a case.

	I have asked for another company's definition, I was hoping it would
come before starting, and I don't have it, but I will try to have it.

	MR. MADDUX:  Well, if you can get those in your written comments later
on, that will be very helpful.

	MS. NOWELL:  Absolutely.

	MR. MADDUX:  Thank you.

	MS. SHORTALL:  You indicated that many employers are already using
electronic recordkeeping systems.  Do you have any idea of what would be
the cost involved in updating the systems?  You are shaking your head.

	MS. NOWELL:  Not at all.  Again, many companies still keep them
handwritten, and when we get them, we get them faxed to us, or we get
xeroxed copies of them.

	I would venture to say half of the logs that we got in that database
were still handwritten.  So, for them, it is no cost at all.  It's the
same exact system and check mark in a box.

	Again, for the folks that are using computers, they are pretty
sophisticated.  I can't imagine that this is much of a brain drain to
have to update that software, and Tyson told me that they actually
already pull out their MSDs, so for a high risk industry, I would assume
that this was already happening in some fashion.  Again, in order to do
prevention, they are counting numbers.

	MS. SHORTALL:  For the companies that you said you got the logs
handwritten, what were the size ranges of those companies?

	MS. NOWELL:  Big.  I mean in meatpacking and poultry, we don't
represent small companies, we represent large corporations, and this one
plant whose log is buried in here somewhere, is a plant of 1,200
workers, part of Smithfield Corporation.  I mean we are talking --

	MS. SHORTALL:  Hundreds of employees?

	MS. NOWELL:  Yes, 1,200.  The poultry plants ranged from, I don't know,
3-, 4-, 500, to well over 1,000.  These are not small businesses, in
other words.

	MS. SHORTALL:  The companies where you have employees, how do the
employers now go about analyzing or responding to an employee report of
pain to determine whether this is a work-related injury or illness?

	MS. NOWELL:  I don't know specifically.  I can speak to Tyson where we
are doing the project.  They have developed a medical tracking system,
and they code it A, B, C, A being subjective symptoms reported, and
these are their logs.  They write everything down, and they are
recording everything, and they are doing a lot of education to get
people forward with early.  So, that is their A column.

	Their B column is some kind of restriction putting them out on a
different job and on transfer, and by the way, when we went to the
industry with this, when we went to Tyson with this data, we said I
don't know how you run a business when you have got nobody on their job,
and everybody on a different job or on restrictions.  I mean this is
financial cost here big time.

	C, the category C being surgery, and what they are wanting is for
everything to be in A.  So, they are definitely going by the subjective
symptoms, and that has been our impression ever since the big push in
meatpacking in the '80s and '90s, that there is a wish to get -- and I
have to say surgeries are way down in both poultry and meatpacking.

	There is all the under-reporting going on, and I didn't get into that
very much here, but there is lots of reasons that people aren't on the
logs, and they have already been talked about, and OSHA has got an NEP
out there to try to look at this.

	But many people are getting in early, getting on restricted duty, and
able to stay on their job without surgery.

	MS. SHORTALL:  When employees come in and report their pain, are they
first sent to a health care provider to be examined, or are they just
put in restricted work?

	MS. NOWELL:  No, especially in these big plants, there is a health care
provider on site, there is a nurse, nurses, who are trained by the
corporation to recognize and assess.  They are the ones who assign
restricted duty, they are the ones who track them.

	There is an algorithm as in the old days with the red meat guidelines
for deciding when to send them to a health care provider.  In some
plants, a doctor, depending on Workers' Comp and the State, a doctor
actually comes into the plant and does the assessment, there is physical
therapy on site.

	This a big business, the medical management of MSDs in meatpacking and
poultry is a big business.

	MS. SHORTALL:  Are they able to make a diagnosis based solely after
examination, based solely on employee report of pain?

	MS. NOWELL:  I can't answer that.

	MS. SHORTALL:  Thank you very much, appreciate your coming here today.

	MS. NOWELL:  Thank you.

	MR. MADDUX:  We are getting close to a lunch break, but I did want to
open it up.  I know we had a number of people who got hung up coming
through Security and got to the meeting a little bit late, and sort of
missed this very short session where we ask people of they had any
questions for the OSHA panel.

	I just want to make sure, are there any people, a show of hands, who
wanted to ask the OSHA panel a question, and didn't get a chance to do
that?  Pamela.

	MS. SHORTALL:  Come to the podium, please.

	MS. VOSSENAS:  Pamela Vossenas, Unite Here.

	I know you asked us questions about did we train our members and how
did we use the information.  I would like to know what type of training
is OSHA planning to offer if this provision of the Recordkeeping
standard is made to workers, to unions, to employers, to whoever out
there is concerned.  Thank you.

	MR. MADDUX:  I guess the answer is we don't know yet.  So, we have had
some discussions certainly about the need for some sort of an outreach
effort following the issuance of a rule.

	In 2001, we did a mass mailing, for example, to every covered employer
that we could identify in our databases to provide them with the new
forms and the instructions, and so forth.

	The BLS does the same sort of thing.  They send out a mailing to all of
the people that are going to be in the next year's survey.  So, some of
those people would be included, but quite honestly, those are decisions
that we have not made yet, and for you and for anybody else, in your
written comments, if you have concrete suggestions for what you think
that we should do, then, that will give us some ideas that we can think
of.

	Obviously, it is like anything in the world, there are money and time
constraints, and so forth, and so we will have to make some hard-nosed
decisions at the end about how much we are going to do and which types
of outreach we are going to do.

	But certainly it is something that we are thinking about, and that
ideas would be welcome.

	MS. SHORTALL:  There hasn't been any significant OSHA rulemaking in
which there hasn't been outreach that has been planned for the release
of the rule.  I mean we do the compliance directives.  There are now
options for different types of webcasts.

	It is not only done by the National Office.  Once we train our field
people, they, in turn, become trainers of others.  But your specific
suggestions as to how it could be most effective both in terms of
reaching the most and resource effective would be greatly appreciated.

	MR. MADDUX:  Anybody else?

	MR. HALPRIN:  Hi.  Larry Halprin, Keller & Heckman.  Good morning.

	In the NAM settlement agreement, the language basically said if a case
is not recordable, the employee experiences musculoskeletal discomfort
of a minor nature, the person is sent to a health professional.  The
health professional says the person can perform all the functions of
their job.  In that case, it is not considered a restricted duty case
even though the employer puts the employee on restricted duty.

	It is very unclear.  Could you explain how this proposal would change
that?  I see language that says that that language will be deleted from
the compliance directive.  It appears that it is a substantive proposed
change in the interpretation of the rule that has been in place for 8
years, and I would like you to react to that.

	MR. MADDUX:  Well, it is a substantive interpretation, and it is one
that we are taking a look at, and so that is why we are proposing, in
this rulemaking process, to delete it, so that we can get some comment
on what the right approach is.

	We think that certainly there is some good reasons for issuing the
proposal that we had at the beginning of the rulemaking period, and as a
result of the settlement agreement.  At this time, we think that there
may have been some problems in how that interpretation was used over the
years, and, in particular, the difficulty.

	I don't know if you were here for Steve Newell's presentation, but the
difficulty is that the Recordkeeping rule has always included pain as a
recordable injury if it reached a level where it met restricted work or
the other recording criteria.

	So in this interpretation, you know, we kind of have this term of minor
musculoskeletal discomfort, and the problem is that sort of this
cognitive bias issue of, you know, your pain is my minor discomfort, and
where do we figure that out.

	We have heard of some cases where we have had employees who have been
in pain for a substantial amount of time, have been on
anti-inflammatories that didn't reach the recordkeeping definitions of
medical treatment, and so forth, that were not being recorded on the
logs.

	So, we are just trying to re-examine that issue and see if there is
something that we should do to improve that interpretation.

	MS. SHORTALL:  We are also doing, consistent with requirements of the
Administrative Procedures Act, so that is what we are doing in terms of
notice and comment, and why it is included in this rulemaking.

	MR. HALPRIN:  So, although the press release said all this was doing
was proposing to add an MSD column, and that is all that is stated in
the summary, you are treating this as a substantive proposal on that
issue.

	MS. SHORTALL:  The Federal Register notice was the legal document, and
it did cover that particular issue, as well.

	MR. HALPRIN:  Do you think it is appropriate to put a question like
that 8 pages back, in the middle of the Federal Register rather than
putting it in the summary?

	MS. SHORTALL:  It is a very short Federal Register document, and I
don't believe that anyone has had difficulty identifying or finding it,
I guess as evidenced by your questions here today.

	MR. HALPRIN:  Doesn't the document in the Federal Register say we are
not changing any of the substantive rulemaking interpretations about
recording criteria?

	MR. MADDUX:  We don't believe that we are changing the recording
criteria in any way.  This was always our intent that pain would be
recorded if it met the recording criteria.

	If cases do not reach the level of an injury or illness, then, they are
not recordable, they are not in the system, so that is the potential
difficulty of the interpretation.

	We don't think that we are being inconsistent at all, that the Agency
has had a very consistent view of what is supposed to be recorded on the
OSHA injury logs, and that we are not changing that.

	MS. SHORTALL:  What we are doing is talking about language that we
agreed to put into an initial compliance directive only, and that was
very clear language in the settlement agreement, and the settlement
agreement was also very clear in saying that nothing contained in it
affected OSHA's right to modify or interpret its regulations in the
future.

	So, that's what we are doing, and we are asking for comment on how we
might go about changing that interpretation, but it is not part of the
regulation itself.  It was language we agreed to put only in a
compliance directive.

	MR. HALPRIN:  Don't you agree that the law basically is when you take
an interpretation, formalize it, and put it in a document, and enforce
it for 8 years, it becomes part of the law, and you have to go through
rulemaking to change it?

	MS. SHORTALL:  That's what exactly we are doing today.

	MR HALPRIN:  Thank you.  I appreciate that.

	When the ergonomics rule, program rule was adopted, there was an
extensive discussion in the preamble in which OSHA concluded that
ergonomic MSDs were injuries.

	Is there an intent to change that interpretation through this proposal,
which refers to MSDs as illnesses in at least five or six cases in the
preamble, suggesting that the Agency is changing its definitions or
interpretation of these MSDs and calling them illnesses rather than
injuries?

	MS. SHORTALL:  I don't recall that in the ergonomics rulemaking that we
characterized MSDs as solely injuries.  In fact, we are clear to say we
thought they were sort of a hybrid.  They had some aspects of injury and
some aspect of illness, and in some ways, I don't think we did.  We were
very clear I think in calling them primarily disorders.

	MR. HALPRIN:  Do you recall that it was considered a 6B Section 38
Standard, and not a 6B5 standard?

	MS. SHORTALL:  We did consider it a 6B5 standard.

	MR. HALPRIN:  I would ask you to go back and look at the record, and I
believe you will find that is not correct.

	MS. SHORTALL:  We will certainly go back and look at it, but I do
believe our authority for issuing -- am I thinking the right thing, you
are not talking recordkeeping now, you are talking about the ergonomics
standard?

	MR. HALPRIN:  If you would look at the program standard, you will find
clear analysis discussion leading to the conclusion that MSDs are
injuries with the possible exception of vibration, which wasn't
considered significant enough to throw the case into --

	MS. SHORTALL:  I think we cited our authority as Section 6B5 of the
standard, but we also said that any standard also has to meet the
requirements of Section 38 of the OSHA Act.

	MR. HALPRIN:  We will be happy to submit comments and suggest you look.
 Thanks.

	MS. SHORTALL:  Thank you very much.

	MR. MADDUX:  Thank you, Larry.

	I would suggest that we all grab some lunch and that we gather back
together here at 1:15.

	[Luncheon recess taken from 12:07 p.m. to 1:18 p.m.]

	MR. MADDUX:  I think we could get started again.

	Our next panel up is Scott Schneider, Laura Welch, and Chris Trahan
from the Building Construction Trades Department of the AFL-CIO.
Welcome, and it is all yours.

	MS. TRAHAN:  Thank you.  Good afternoon.  I am Chris Trahan.  We are
here representing the Building Construction Trades Department, which is
an organization of 13 national and international unions who represent
more than 3 million workers in the United States and Canada.

	Generally, in whole, we support this rulemaking effort.  I just wanted
to start by introducing our panel, Dr. Laura Welch and Scott Schneider,
who will tell you more about themselves, but also wanted to mention
something about the recent ACOSH meeting that occurred back in December.

	In the preamble to this proposed rule, you do mention that ACOSH
considered this rule and recommended unanimously to OSHA to go ahead and
publish the proposed rule, but I also thought that some of the
conversation that occurred in the committee would be of interest to
folks who are writing the rule.

	There was actually some employers who were interested in getting more
information collected on these logs.  It was interesting and it would be
a good read, and if you are interested I will submit some of the
transcript of posthearing comments, but that is about all I wanted to
say, and I will ask Scott to go next.

	MR. SCHNEIDER:  Good afternoon.  My name is Scott Schneider and I did
give four copies of my testimony and an attachment to it to Sarah to
pass out.

	I am the Director of Occupational Safety and Health for the Laborers'
Health and Safety Fund of North America.  The fund is a joint
labor-management fund associated with the Laborers' International Union
of North America, UNA, which represents about 500,000 workers who mostly
do construction work in the U.S. and Canada.

	I am a certified industrial hygienist and a fellow member of the
American Industrial Hygiene Association and on the AIJ Ergonomic
Committee, by the way.  I have been a practicing industrial hygienist
for over 29 years.  For about 20 of those years, I have been studying
and publishing in the area of construction ergonomics.

	I have published several reviews in this area including the first
American review of ergonomics and construction, a review of the data on
musculoskeletal injuries in construction, and book chapters on
construction ergonomics.

	I also helped to organize several international symposia on
construction ergonomics in conjunction with the International Ergonomics
Association triennial meetings, and for 10 years I was the Ergonomics
call-in director for the Applied Occupational Environmental Hygiene
Journal.  I am a member of the AIJ Ergonomics Committee and former
member of the OSHA Advisory Committee on Construction Safety and Health,
ACOSH, and the NIOSH Board of Scientific Counselors.

	I am testifying today in support of the OSHA proposal.  In 2001, I
published a review of musculoskeletal injuries in construction, a copy
of which I have given you.  My goal was to give readers an idea of the
scope of the problem.  To do so, I surveyed many different sources of
data from the BLS published data to peer-reviewed journals,
international studies, as well.

	It was a difficult process because there was no one place to find this
information.  BLS has several different definitions that can be
classified as MSDs, such as sprain or strain injuries, overexertion
injuries, those due to bodily reaction.

	Symptom survey in construction show large percentages of construction
workers suffering from problems like back pain.  The conclusion of this
review was that construction workers suffer from about 50 percent more
MSDs than other types of workers.

	By having a separate column on the OSHA log, all of these various
related disorders can be grouped together, and there can be one easy way
to gauge the scope of the problem.

	As MSDs represent about a third of all injuries in construction, it is
critical to be able to identify and address these in any injury
prevention efforts.  In the past 10 years, there have been new efforts
by unions, trade associations, and government, State OSHAs and NIOSH, to
tackle MSDs in construction along with the new ANSI Standard A10-40,
which I worked on.

	All such efforts will be greatly aided by having a consistent
definition and standardized and centralized place to record them.

	To prevent a problem, you have to understand its cause.  MSDs in
construction often have a common origin in material handling or other of
exertion tasks.  If an employer could easily see which cases were MSDs,
he or she could look at them as a group and see common patterns.

	Material handling could result in back, shoulder, arm, neck strain.
Putting these together as MSDs makes these patterns clearer.

	Many construction companies are committed to driving towards zero
injuries on their work sites.  To do so, they must have more information
and be able to easily see how many MSDs they are having, where they are
occurring, what workers are doing at the time of injury.  Adding this
column to the log will help.

	DR. WELCH:  Good afternoon.  I am Laura Welch.  I am a physician with
specialization in occupational and environmental medicine.  I spent
20-plus years as an academic before I went to work for my current
employer, the Center for Construction Research and Training, which is a
non-profit research institute devoted to improving health and safety in
the construction industry.

	A lot of my career was spent treating and working with construction
workers around health and safety including ergonomics.  At CPWR, I am
the Medical Director, and I direct the ergonomics programs, so I have
many years of experience evaluating health claims, medical records for
MSDs, and evaluating individuals with musculoskeletal disorders.

	I think adding this column is obviously a very good thing to do.  I
mean I am going to somewhat repeat what Scott had said and what other
people have said earlier today, but I also think it is important that
the column and the MSD check will include all MSDs, and not just the
ones that have lost work days.

	I think Jackie Nowell made a very good case for that.  In my
experience, a lot of MSDs return to work with restricted duty, and if we
are not capturing those, we are losing the ability to really see the
whole picture.

	So, grouping all the work-related MSDs together really is important for
prevention.  The example that I could think of is overexertion and
manual material handling could lead to back strain, a shoulder strain,
or some hand or arm injury, but it is all related to that particular
hazardous task and occupation.

	So, for using surveillance and identifying MSDs so that we can go back
and figure out the root cause in the workplace, grouping them together
is much more effective than looking at them specific condition by
specific condition.

	If an employer has thousands of employees and hundreds of injuries,
specific condition analysis might be useful, but for smaller employers,
the only way to find a pattern would be to group them into a larger
group.

	So, if someone looks only at shoulder injuries, it may take them five
years to get enough experience to say oh, that overhead task is causing
shoulder injuries, but if they are grouping together hand, arm,
shoulder, thorax, back injuries, the relationship with specific work
activity is going to appear much more quickly.

	So, from a biomechanical point of view, and from a medical point of
view, it really makes a lot of sense to group them together rather than
keep them separate.  So, I think it's a really good idea as well as
expanding the universe of MSDs that are being recorded by including all
recordable MSDs, not just lost time cases.

	When OSHA proposed adding this column in 2001, there were some
organizations that commented that there is no generally accepted
definition of an MSD, so I don't think this rule is asking employers to
diagnose an MSD. You don't need diagnostic criteria, diagnosis is for
physicians.

	Now, many MSDs are predominantly symptom based, and that is true for
other medical conditions, as well, and the symptoms can be severe.  The
symptoms from a physician point of view, we understand that there is a
symptom complex that leads you to specific diagnosis, and professional
organizations like the American Academy of Rheumatology diagnose
diseases based on the presence of a range of symptoms.

	So, symptoms are very important, it is not something to minimize and
say, oh, that is just somebody complaining and they have pain.  That is
the core of the diagnosis of many of these conditions, so I think it is
really important that OSHA made it clear that pain and symptoms are an
important part of what goes into determining whether something is a
recordable musculoskeletal disorder.

	The regulation, as I understand it, is not changing what is a
recordable condition, it is clarifying what is a recordable condition, I
think providing very useful information to employers to determine what
to record and what to record as an MSD.

	The definitions that are in the proposed rule are very similar to what
has been used in the ergonomic program management guidelines and what
the BLS uses in its definition.  I think Jackie Nowell addressed that
pretty well before.

	Overall, I think it is a really good addition, the column and expanding
the definition helping employers determine how to record these cases,
because once there is a more systematic and comprehensive way to record
MSDs as a group, the patterns of the work-relatedness and the causes
will be much more apparent, and we can really move forward with
prevention.

	So, I think you are providing a tool for the employers to do it, as
well as the tool for outside consultants or OSHA to better see the
patterns of MSDs.

	In the construction industry, it is a major problem.  It is in a lot of
industries, but MSDs, back injuries in particular represent a third of
all the injuries and almost half of all the costs, so anything that
helps the construction industry in particular improve identification of
root causes and risk factors will help construction workers and the
industry as a whole.

	So, thank you for the opportunity to comment today.  Thank you.

	MR. MADDUX:  Thank you.

	We have heard several examples today of situations where people have
done sort of these analyses of MSD in individual workplaces, which, of
course, in the construction sector, means something a little bit
different because of the project nature of the work.

	Do you have any examples of these types of analyses in construction,
companies or construction settings that are sort of parallel to that?
Are people doing these kind of analyses?

	MR. SCHNEIDER:  I haven't done any, and I don't know specific companies
that have or haven't.  I mean I am sure that there are, and many of the
trade associations have been addressing these issues.

	One thing that they have done is some of the trade associations have
used their insurance carriers, which have looked at compensable injuries
to look at where their Comp costs are, and how many of them are
musculoskeletal related, and trying to attack it through that direction.

	DR. WELCH:  At CPWR, we have had experience with some research projects
and with working with some large employers to look at MSDs.  It hasn't
been using the OSHA log in particular.  It has been looking at the
injury records themselves.

	MR. MADDUX:  Right, so they really tried to go at it more from the
insurance data.  Do you think that this MSD column will be better in
some ways than the insurance data, or different, or worse?

	DR. WELCH:  He would say insurance data.  I really don't know.

	MR. MADDUX:  Okay.  Well, you can think about that.  If there is
something that makes sense in your written comments that you want to
submit later, that would be great.

	MR. SCHNEIDER:  I think one of the problems is the insurance data,
there is a lot that isn't captured in that.  I mean a lot of people
don't file for compensation, so there is a lot of people that have like
back pain and work through it.

	We did a survey about, I don't know, it must have been 15 years ago,
3,000 construction workers in the Midwest, they found 40 percent of them
said one of their biggest problems was working while they were in pain.

	So, I think a lot of them are not filing for Comp.  It is difficult to
go out on Comp, you know, because they are not going to get paid, I mean
for a while.  I mean if they don't work, they don't get paid generally,
and they may file for Comp, and it may take a while to adjudicate.  It
is a difficult system.

	So, I think there is probably a lot of stuff that would get captured on
the log that may not get captured by the Workers' Comp system.

	MS. SHORTALL:  Following up on this issue, the employers who are using
the Worker Comp information to try to do some analysis of MSDs, would
they also find an MSD column in conjunction with their Workers' Comp to
be a useful tool to do analyses and tracking?

	DR. WELCH:  From my point of view, it would be useful for the reason
that I described where it sort of the insurance data may represent 20
percent of all the MSDs that are occurring among a group of construction
workers, so if you want to find the root causes, you are not using too
small a sample size, and they may not be representative of your bigger
problems.

	It is hard to know which cases are the ones that involve Compensation,
but whether the specific employers would be using it, I can't really say
specifically.

	MS. SHORTALL:  Dr. Welch, as a clinician, how do you determine if a
person presenting with pain has, well, let's say, an injury and illness
that may be related to work?  How do you go about determining that?

	DR. WELCH:  There is a Henry Youngman joke about that.  "Doctor,
Doctor, it hurts when I do this."  "So, don't do this."

	I mean in some ways, but occupational medicine, we always trained
medical students that you need to ask what people do for work, and with
an MSD, with a work-related MSD, their work is going to be aggravating
it when they are doing the activity that caused it.  So, that is part of
where you start is looking at the relationship between work and ongoing
symptoms.

	Since something being work related can be primarily caused, contributed
to, or aggravated by, once someone's medical condition is being
aggravated by work, you know there is a work-MSD interaction.

	From a treatment point of view and a clinical point of view, that is
enough to want to go in and do something about that individual's work,
work environment, if you can, and then to determine whether it's
compensable, there are a lot of different questions you ask, is it
recordable, is it compensable.  Those are different questions once you
have determined there is some work relationship with the MSD.

	So, a lot of it is the medical history.

	MS. SHORTALL:  As a clinician, have you found that when an employee has
pain, that employers are generally referring them to a health care
provider for examination or assessment?

	DR. WELCH:  Well, I think it varies.  You know, I am the clinician, so
I am seeing them, but often not referred by the employer, often referred
by a co-worker, or referred by their union.  I think of a large employer
here in D.C. that I worked with, and initially, I was the problem
because I was finding all these cases, and maybe if I weren't around,
they wouldn't really have a problem, but after they kind of got through
the initial shoot the messenger point of view, they hired their own --
developed an in-house stay for capability, the way Jackie Nowell was
talking about in the big meatpacking plants.

	So, they were actively referring, encouraging people to report and to
go directly to their in-house providers, so that they could make a work
intervention before it rose to the point where they had to refer
somebody to outside medical care.

	So, there was a big shift in the initial recognition then led to saying
okay, we have a problem and now we are going to really try to get ahead
of this, find people when they are symptomatic early on, and adjust
their work station, follow them, try to keep them in a way away from a
provider, because we don't care if it's recordable or not.  We want to
keep it from getting worse and adjust that problem for their co-workers,
so other people aren't affected.

	MS. SHORTALL:  This question is for all three of you.  This morning,
Ms. Seeley from AIHA suggested that it would be helpful if OSHA included
risk factors in its definition of MSD.

	Could I get your opinion on that notion?  Would you support that?  Is
that something you would find helpful, not helpful?

	MR. SCHNEIDER:  I don't believe she said that it should be in the
definition.  She talked about putting it in guidance.

	MS. SHORTALL:  That's fine, yes.

	MR. SCHNEIDER:  And I think i guidance it would be very helpful to give
people an idea of, you know, how do you determine whether these may have
been work related. If people are doing jobs, if people have these
symptoms, and yet they are not doing anything that -- they are not
exposed to any of the risk factors, then, you can draw different
conclusions.

	So, I do think it would be helpful in guidance.

	DR. WELCH:  I do, too.  I mean I think you have got two parts to
determining whether these cases belong on the log.  One, is it an MSD?
Two, is it work related?

	So you are providing a lot of information on the MSD part.  People, for
as long as OSHA has had a recordkeeping rule, they have had to make this
work-related determination, but now is an opportunity maybe to enhance
that and to help people, get them to focus on MSDs and provide them
guidance on what makes an MSD work related, which includes the risk
factors.

	MS. SHORTALL:  What about you, Ms. Trahan?

	MS. TRAHAN:  They answered.

	MS. SHORTALL:  This is for any and all of you. To what extent would you
say that the construction industry currently uses electronic methods for
recordkeeping?  Don't all speak at once.

	MR. SCHNEIDER:  I really don't have a clue as to I haven't seen any
data.  I think there is a lot of companies that are and probably a lot
of small ones that aren't.  But I think clearly, that is changing over
time as computers get cheaper, get easier to use.  I mean software gets
cheaper.  I think it is definitely changing, but I really have no idea
of how many or what percent.

	DR. WELCH:  Except that the industry as a whole is made up of small
employers, so that there is, what, 80 percent of construction employers
have no employees, and 90 percent have fewer than 10.  But then there
are some really big ones.  So, you can't really make a generalization
about the industry in the way you might be able to generalize about the
auto industry, because the spread of employers are so big.

	MR. SCHNEIDER:  One thing I will add, though, is I think computers are
becoming more and more common and more useful in construction.  I mean
there has been a big push for what is called building information
modeling where a lot of building construction is being done through
computer-assisted design, and information systems for scheduling
projects.  I mean I a lot of computers are being used on construction,
but more on the larger projects.

	MS. SHORTALL:  The proposed rule came forward with the idea that
possibly OSHA could develop some software, so employers could use to
move to electronic recordkeeping.

	To what extent do you think that would be useful in the construction
industry?

	MS. TRAHAN:  I think it would be very useful.  I think that anything
that you can hand employers to help them comply with the regulations is
appreciated, and I believe that the e-tools that are out there in the
construction sector are widely used and embraced by the industry, and
this would just be another e-tool really the way it sounds.

	MS. SHORTALL:  Mr. Schneider, you talked about how useful having an MSD
column would be for those who are doing research on any type of
industry, but you were focusing on the construction industry.

	How would an MSD column be useful to establishments themselves?

	MR. SCHNEIDER:  Well, I think it will make it easier for employers to
sort of group those injuries and try to look at, well, what are these
people doing that possibly could be contributing to those injuries.

	I mean a lot of exposures in construction are trade-specific or
task-based, task-specific, and I think you could see, well, which of
these workers, as Laura was saying, have shoulder injuries and are
working overhead or knee problems that are working at ground level or at
roof level.

	I think that will point people in the right direction towards
prevention activities, so I think it will be helpful.

	MS. SHORTALL:  Dr. Welch, you mentioned that 90 percent of the
construction industry is comprised of companies that have 10 or fewer
employees, is that correct?

	DR. WELCH:  Yes, and I will make sure we give you the data from -- we
have a construction chart book that has got all that information, but I
will make sure it is right.

	MS. SHORTALL:  If a company has so few employees, it would seem that
they might be able to keep track of something like MSDs without the need
to also have an MSD column.

	So, to what extent would an MSD column be useful for an industry that
is comprised 90 percent of small employers?

	DR. WELCH:  I think that for a small employer tracking injury rates
isn't very helpful.  Sometimes a single event could be enough to say,
because it was your son in law, or it's your uncle, a single event is
enough to say, well, I don't want that to happen again, what happened.
So, I don't know that the -- the MSD column is really useful for rates,
but those small companies are working on projects that wrap up to many
different workers.

	You know, you could have like the Denver International Airport, which
had 130 different contractors on it at one point in time, or, you know,
the City Center in Las Vegas.  You know, you could have 100 small
employers on one big project, and many of those projects have, if they
are big enough, they have an owner-provided insurance plan, so this
would be very useful I think to those owners because you can wrap up the
MSD data much more quickly.

	So, instead of it being useful necessarily to the small employer, in
those settings, the small employer is not really doing the injury
prevention, it is kind of at the level of a super-safety consultant who
is working for the general contractor or the owner.

	Now, that is a small proportion of projects that have those wrap-up
insurance programs, but in those programs you see much more active
management of injury, much more active return-to-duty programs, because
you have got one person who is owning the cost of the injuries, and I do
think in that setting, it would be very useful to them.

	Now, I haven't heard that from those big companies, but I think
otherwise, they are having to get this information from the multiple
employers on the site, so if the employers are checking it on a log, I
think it would be much quicker, and the responsiveness of the safety
consultants could be much faster to the presence of an MSD.

	MS. SHORTALL:  This is my last question.  Let's take that construction
company and double or triple its size.  You know, it's 20, 30, 40.
Would the MSD column provide useful rate information for them, or is it
mostly going to be the usefulness will be as it is for the smallest
employers?

	DR. WELCH:  I think it will be useful once you are getting into that
range you are talking about.

	MS. SHORTALL:  Thank you.

	MR. SCHNEIDER:  I would just add, you know, if you look at all
injuries, since this is such a large percentage of the injury picture,
this is probably going to crop up more often than other kinds of
injuries that would be rarer.

	DR. WELCH:  So, then once you are getting into 20 employees, you are
going to start to see important patterns.

	MS. SHORTALL:  Thank you very much.

	MR. MADDUX:  Thank you, appreciate it.

	Next, we will have David LeGrande of the Communications Workers.  I
think he has just joined us.

	MR. LeGRANDE:  Good afternoon.  The Communications Workers of America,
AFL, CIO, CLC, Central Labor Canadian Labor Congress, I should say,
appreciates the opportunity to present comments regarding the
Occupational Safety and Health Administration's proposal to revise the
Agency's Occupational Injury and Illness Recording and Reporting
regulation, or I will refer to it as Recordkeeping, to restore a column
to the OSHA 300 Log requiring employers to record work-related
musculoskeletal disorders or MSDs.

	CWA represents some 600,000 workers throughout the United States
employed within the telecommunications, electronics, automotive, and
furniture manufacturing, airline, health care, and medium broadcasting,
printing and publishing, and public sectors.

	CWA has been actively working to identify and resolve work-related MSDs
for more than three decades. Therefore, CWA fully supports OSHA and the
Agency's work to establish the proposed regulation.

	As noted by OSHA in the January 19, 2010, Federal Register, the 2001
Recordkeeping final regulation included an MSD column, but the
requirement was deleted before the regulation became effective.

	This proposed rule would require employers to place a check mark in the
MSD column instead of the column they currently mark if a case meets the
Recordkeeping's regulation general recording requirements.

	Again, CWA fully supports OSHA, adding an MSD column on the OSHA 300
Log, and thus, the regulation.

	During the period, that is, 2001 to 2003, when OSHA considered deleting
and did delete the MSD column from the OSHA 300 Log.  CWA identified
numerous instances whereby represented employers failed to accurately
record MSDs on the OSHA 300 log.  This action, particularly involving
represented telecommunications employers, led to significant
under-reporting and accurate identification and resolution of MSDs.

	In turn, such under-reporting led so significant difficulties in
accurately identifying and resolving work-related MSDs both by the
employer and the union.  We will provide examples of this conduct in our
full comments to be submitted later this month.

	The addition of an MSD column to the OSHA 300 Log would allow for the
collection of important information specific to identifying and
resolving work-related MSDs.  Also the collection of accurate MSD data
would assist OSHA in determining targeting activities specific to the
Agency's inspection outreach, guidance, and enforcement work, as well as
help develop and maintain complete and accurate national occupational
injury and illness statistics.

	The importance of such work should not be underemphasized.  Rather, the
collection and use of accurate MSD data would be a tremendous aid in
identifying and resolving the leading type of U.S. workplace injury and
illness cases, that is, MSDs.

	Again, CWA will provide further comments in this case, an excellent
example specific to a major U.S. health care employer and joint work
with the union in using previous OSHA logs which called for repeated
trauma to be noted in the OSHA log.

	Those efforts to identify cases and resolve them, which in turn has led
to not only substantial economic savings by the employer, but also
increase the well-being of employees insofar as far fewer than develop
MSDs both in terms of numbers and in terms of severity of illness.

	Also, establishment of the proposed regulation would be most useful to
CWA outside of the health care industry and our continued work to
identify and resolve member work-related MSDs with other employers
represented again by our union.

	In CWA's full comments, again to be submitted later this month, we will
target employers within two additional represented industries, that is,
telecommunications and manufacturing and demonstrating the need for
adding the MSD column.

	I might suggest in part that as I noted, the significant decrease in
reporting of cases within the telecommunications industry starting in
that 2001-2003 time frame led employers to record MSDs at a 1 percent
rate as opposed to the 6 percent rate that they had recorded the
previous year without any improvement in working conditions.

	Upon more detailed analysis of their absenteeism data, which includes
work-related and nonwork-related cases, which I conducted, the rate
actually was 12 percent.

	So, again, the MSD column being included on the OSHA 300 log is
extremely important relative to the under-reporting of MSDs.  For the
purposes of this regulatory action, MSDs are defined as, I quote,
"disorders of the muscles, nerves, tendons, ligaments, joints,
cartilage, and spinal discs, except those caused by slips, trips, falls
motor vehicle accidents, and other similar accidents."

	Of note, this is the identical definition contained in the 2001 final
Recordkeeping rule.  Use of this definition is extremely important to
the accurate identification and control of MSDs.  For example, the
present CWA's, the union's Occupational Safety and Health Department is
conducting our sixth annual IUE-CWA injury and illness investigation
representing hundreds of U.S. electronics, automotive, and furniture
manufacturing employers and workplaces.

	In part, this work involves a collection review and analysis of injury
and illness data in employer-maintained and provided OSHA 300 Logs.  As
we carry out this work, we often see employers, particularly small
employers, and I emphasize that, particularly small employers,
misclassify and misreport MSDs as sprains and strains related to slips,
trips, and falls.

	This change in the reporting regulation would allow them to better
clarify the cause of the issue, that is the incident itself, as well as
developing a more comprehensive program within their place of
employment.

	Therefore, use of the proposed definition would make it easier for
employers to record and maintain accurate MSD data, and equally as
important, allow CWA and represented employers in joint activity to
collectively identify and resolve work-related MSDs.

	Thank you again for allowing CWA to present and we look forward to
submitting our full comments later in the month and again would like to
let you know again that we fully support OSHA in the establishment of
the Recordkeeping regulation.

	I am open to any questions you might have specific to what I have
commented on, but also our experience in terms of identifying and
resolving MSDs with represented employers through use of the OSHA 300
Log in particular.

	MR. MADDUX:  Have you been doing those types of analyses off of the 300
Log, David, your locals?

	MR. LeGRANDE:  I work with our locals, I really do most of the
analyses, but I work with the locals in educating them as to how to do
bootstrap analysis you might say, basic analysis, and also to work with
the employer representatives.

	Again, many of these are smaller employers, so oftentimes the employer
representatives are not full-time safety and health personnel.  They
have many assignments including safety and health.  So, they are not
experts in this field.  Our folks work with them and provide their
expertise to ensure that these cases are reported more accurately.

	MR. MADDUX:  But are they actually able to conduct some analyses of
MSDs?

	MR. LeGRANDE:  Yes.

	MR. MADDUX:  So, they are able to.  How is that going, is that fairly
straightforward for them, is it very difficult?

	MR. LeGRANDE:  It really depends on the sophistication of the employer,
quite frankly.  By sophistication of the employer, I really mean if it's
a large employer or a small employer.  That is what it usually comes
down to, a large employer in terms of having the financial resources to
hire a full-time safety and health person, particularly if that person
has a background in ergonomics, for example, an industrial hygienist.

	We find that those employers record more accurately on the OSHA logs,
and smaller employers, again because the expertise is there on the
employer's side, to identify a particular type of illness and injury,
and then categorize it as such on the OSHA log.

	We do find at present, since the column was removed, on repeated
trauma, that is, that it is much more difficult for local union safety
and health activists to identify MSDs, because they are often
misclassified and misreported, or not reported at all.

	Employers are not docs or hygienists.  They don't know what a
tenosynovitis is, or a tendinitis is, or an epicondylist is, or the
other lengthy list of itis's and disorders might be.

	MR. MADDUX:  The duties analyses, do they find them useful in their
prevention efforts, are they able to actually get some utility out of
that data?

	MR. LeGRANDE:  Yes, they do.  They present this information again.  I
work with the local unions in developing the reports, and we, in turn,
present them through the joint collective bargaining safety and health
committees, or collective bargaining agreement where there is not a
safety and health committee to address the issue with the employer to
put the issue on the table, so to speak, with the employer, and work
toward resolution of the identified problems.

	MR. MADDUX:  That is all for me.  Sarah?

	MS. SHORTALL:  Thank you for coming today, Mr. LeGrande.  In the
industries where you have members, how would you characterize those
industries, primarily small employers, larger employers?

	MR. LeGRANDE:  I would say it's a mix.  It is not necessarily all large
employers.  On the telecommunications side, of course, we represent AT&T
and Verizon, and those you could characterize as large employers.  We
also represent Quest, a mid-sized employer now, and we represent other
employers in that industry like Frontier, that are much smaller.

	In an aggregate sense, they have thousands of workers, but on a
workplace-specific basis, you might find as few as 5 to 10 employees in
a work location, so we really have a mixed bag, but on
telecommunications more large than small.

	In manufacturing, as we have seen, the movement, using a polite term,
the movement of manufacturing overseas, or south of the border, we have
seen our large employers make those moves.  You have probably heard just
recently that Whirlpool is moving to Mexico from Evansville, Indiana,
and taking 1,000 jobs from Evansville to Mexico.

	This is an employment relations meeting, so I won't elaborate, but what
that has caused the union by the movement of large employers, GM is
another classic example, as well as GE, it has left us with smaller
bargaining units, smaller employers, and again it really has made it
more difficult for the union to work on "work and resolve" safety and
health issues because of the more limited resources that these small
employers have.

	MS. SHORTALL:  At the companies where your members work, do most of
them use electronic recordkeeping?

	MR. LeGRANDE:  Most of them do.

	MS. SHORTALL:  Do you think that any of those employers would have
major difficulties updating their electronic recordkeeping systems to
include an MSD column?

	MR. LeGRANDE:  No.

	MS. SHORTALL:  Could you explain why you say that?

	MR. LeGRANDE:  These employers already use computerized systems, so
there really would be no burden placed on them at all, that they don't
already have, quite frankly.

	MS. SHORTALL:  You don't think there would be a burden for them to
update their whole system, so it now includes an MSD column?

	MR. LeGRANDE:  No, I don't think it would be a burden upon them.

	MS. SHORTALL:  All right.  Thank you very much, appreciate your coming
here today.

	MR. LeGRANDE:  Thank you.

	MR. MADDUX:  Our next speaker is Karen Harned from National Federation
of Independent Business.

	MS. SHORTALL:  Before Ms. Harned speaks, Mr. LeGrande, do you have
copies of your written testimony that you would like to give us and put
in the record?

	Thank you.

	MR. MADDUX:  Great.  Thank you.

	MS. SHORTALL:  Ms. Harned, did you have written copies of your
statement that you would like to put into the record?

	MS. HARNED:  I do not with me.  Is that something I can submit
afterwards?

	MS. SHORTALL:  If you would like to, sure.

	MS. HARNED:  Thank you for the opportunity to provide comments today
regarding OSHA's effort to make these proposed changes to its 300 Log.

	I am Karen Harned.  I serve as the Executive Director of the National
Federation of Independent Business, a small business legal center.  The
small business legal center is the legal arm of the NFIB.

	NFIB is the Nation's leading advocacy organization representing small
and independent businesses.  Our membership spans the spectrum of
business operations ranging from sole proprietor enterprises to firms
with hundreds of employees.

	While there is no standard definition of small business, the typical
NFIB member is going to have around 10 employees and report gross sales
of around $500,000 a year.

	The NFIB membership is a reflection of American small business, and I
am here today on their behalf to share a small business perspective with
OSHA.

	OSHA's proposal to add a musculoskeletal disorder, MSD column to the
OSHA 300 Log raises several flags for small businesses.  We fear that
once again, OSHA's top estimates for compliance are severely
understated.

	In this proposal, OSHA estimates that compliance will require five
minutes for management to read and sufficiently comprehend the standard.
 Then, it estimates that correctly identifying an MSD and marking the
log will take an additional minute for each entry thereafter.

	This estimate demonstrates OSHA's fundamental misunderstanding of how
small businesses operate and the likely actual cost that small
businesses are going to incur to comply with the rule.

	In the majority of our members' businesses, the task of complying with
this rule is going to fall on the small business owner.  Being a small
business owner often means that you are responsible for everything
including balancing the books, ordering inventory, hiring employees, and
serving as the Chief Safety Officer for your business.

	For a small business owner, good-faith efforts to comply with vague,
overly technical, and hard to find regulations can require significant
time away from their business, time that could be better spent growing
their enterprise and employing more people.

	Here are just a few ways that small business owners may not be able to
comply with this rule and the time that OSHA is currently estimating.

	At the outset, it could take much longer than five minutes to
comprehend the requirements since small business owners are not
specialized in handling issues like this.  Small businesses lack the
resources to hire specialized regulatory compliance staff and
identifying whether or not an MSD was sustained or would be aggravated
in the workplace is going to be far more difficult for them.

	Small business owners are not medical practitioners and OSHA's
assertion that the responsible person would only take an additional
minute from the time they take now to mark the form fails to recognize
that the time to make the entry determination is going to go up, as
well.

	The new definition of MSD will add layers of complexity for small
business owners trying to determine the type of injury that they are
faced with.

	Lastly, because they fear they could be found out of compliance by
OSHA, it is likely that small businesses will over-report MSDs.

	These are the kinds of considerations that are likely to have been
brought to OSHA's attention if the draft rule had gone through reviewed
by a SBREFA panel.  That kind of review is required for a rule that
would have a significant economic impact on a substantial number of
small entities.

	We understand that you think as percentage of revenue and profit cost
triggers, OSHA certified to SBA that the rule would not have a
significant economic impact on small entities, and thereby avoided
having a SBREFA panel.

	But it is clear that contrary to applicable legal requirements of 5 USC
Section 605(b), that certification did not have a factual basis.  To say
that compliance will require five minutes initially, and one minute for
each case thereafter, is highly inaccurate to say the least.

	Before this proposal goes forward, NFIB calls upon OSHA to go back and
calculate a realistic estimate of the time that is likely going to be
required for compliance with the rule, and then submit another
certification to SBA based on a genuinely accurate factual basis for the
estimate of costs for small businesses.

	We are hopeful that the process of doing this will reveal the real
effect of the proposal on our members and perhaps persuade OSHA to
modify its approach to this rule for small business.

	OSHA is aware the MSD component of the OSHA 300 Log was part of the
Agency's larger effort a decade ago to promulgate a nearly 5 billion per
year rule on ergonomics, therefore, the small business community is
deeply concerned that OSHA is planning future action to replicate this
highly contentious rule.

	After hearing the discussion at the recent OSHA Listens session, we are
concerned that OSHA will use data collected as the result of the
proposed change in MSD recordkeeping to somehow inject ergonomics
regulation into a safety and health program standard that OSHA seems to
be contemplating.

	OSHA has indicated that adding an MSD column to the log in no way means
that it is looking to revive the ergonomics proposal.  We hope that this
is true.  If, however, OSHA pursues the ergonomic regulations in some
form, we hope that the Agency would make a decidedly stronger effort to
engage small businesses in the process of discussing any proposal before
it has developed an issue.

	Let us work in conjunction to assure that workers are safe and
businesses are not heavily burdened particularly in this economy.

	As OSHA moves forward with the MSD proposal, it should make a concerted
effort to help small business owners.  For starters, the definition of
an MSD must be easily understandable by the lay person.  The more
complicated the definition, the more likely it is that MSDs are going to
be misreported by small companies.

	We believe that OSHA should clarify the term "work related" in its
definition of MSDs and indicate that the term means only MSDs that occur
because of a situation at the workplace, not because the injury
occurring elsewhere is aggravated at the workplace.

	This is especially important if the rule is going to define an MSD to
include common symptoms like tingling and lower back pain.  OSHA should
also define a detailed compliance assistance program for the rule, that
goes well beyond merely listening to definitions of MSDs on a web site.

	Ideas for compliance assistance training materials could include a
training video explaining MSDs, that would be available on the web site,
assigning staff to field questions from small businesses trying to
determine what type of entry they are confronted with and assuring those
small business owners that by calling, they are not becoming the target
for enforcement, and a web page that frequently asked questions from
small businesses is posted on with easy to understand answers.

	On behalf on NIFB and our members, we do appreciate the opportunity to
express our concerns of this proposal.  We believe that OSHA needs to
put itself in the shoes of small business owners as it moves forward,
not just with this proposal, but with others.

	Small business owners greatly value the safety of their employees.  In
many instances, they are their family members, to the extent they are
not, they very much view them as part of their family.

	Please take every step possible to ensure that the rule is not overly
burdensome to them.

	Thank you.

	MR. MADDUX:  Thank you, appreciate the comments.

	I would like to go through a couple of points that I went through with
a small business representative earlier, and that is, first of all, that
the Recordkeeping regulation, as a whole, exempts all employers with 10
or fewer employees.

	MS. HARNED:  Right.

	MR. MADDUX:  And it exempts all employers regardless of size in a
number of industries, so huge numbers of employers are exempt from
keeping records at all times.  They keep them just periodically to help
with the BLS surveys, and so forth.  I just want to make sure that
people understand that.

	The time component, when we talk about the five minutes and the one
minute things, that these are incremental costs above what employers are
doing now and at their average cost per case.

	So, it isn't that we think that it is five minutes to learn all of the
Recordkeeping rule or everything about the MSDs, it is just five minutes
to learn how to check a column for a case that they are already
recording on their logs, which is another key point.

	We are not asking people to record new cases here.  We are just asking
them, after they record a case, to check the MSD column.  The context of
it I think needs to be kind of just kept in mind is all that I am
pointing out.

	I think you raised some very good points especially about an easily
understood definition.  This is a continuing problem with a number of
these areas, and so we would certainly welcome any kind of a comment
that your organization would have about how to create a more
understandable definition for small businesses and for employees and
everybody that is involved.

	That is certainly a major goal.  I don't know if your organization has
any ideas in that area.

	MS. HARNED:  We are planning on submitting comments, and I will take
that into consideration as we continue to deal with that.

	MR. MADDUX:  We really would welcome that.  Your ideas on compliance
assistance are very, very helpful.  I would say that this is an area
where, you know, we have people right now who answer these kinds of
calls both on our 800 number, we have recordkeeping specialists at each
one of our regional offices.

	They are handled by people in our consultation programs at the State
level, and at all of those calls, people really should understand for
everything that they call OSHA with.  We have lots to do, we are not
like using the caller ID to figure out where to go and visit people
because we don't have time for that.

	So, when people call and ask questions, we try to answer their question
to the best of our ability, but I hope people really do get the message
that there is no retaliation for calling OSHA or for going on the web
site. We have heard this same sort of urban legend many times over the
years.

	MS. HARNED:  We hear it from our members.  I mean there is a genuine
concern there that is tracked, I try to assure them that they are not,
but I just want you to know that.

	MR. MADDUX:  I have been hearing that for as long as I have been with
OSHA, and I just want to make sure that I say as strongly as I can that
that is just not the case, that is not how it works, and we have no
interest in doing that.  We have plenty of real problems, and we have
certainly no shortage of people that we need to go and visit.  It is not
like we are trying to find people through some sort of phony mechanism.

	I would also point out that we have on our web page now, we have a
completely separate page devoted to recordkeeping, that has the FAQs and
that has various types of materials that people can use to help
themselves comply with these requirements, and we will certainly be
taking a look at those.

	Anytime you have some wonderful ideas, if you want to elaborate on any
of those in your written comments later on, that would be very, very
helpful, because it says this is in many ways a very hard to reach
audience for OSHA as I think it is for almost any government agency.

	So, any thoughts that you have about effective ways to get information
to this group of employers about what they need to do and to help them
just kind of do it with the least amount of difficulty would be greatly
appreciated.

	I have a couple of questions.  Do you know if your members use
computerized recordkeeping systems or electronic systems?

	MS. HARNED:  No, we really don't have good data on that, and that again
is a great question that I would think the SBREFA panel would be able to
really delve into more and understand.

	Again, we would encourage you to get a SBREFA panel on this, and also
make sure that when you do, you are looking at those employers that are
a little less sophisticated that would be required to comply with those,
you know, those that have 20 or fewer employees, because we just again
see that is the kind of analysis that needs to be done on the front end,
because again, we don't have the answer ourselves.

	I mean anecdotally I know I have walked into businesses and I see paper
records, but that doesn't mean that everybody is doing paper records.

	MR. MADDUX:  It is very difficult to assess and it is something
obviously that is sort of changing fairly rapidly over time.  I know,
for example, there are a lot of vendors that sell software to various
businesses to do just exactly this sort of thing, but I just have no way
of knowing how many people actually buy it and use it.  So, we are just
trying to ask people to find out.

	That is all I have got.  Sarah.

	MS. SHORTALL:  Does Bob have any?

	MR. MADDUX:  Bob?

	MR. BURT:  I have a few questions.  I am Bob Burt.  Let me welcome you
here.

	On the small business side, as Jim emphasized, this is an incremental
lesson, this is one column, one instruction, which you can read by
flipping over the form.

	We estimate it takes five minutes to read that instruction and make an
appropriate check mark.  The person already needs to have in front of
him a description of the injury or illness they are entering into the
log.

	Why do you think it will take more than five minutes?

	MS. HARNED:  Just knowing, again, this is something that I do
encourage, I really think it is SBREFA panel that is required here, and
I would say that in talking with our members, and what we see, it really
takes them a long time to even find out where do I get these
requirements.

	You know, the web site is not necessarily that easy for someone to use,
or the other tools may not be necessarily things that they have on hand,
because they are not just a compliance officer, they are often the
business owner themselves.

	I would also say with regard to this that if you look at certain
industries or types of businesses in particular, with this kind of
injury, you really are I think asking the small business owner to play
doctor, and just assessing whether or not did they really get this
tendinitis from the job or was it because Jerry plays tennis every
weekend.

	I mean I am concerned that they will struggle with that, and that will
take time because they are going to want to report it correctly, and so
I do think that that is an issue.

	MR. BURT:  You do realize that they already have to make that call,
whether it is work related or not.  There is nothing new here.

	MS. HARNED:  Right, but you are adding a new category, if I understand
it, of things that they are going to have to do, like putting things --

	MR. BURT:  No, we aren't, I am sorry, let me clarify.  We are saying
nothing is changed about what is reported.

	MS. HARNED:  Well, but they are going to have to designate it, right.

	MR. BURT:  Right, that's it.

	MS. HARNED:  And they are going to have to determine that this is an
MSD or they could get charged with a recordkeeping violation.  I mean
that is the concern, is are we checking on the right boxes, and I don't
think that is an assessment that somebody that doesn't have a lot of
expertise can do in a minute.  I just don't believe that.  I would like
to see a SBREFA panel on that.

	MR. BURT:  Now, let me ask, the SBREFA panel requirements are for
significant impact on a substantial number of small firms.  The average
firm affected by this rule records one MSV per year.  How expensive
would this have to be for you to consider it a significant economic
impact in the sense of SBREFA?

	MS. HARNED:  Well, again, I just think that in this instance, you know,
actually if I could, you know, when we went through this before, because
this really is a lot like ERGO was 10 years ago.  I just think it is in
OSHA's interest to do a SBREFA panel on that.

	I think there is a lot of confusion around this. I think that will get
information that can only help you, and I just -- I personally don't
understand why, especially when you are dealing with designating
something that can occur off the job and be aggravated on the job, I
just don't understand why we can't do a SBREFA panel on this to get it
right going forward.

	For me, this one screams for a SBREFA panel.  That is all I have to
say. I just do not believe that the estimates you have ring true for our
members.

	MR. BURT:  Okay.  Let me again thank you for coming here today.  Any
help you can give us, problems with what we have written, problems you
would anticipate with the definition, things like that simply the
process of people, small businesses even realizing they need a new Form
300 to enter things into, any comments along that line would be very
helpful.

	MS. HARNED:  Okay.  Yes, definitely.

	MS. SHORTALL:  I also have a few questions to ask you, too, and thank
you, first of all, for coming here this afternoon to give your
presentation.

	Does NIFB do training for its members on understanding new OSHA rules,
such as recordkeeping?

	MS. HARNED:  Actually, I ran our legal center, and we try to be very
aggressive in helping our members understand what the laws are that
apply to them and the regulations, so, yes, I would definitely -- I mean
this is the type of thing that we would do training on.  We use
webinars, we use advisory materials that are put on line.  We try all
different manners of ways to communicate exactly the sort of things to
our members when new regulations come out that affect us.

	MS. SHORTALL:  So, when OSHA published its revised Recordkeeping rule
in 2001, NFIB did offer training to all of its members on the rule?

	MS. HARNED:  Well, we were new at that point. The legal center has been
around since March of 2000.  I do know that we published advisory
materials that touch on that.  Did we do a specific training on OSHA?
That was pre-me, but I don't believe so.

	That is something that as we have gotten older at the legal center, we
have worked to become ourselves more sophisticated in helping with these
things where we know that the small business center is not going to have
its clients --

	MS. SHORTALL:  Do you offer periodic training on certain key areas in
OSHA like recordkeeping, so every two or three years you offer a new
training webinar to your members about the Recordkeeping regulation?

	MS. HARNED:  To date, we have not actually done one on OSHA
recordkeeping.  That is a good suggestion, though.  This type of format,
the webinars is relatively new for us.  I guess my point is we are
trying, and we have limited resources, too, but that is definitely a
void that we see, that we can help fill for them, so that is actually a
great suggestion for us, because like I said, the OSHA 300 logs are
definitely something that we touched on through different types of
advisory materials, whether it is a fax sheet or a more comprehensive
Federal handbook, and we also have a guide to OSHA infection, but as far
as interactive training, that is a great idea.

	Now, I should also tell you they are busy running their business, so
it's not like we are anywhere close to 100 percent participation on
these things, but it is definitely something where we would -- you know,
that is a great suggestion as to something we could be doing now, and
then this, to me, has always put it up as the kind of example of
something going forward.

	MS. SHORTALL:  Do you ask your members what do you need training in?

	MS. HARNED:  Yes.

	MS. SHORTALL:  Have you had any big demand from your members I have got
to get OSHA recordkeeping training because even though the rule has been
in effect for a number of years, I don't get it, and I can't record?

	MS. HARNED:  Not that I am recalling, but I would have to go back.
Actually, I would need to go back and look at that, because we solicit
in different ways, and I just feel like I am not able to answer that at
the moment.

	MS. SHORTALL:  Do you have any members, groups of members are coming to
you and saying I don't understand how to figure out if an injury
occurred at work or was aggravated by work, tell me what to do?

	MS. HARNED:  Again, I would want to come back and look at our logs, but
I definitely know we do have a call-in number ourselves, and I know that
we have gotten a number of calls from OSHA, an OSHA-related call.  I
have confusion there.  I am confident that that confusion exists.  I
just can't speak authoritatively without reviewing those logs.

	MS. SHORTALL:  Would you say generally that your members, after eight
years, have generally understood the Recordkeeping rule?

	MS. HARNED:  Again, you know, I go back to the fact that we need a
SBREFA panel, because I don't feel like I can answer that question even
with going back to more research.  I feel like that is what SBREFA is so
great at doing this, taking this up, and figuring out do we have an
issue here.

	I mean it could come back and there is not an issue, but I can't say
that authoritatively.

	MS. SHORTALL:  Could you tell me a little bit about your membership?  I
mean what percentage of your membership would be employers with 10 and
fewer employees?

	MS. HARNED:  I think we are about -- it is definitely our average
member, I would say probably 60 or 70 percent.  Eighty percent have 20
or fewer, let's put it that way.  I am fairly confident on that number.

	It is only 20 percent that you are going to see are going to have 20 or
more, and then start getting into the category where they are more
likely to have -- out of 350,000, that is only 70,000 members.

	MS. SHORTALL:  So, that remaining 20 percent, what would you say the
average employment size is for that group?

	MS. HARNED:  I will have to get back to you on that.

	MS. SHORTALL:  That would be really helpful, so we could understand
your use of that.

	Small businesses are concerned that they may not be marking the
recordkeeping forms correctly.  Are they currently over-reporting
injuries and illnesses now because of that fear?

	MS. HARNED:  Again, I really think we need to have a SBREFA panel on
this.  I think this is again an example of something you would learn
from that.

	Anecdotally, you know, anecdotally, I don't even know that I felt
confident answering that question.  I know that our members tend to err
on the side of caution, so I would not be surprised at all to learn that
they are over-reporting.

	Just myself, since I have been in this job, getting familiar with the
recordkeeping requirements, you know, it is easy to get tripped up under
the current rules.  I mean if somebody goes for an MRI, oh, my goodness,
isn't that terrible, I am going to put that on my log.  Well, that's not
treatment, that's diagnostic.

	I mean I could easily see a small business center, who is going to use
common sense, reporting things that may not otherwise need to be
reported.

	MS. SHORTALL:  This morning the representative from AIHA suggested it
would be helpful if OSHA provided some guidance as to some of the risk
factors that might be associated with musculoskeletal disorders
including that information as guidance or somewhere.

	Would you find that information helpful to small businesses, too?

	MS. HARNED:  Well, yes, definitely, I mean anything that you can
provide that is going to help break it down for them in a more easy to
understand way, they are going to welcome.  I really do again think that
this whole discussion, you know, points out the fact that more research
needs to be done on exactly how this is going to impact small business.

	I just don't think even we have the answers at NFIB for the numbers
that we represent.

	MS. SHORTALL:  Thank you very much for coming this afternoon.  I have a
request as you are preparing your material to come in, we welcome not
only hearing directly from NIFB, but if any of your members would like
to submit comments between now and March 30th, we would welcome that.

	They can do as easy as just going on to regulations.gov, and sending us
something across the computer, and they could save their stamp.

	MS. HARNED:  Okay, great.

	MS. SHORTALL:  Thanks so much.

	MR. MADDUX:  I am going to suggest that we take a short 15-minute break
and then come back and wrap up the remaining speakers.

	[Break.]

	MR. MADDUX:  Let's see if we can get started up again.

	The next speaker will be Larry Halprin.  Whenever you are ready, Larry.

	MR. HALPRIN:  Thank you for sticking around for the afternoon matinee.
The popcorn and concession is out in the hallway, courtesy of OSHA, of
course.

	Good afternoon.  My name is Larry Halprin.  I am a partner with the law
firm of Keller & Heckman in the Washington, D.C. office.  I am here
today on behalf of the National Association of Manufacturers, the U.S.
Chamber of Commerce, and some other organizations with shared interests.

	What we are providing you today is a preliminary response to this
proposal, which OSHA describes as a proposal to restore the MSD column
on the OSHA 300 Log.

	I will summarize the points we are going to make, briefly review the
statutory authority for OSHA's activity, and then elaborate on those
points.

	Before I jump into that, at the risk of repeating some things, I would
like to try to clarify a couple points.  For a case to be recordable,
there has to be injury.  An injury is basically defined as an abnormal
condition or disorder.

	If anybody can tell me what that means, I would like to hear it, but I
don't really have a good idea.  If you have a cut, maybe that's obvious
because there is a physical manifestation.

	When you have a symptom, if you are not the bionic man or the bionic
woman, there is nobody who has a perfect sense of wellness that I know
of every day.  I would love to be that person, but I have never met
them.

	So, then, the question is, okay, what is this abnormal condition.  The
reality seems to be that you go through the steps and say is the
condition work related, is it new versus some pre-existing condition,
and then you get to the general recording criteria.

	The recording criteria of whether something resulted in days away,
restricted duty transfer or medical treatment, in a sense become the
severity criteria that basically circle back and tell you whether you
had an injury in the first place, and that is a major problem with the
rule.

	The statute talks about recording significant injuries and illnesses.
There is certainly language in there about days away, restricted duty.
The problem is that the simplistic way through administrative
convenience of making this whole scheme work nicely is to say, well, you
have something other than perfection, maybe that is an injury.

	You have a decision as to whether you call it an injury or not, but you
take a risk that if you make the wrong call, you are going to be cited.
Then, you go the next step and say, okay, maybe it's an injury.

	Is it work related?  Well, I don't know.  If it's an MSD, it is not
nearly as clear as just about any other injury you can find.  Cuts are
pretty clear.  Bruises are pretty clear, you see them.  If you have got
a broken bone, they are pretty clear.

	MSDs to me are in a category all by themselves. There is frequently no
objective diagnostic criteria to use, so you end up relying on
subjective reports from employees about their particular condition.

	So when the comment comes from OSHA that all we are asking you to do is
put a check on the case that you have already recorded, I think that is
incorrect.  There are cases that are currently recorded now, because it
looks like it might be an injury, it looks like it might be an MSD, and
in order to make a determination about whether it was pre-existing, or
new, or caused by something in the workplace, it will frequently take
consultation with an occupational physician at great cost. You have got
to send the employee out and have him examined.

	So rather than going to all those expenses of paying for these medical
professionals and having somebody off from work for various diagnostic
tests, there are going to be some employers who will simply, right now,
decide to record the case, and the sanction for that, unless there are a
lot of them, is not tremendous from an OSHA enforcement standpoint.

	On the other hand, it seems to us that the preamble to this rule, and
the general political environment, and the OSHA Listens Conference, and
everything else, suggests that there is going to be an intent to go out
after people with MSDs on their logs, and there is an NAP on OSHA
recordkeeping.

	You put all those things together and the employers who had been
saying, well, maybe it's a recordable case, but I don't want to invest
all that time and money in doctors and time away, is now going to say I
can't afford to do that anymore, I am going to be targeted for
enforcement, so now I am going to go spend the money for those cases.

	In addition to that, there are currently cases that you don't really
know whether there are injuries or not, so you say, okay, there is a NAM
settlement agreement with OSHA where OSHA basically said various parties
in the rulemaking have said we should have some sort of preventive
transfer restriction, some language to that effect.

	We decided not to do it, we got sued, we settled by agreeing to allow
for that particular type of restriction to be used, and now, in a press
release in a preamble, we are saying all we are changing is the column,
but when you look in the eighth page of the preamble, you find out they
are actually planning on revoking that interpretation after eight years.

	So, we are not talking about suddenly an incremental risk, we are
talking about cases that have not now been legitimately not recorded,
because somebody made a determination that they weren't an injury, or if
they were, that they weren't serious enough, and they fell within
whatever you want to call that interpretation or exemption, and OSHA is
now saying, well, we are going to pull that exemption, at least it is
proposed to do that.

	So, the Agency hasn't been straightforward with us, for the people that
are immersed in these rules and understand them, they can pull out from
a buried discussion that OSHA is planning on changing a rule, but for
most of the public, that goes totally unnoticed.

	If the rule is changed, now we have a whole slew of cases that either
weren't treated as injuries before or were treated as minor injuries
that didn't require recording, and now there is going to have to be a
determination do we want to take the position they are not injuries, or
do we want to take the position they are injuries, but they are minor
and they are not supposed to be recorded even though we have got
language from OSHA that seems to be taking away the ability to do that.

	So, when you say is this an incremental cost of checking a column, no,
it is not, and if you ask somebody how they are going to pay for this
and what it is going to cost, it is an impossible determination because
you are in  a circle.  If you don't know what cases are going to be
recordable, because you don't know what the rule is going to say, then,
it is impossible to determine the cost.

	Now, with that introduction, I will skip back to what I was going to
say before that came up.

	In our view, the proposed rule would improperly cause employers to
record injuries that aren't significant, and in some cases, have no
meaningful relationship to the workplace.

	The definition of the term MSD is both over-broad and so vague as to be
incomprehensible.  You might say the definition seems to be clear, but
by the time you throw in subjective symptoms, which basically modifies
the definition, you end up with something that is incomprehensible and
basically seems to treat everything short of perfection as an injury.

	The use of the proposed definition of MSD with the inclusion of these
subjective symptoms is going to produce materially inaccurate records,
misleading records, and won't provide the type of quick glance value
that supposedly is going to be provided by having a check.

	The proposed rule is going to require employers to make determinations
that go well beyond their abilities.  I am talking about whether a
condition is work related, whether it is new, whether it's an injury,
whether there is a pre-existing condition.

	So, either the employer is going to have to learn how to do this, or
they are going to be forced at enormous cost to send every potential MSD
case to a qualified medical professional to assist in making the
determination in the hope that they will be able to make the
determination, recognizing that many medical professionals will be
unable to make those determinations.

	So, the practical effect is the employer is going to be put in the
impossible position of recording the case and classifying is it MSD, or
making immediate and expensive, and extensive inquiries in employee's
medical history, and I am not talking solely about their work-related
history.

	Anybody who would try to evaluate a medical case would look at an
employee's entire history, and then the question is how the employer
would have access to all the medical records, there are privacy issues
involved, in order to make that determination.

	In addition to, I believe misleading the public about the proposal in
terms of the change in the recording criteria for restricted duty cases,
as I mentioned earlier, OSHA appears to be proposing a change in the
definition of MSDs, that would classify all of them as illnesses rather
than injuries, as was stated in the final OSHA program rule.

	I will submit some pages to OSHA, but it is basically in 65 Federal
Register 68270 to 72.  There is an extensive discussion about the fact
that these cases are injuries.

	So, finally, in light of all these changes that would be affected by
this proposal, the measures that would be required to properly implement
it, we believe it is clear that OSHA's estimate of the cost of
compliance underestimates the real cost by orders of magnitude.

	We agree with NIFB that OSHA's certification, the rule would not have a
significant impact on small business, there is no factual support.

	Now, believe it or not, that was just a summary of what we had to say.
I will summarize the statutory provisions.

	Basically, Section 8C2 and 24A and AC1 of the Act are the relevant
provisions.  They authorize the Secretary to maintain accurate records,
not just records, of work-related deaths, injuries, and illnesses other
than minor injuries, and that means they have to be disabling, serious,
or significant.

	We do not think that minor musculoskeletal discomfort falls into that
category.  If OSHA has some concern that some cases are being pushed
into that category, then, it is up to OSHA to redefine in a better way
what minor musculoskeletal discomfort is, describe an algorithm,
describe a scale, not simply do away with it to get rid of a problem,
and then create the recording of what I think Steve Newell of ORC would
call silly cases that don't have any credibility on a log.

	Read together in accordance with the applicable legal principles for
clarity, we believe the reference provisions of the OSH Act, direct OSHA
to adopt reasonably clear injury and illness recordkeeping rules that
will result in the creation of accurate records of significant
work-related injuries and illnesses, which will assist OSHA employers
and employees in furthering the objectives of the OSH Act.
Unfortunately, we believe this proposal fails to meet the statutory
requirement and is outside the authority granted to OSHA for these
purposes.

	We believe the proposal will result in employers recording cases of
minor subjective symptoms rather than significant injuries and
conditions that do not have an adequate nexus to the workplace.

	In addition, employers will be forced to spend inordinate resources in
an attempt to comply with this rule, and the final product will be
inaccurate records of little value.

	Now, the shortcomings in the proposed rule are due to many factors.  We
discussed some of them over 10 years ago.  There is certainly still an
inadequate understanding as to the causal factors for conditions
referred to as MSDs.

	Studies published by the Cochrane Collaboration, Stanley Bigos, et al.,
since 2000, have raised questions about the continued reliance on
biomechanical theory of MSD causation and the remedies based on that
particular theory.

	We note that OSHA has not made any effort to suggest that its analysis
to science related to causation has been in any way updated over the
last 10 years, and it seems as though OSHA has assumed that the
scientists remained static over that period.

	Even a short bibliography review would show that there has been a
substantial amount of research in that area that underline at least many
of OSHA's 2000 ergonomic theories.

	The statute talks about recording significant injuries and illnesses.
If the phrase significant is meant to be given any true meaning, the
rule that defines cases as recordable must distinguish between those
that are transient manifestations of discomfort and those that are
medically recognized as serious conditions.

	It appears that as a practical matter, every complaint of pain,
soreness, or discomfort that an employee would report to an employer
under this proposal, if accompanied by some concern that the employee
might not be able to perform all functions of the job, would cause the
case to be recordable, or if the employer took the conservative approach
and implemented a work restriction to prevent what we consider minor
musculoskeletal discomfort from becoming significant.

	OSHA's proposal would, in effect, remove the word significant from the
definition of recordable cases in Section 24 of the Act, and this is a
point again that was made by Steve Newell of ORC.

	To avoid erroneously recording a case that is not new, work-related, or
significant aggravation of pre-existing condition, the employer will be
required to develop sufficient medical expertise among supervisory and
human resources personnel to know when an employee would be capable to
continuing in a job and when activity would pose an unreasonable risk of
further injury.

	Alternatively,  the proposed rule would force employers, at enormous
cost, to send every potential MSD case to a qualified medical
professional to assist in making these determinations.

	Furthermore, when you send an employee to a clinic, typical nearby
clinic, they will rarely have access to the employee's full medical
file, and it is likely under those circumstances there will be many
erroneous determinations as to whether conditions are new, whether they
are actually injuries, and whether they are work related.

	We believe that OSHA recognizes that the etiology of MSDs is often
multi-factorial and it will often not be clear whether the precipitating
event occurred in the work environment or elsewhere, but the 2001
Recordkeeping rule placed employers in the impossible position of
balancing the privacy interests of the employee and his or her medical
records and the regulatory directive to discover whether the employee
has a recordable MSD.

	The adoption of this proposal will return employers to that impossible
choice.

	Before the 2001 rule took effect, the Secretary recognized that liberal
interpretation of the rule was likely to undermine the practice followed
by many employers in implementing proactive work restrictions or
transfers to prevent a condition that would be described as a minor
musculoskeletal discomfort from progressing to the severity of
reportable injury.

	We say undermine in the sense that the rule would have converted these
insignificant conditions to reportable cases.  That was one of the
factors that led NAM to file the suit against OSHA's Recordkeeping rule
in 2001.

	The suit was resolved and there was a settlement agreement between NAM
and the Secretary.  Under that settlement agreement, the Secretary
agreed to include the following interpretation in the compliance
directive for the rule:

	"The case is not recordable" -- I will leave out the sections -- "as a
restricted work case if the employee experiences minor musculoskeletal
discomfort, a health care professional determines that the employee is
fully able to perform all of his or her routine job functions, and the
employer assigns a work restriction to that employee of the purpose of
preventing a more serious condition from developing."

	The exemptions, safe harbor provision, whatever you would like to call
it, was designed to ensure that employers could continue to implement
truly preventive work reassignment modifications without the penalty of
having to record the case as a restricted duty case.

	The adoption of the provision reflected a sound public policy
determination by OSHA that favored encouraging proactive employer
measures likely to address in advance employee safety and health.

	As I mentioned, OSHA has incorrectly stated the proposed rule would not
change the currently applicable criteria if, as I understand it, the
proposal would do away with that particular interpretation.

	That interpretation in the NAM settlement agreement has been in place
for over eight years.  We believe the Agency is bound by it as part of
the regulatory text, and can only be changed through notice and comment
rulemaking, would adequately describe the change that is being proposed.

	OSHA has not done that.  The summary for this proposal does not mention
that.  The initial summary, pages 4728 and 4731 doesn't mention that.
You have to look into some further explanation buried 8 pages back, and
then it says -- this is after, of course, OSHA has issued a press
release saying the only thing it is going to do is change the column,
the addition of a column.

	There is no mention of the fact that OSHA is proposing to change this
material provision of reportability until you get 8 pages into the
document, and then OSHA says, not that it is proposing a change to the
rule, but is planning on removing language from the compliance
directive.  I don't think that is the kind of public interest, turning
square corners disclosure that we would expect from the Agency.

	I am sorry I didn't make the OSHA Listens presentation the other day or
I would have said it then.

	Just to repeat, the January 28th OSHA press release says this rule does
not change existing requirements when and under what circumstances
employers must record musculoskeletal disorders.

	So, according to OSHA, it rejected suggestions during the rulemaking to
create this exception.  The Agency's rationale, which I believe is
circular, was that the concept wasn't relevant to the Recordkeeping rule
because it was vaguely defined, work-related injury or illness, then,
any subsequent transfer of restriction was recordable.

	Then, you get to the question, was there an injury, and you determine
whether there was an injury in the subjective case by looking at the
severity factors of whether there was a transfer or whether there was a
restriction of work.  Pretty circular to date.

	As you can understand, we don't find the rationale now offered by OSHA
in support of this proposed change the criteria for restricted duty
cases persuasive. The explanation is it has been made to avoid confusion
as to what is recordable.

	We see it as quite the opposite.  Employers currently understand what
minor musculoskeletal discomfort is.  Instead, it is not pain
manifestation of an injury of a type that a medical professional would
recognize, and by removing that language it appears that any reported
subjective symptom is now going to rise to the level of an injury or an
illness.

	OSHA offers a number of explanations as to why the MSD column would
provide valuable information to OSHA employers and employees.  OSHA
asserts that the MSD column would improve the quality of OSHA's national
statistics, and assist OSHA gaining an understanding of the number and
rate of MSDs as if MSDs were conditioned sufficiently in common
characteristics to logically place into a single grouping for purposes
of counting analysis and the development of interventions expected to
reduce their severity and frequency.

	Second, OSHA asserts the MSD column would assist the Agency in
targeting, inspection, outreach, guidance and enforcement efforts at
MSDs.

	Third, OSHA asserts that having the MSD column would assist employers
and employees in quickly identifying and tracking incidents of MSDs at
facilities.

	We believe all these points are based on a faulty premise.  MSDs are
not comparable to skin disorders or respiratory illnesses.  The etiology
of MSDs is far more diverse.

	As defined by OSHA, the term MSD refers to a broad spectrum of
disparate conditions that may adversely affect any tissue associated
with musculoskeletal system and otherwise have little in common.

	As the National Academy of Science determined, the etiology of MSDs
involves a complex combination of factors including physical factors,
genetic factors, obesity, and psychosocial factors among others.

	In other words, as I said, the grouping of MSDs into a category is an
artificial grouping of disparate disorders that have little in common.

	If all cases falling within this multitude of conditions, collectively
referred to as MSDs, are grouped into a single column, and the data is
collected for the annual BLS survey, the result is certainly likely to
be a projection by BLS of a relatively large, but we believe unreliable
set of numbers allegedly representing reportable MSDs.

	The numbers would be meaningless in the sense that they fail to provide
OSHA or other interested parties with the information needed to
determine the frequency, incident rate, causation, and means of
preventing any particular condition.

	OSHA also indicated the proposed rule would not change the currently
applicable criteria for reporting cases.  As I mentioned, and I won't go
into it again, in the fog of the confusion created by the proposal, it
appears that OSHA is attempting, without providing any notice or
soliciting any comment, to redefine all MSDs as illnesses rather than
injuries.

	As I mentioned, in adopting the ergonomics program standard, OSHA found
that the MSDs were all properly classified as injuries, classification
was consistent with the position taken by California's Occupational
Safety and Health Standards Board, and the California courts on
reviewing the repetitive stress injury regulation.

	However, OSHA's January 28th press release says U.S. Department of
Labor's OSHA proposes recordkeeping changes to improve illness data.

	Then, the term disorder, injury, and illness is used somewhat casually
through the document, but in about six strategic places, you see here
insertion of the word "illness" by itself.

	In our view, it would be highly inappropriate for OSHA to use this type
of a rulemaking with no public notice to try to effect that kind of an
important change in the characterization of MSDs.

	In talking about costs, I think you can tell from what we talked about,
this is not a situation of incremental costs, this is a situation of
going back and reexamining the way cases currently classified as MSDs
are classified, looking at a whole new category of cases which has been
treated as minor musculoskeletal discomforts and determining whether
they should now be recorded or not, and if not, getting the necessary
medical, legal, and technical support for determination that they don't
need to be recorded.

	Whether small businesses can afford those costs is questionable,
however, the costs will be enormous to go through that kind of a
process.

	Beyond extensive time and costs required to become familiar with the
regulation and implement it, employers will encounter the following
additional costs:

	Sending employees for medical evaluations to determine the nature and
severity of their conditions, the costs of any penalties OSHA poses due
to allegedly incorrect recordation, the costs of targeted inspections
and ensuing citations erroneously triggered by overstated total injury
or MSD rates because of overrecording, and the cost of challenging
adverse recordation determinations by OSHA.

	Finally, the adverse financial impact from the publication of
erroneously overstated and misleading total injury rates, MSD rates for
a particular facility, which are now available in OSHA's web site or
would be available under this particular approach for MSDs, as well as
other injuries, which will result in the loss of goodwill, potential
loss of government contracts, and whatever the effects are of OSHA's
announced use of shaming tactics to influence employers in their
markets.

	Clearly, OSHA did not consider all the relevant factors in certifying
the proposed rule would not have a significant impact on small business.

	For all these reasons, which we intend to address further in our
detailed comments, we believe it would be inappropriate for OSHA to
proceed with the proposed rule and it should be withdrawn.

	Thank you for the opportunity to make this presentation on behalf of
the National Association of Manufacturers, the U.S. Chamber of Commerce,
and related organizations.

	MR. MADDUX:  Thank you, Larry.

	I guess I would like to start out.  It sounds to me like you would have
us believe that the recording of MSDs is so impossible and so convoluted
as to make it almost an undoable course, and yet from what we have heard
today, it sounds like there are at least a million MSDs that are being
recorded in this country every year, right now.

	How is that employers are able to work through all those difficulties
without the entire economy collapsing?

	MR. HALPRIN:  There is a lot of doctors and lawyers out there.

	No, seriously, as I said, the question is in the current environment,
when it was just not targeting people for MSDs, there are some that are
willing to say okay, I won't invest the time and resources it would take
to sort all this out.

	There are some cases that will probably be the obvious, I am not going
to say they are all impossible to determine, but there are many that
will be difficult to determine.

	There will be many with various causes, outside jobs, psychosocial
factors, all kinds of other factors that would not normally be
adequately considered, and won't be adequately considered by the
organizations that can't afford to.

	They will simply record the cases and then we will have an
over-recording problem, and people will look at this agglomeration of
unrelated conditions and say we need to do something about it.

	MR. BURT:  I ask a follow up on a specific to that.  For as long as I
have been at OSHA, which is a pretty long time, low back pain has been a
major recorded injury or an illness.

	So it would seem that people are including quite routinely something
which is in the phrase used here, subjective, purely pain.  Yet, you are
saying this is new. How do you explain that people have been recording
this for decades?

	MR. HALPRIN:  I am not sure what I said was new. I don't want to put
anybody on the spot by taking a poll. Probably everybody in this room
over whatever age has suffered some back pain, and whether it is on the
OSHA log for this building or not, I don't know, but back pain is
something that is statistically, I believe most people in their life
experience, and I don't think except in a traumatic event, most people
realize whether it is through work or something else, and people make
their best guess.

	MR. BURT:  My question was more directed to you, you made quite a point
that there is something new about saying you have to record things that
are pain only. People seem to have been doing it.

	MR. HALPRIN:  What I am saying is the proposal, in my mind, changes the
recording criteria at least for restricted duty cases, and if it were to
be adopted as written, it would include all the silly cases, as Steve
Newell, whatever word he used, it might not have been silly, something
with an "s", didn't think it would be appropriately recordable.

	So, all I am saying is there are people now who look at the criteria,
take OSHA at its word that it really is supposed to be about significant
cases, and make a determination that a case is not an injury, or if it's
somehow an injury, that it doesn't come up to the level of beyond minor
musculoskeletal discomfort, and all those cases under this proposal
could be recordable.

	I can't tell, and I am not sure we will ever know, if it was written
like this until cases were litigated, which would be unfortunate, but
the language is so vague, this area has been vague for a long time, I
don't see clarity coming out of this proposal.  I see confusion.

	MR. BURT:  Thank you.  That is all I have right now.

	MR. MADDUX:  As part of your comments, you seem to provide sort of a
direction, potential direction in terms of trying to help provide
additional clarity, that the Agency should provide additional clarity
around this minor discomfort, MSD discomfort kind of issue.

	Do you have any practical suggestions for doing that?

	MR. HALPRIN:  Well, I do in a sense, but it is a little bit unusual.
There is a woman I met out in the audience who was explaining what she
does, I am not sure she would want to come up and talk about it, but she
would probably be better than I would to talk about it, but she was
describing that they use algorithms that I assume have some medical
support to make a determination about whether, on a scale from whatever,
zero to whatever number you want to use -- and I am throwing this out on
my own -- cases are properly treated as musculoskeletal discomfort, or
they are treated as something that would be considered an injury
requiring some sort of medical restriction.

	Using that algorithm, they identify cases that are considered minor
musculoskeletal discomfort, they put people in some other position where
they won't be exposed or maybe they will be some other way of avoiding
them being exposed to particular conditions until they have recovered or
their muscles hardened, do whatever is necessary, and that is a practice
that is followed around the country.  I believe it needs to be
preserved.

	We would certainly be happy to talk to people and work with some people
and come up with some materials, but I cannot see if that provision is
dropped, or that interpretation is dropped, that we won't be going
backwards and recording cases that have no purpose on the log.

	MR. MADDUX:  The next question really has to do with transparency.  It
seems to me that you are really sort of casting a bit of aspersion on
us, that we are not being transparent in our discussion about the
interpretation on restricted work, and yet it seems to me that this is
much more transparent process than the settlement agreement that created
the exception to begin with.

	Why isn't this transparent enough to do it in a Federal Register notice
where the entire public gets a chance to comment?

	MR. HALPRIN:  I believe that summary up front should explain what is
being proposed, and a press release should not say the only thing we are
doing is -- OSHA is doing -- is restoring an MSD column when that is not
true. That is just incomplete, it is an omission, and we have a
situation where the economy appears to be recovering, but it has got
some problems.

	There are not people staffed all over the place to read Federal
Register notices coming out in reams from one agency or another, and
someone could simply read that summary and say, okay, all they are going
to do is add a column, not know anything more about it, and ignore it,
and that wouldn't be fair.

	This isn't directed at anybody personally.  I just simply think the
Government could be a little more forthcoming and explain what it is
doing.  Part of the problem -- and there is probably some legal reasons
for it, which I don't want to speculate on -- this is the way it was
done.

	I am expressing a view that I don't think it was done properly, and
that the proper thing to do would have been to put a Federal Register
notice out explaining these changes, and since it wasn't done that way,
the proper thing now to do would be put another Federal Register notice
out that actually does highlight those changes and give people an
opportunity to comment on it.

	MR. MADDUX:  It seems like we have had plenty of opportunity today.

	MR. HALPRIN:  There are some people that read what is going on and try
to do their best to pay attention.

	MR. MADDUX:  Yes, I understand.

	MS. SHORTALL:  I have a few questions for you, Mr. Halprin.  When
employers are asked to identify whether skin disorders, respiratory
diseases, or hearing loss are a work-related condition, are they being
asked to go beyond their competence?

	MR. HALPRIN:  Not nearly to the same extent as MSDs, which commonly
occur in every walk of life.  I don't know how many people other than
people with some unusual conditions incur respiratory ailments outside
of work, noise outside of work.  It depends on whether you listen to
rock, use your lawn mower, snow blower without ear plugs.

	I mean I think those conditions that you are otherwise talking about
are much more likely to be related to work and much more easily
determined to be related to work, and much more likely to be from a
single cause rather than multiple causes.

	MS. SHORTALL:  So, are you saying that skin disorders, respiratory
diseases, and hearing loss are not common ailments in life, and only
occur in the workplace?

	MR. HALPRIN:  No, I am saying that my experience is most of them occur
in the workplace, and to the extent that they don't, they are much more
easily identified as the cause.

	MS. SHORTALL:  So, could you explain to me, for example, how does the
employer determine whether the hearing loss is the result of the
employee's experience in the workplace versus going to rock concerts
over the weekend, or being a fan of NASCAR?

	MR. HALPRIN:  Well, there is two things.  The number of MSD lost
workday cases was projected at, what was it, a million?

	MS. SHORTALL:  No, 335,000 last year.  Those are ones with days away
from work.  We don't know how many there were all together.

	MR. HALPRIN:  Okay.  The number of ear loss cases, as I understand it,
are far smaller.  There is a fairly rigorous OSHA hearing conservation
program that requires anybody who is exposed at 85 decibels or higher
over an 8-hour time-weighted average, to get an annual audiogram.  There
is diagnostics for that.

	Then, you look and see what the employee was exposed to at work, what
decibel levels, what frequency, and usually, some health professional
makes a determination as to whether it is work related or not.

	MS. SHORTALL:  So, what you are saying, then, is that even with many
other injuries or conditions, it is beyond the competence of employers,
and they are going to health care providers to have them assist and
giving advice and consultation, and whether something might be work
related?

	MR. HALPRIN:  That is true.

	MS. SHORTALL:  Okay.  You mentioned that OSHA or that OSHA is only
authorized to collect data on significant injuries and illnesses.

	How would you classify numbness in the hands and feet, and burning in
the hands and feet, is that significant, or is that something less than
significant?

	MR. HALPRIN:  I don't pretend to be a medical professional, so I don't
have an opinion on that.

	MS. SHORTALL:  I see.  How would you classify a rash?

	MR. HALPRIN:  I would say tingling certainly doesn't fall into that
category.  I get is sitting in some of these uncomfortable chairs.

	MS. SHORTALL:  I asked you about burning and numbness in the hands and
feet.

	MR. HALPRIN:  Well, tingling was one of the items in the Federal
Register.  I thought I would throw that in.

	MS. SHORTALL:  Okay.  On respiratory -- let's look at skin disorders
this time.

	MR. HALPRIN:  Which are not the subject of the rulemaking.

	MS. SHORTALL:  How does the employer know, or you are saying that the
employer, unlike MSD, the employer can look at a skin disease and decide
on the spot without having to go to a medical doctor or send that
employee to a medical doctor, that this is significant?

	How are they able to do that, but they can't talk with an employee who
has pain and numbness and determine that that is significant?

	I mean what is the difference, why is it looking at a person who, let's
say you have contact dermatitis, and you don't even see it, it doesn't
come out, but you are itching, itching, itching, how does an employer
determine both that that is significant, and that is work related, and
is able to do that, and yet is confounded by trying to do the same when
an employee presents with pain, numbness, or burning?

	MR. HALPRIN:  I am trying, being respectful, I don't know whether you
can get contact dermatitis, and not have some rash develop, to tell you
the truth, I don't think I would want to speculate on a hypothetical
that I don't know if it is real.

	The reality of it is from what I have seen, the causal factors for MSDs
are diverse and very difficult to tell, and some of them, many of them
are psychosocial factors.  I don't know of any other condition that has
those kinds of causal factors involved, the most complicated that I have
experienced.

	MS. SHORTALL:  So, you are saying that skin disorders don't have
multi-factors that could determine, or that respiratory diseases are all
based on one factor that determines whether or not you develop the
respiratory disease or the skin condition?

	MR. HALPRIN:  I know that OSHA has never proposed a rulemaking to
address skin disorders or respiratory ailments, and so there must be
substantially less problem identifying them or controversy in dealing
with them.

	MS. SHORTALL:  Or maybe they haven't done a single rule because they
are multi-factorial and they deal with them instance by instance, and
specific standards like, well, silica that is coming up, benzene, lead.

	I mean could that be the basis for why they don't have a single skin
disorder, because, in fact, it isn't a single factor, but, in fact, it
is multi-factorial?

	MR. HALPRIN:  No, I think the problem is that OSHA has a challenge in
trying to establish permissible exposure limits, and deals with
chemicals one at a time.

	MS. SHORTALL:  Clarify for me, if I am wrong, are you suggesting that
we could only have separate columns on the OSHA 300 Form for diseases?
We couldn't, if we wanted to, put a separate column for falls or
lacerations if we so wanted to do that?

	Are you suggesting that in order to have a separate column, it must be
an illness?

	MR. HALPRIN:  No, I never suggested it had to be an illness.

	MS. SHORTALL:  Are you suggesting that if OSHA doesn't put everything
that is in a notice in its summary that it is defective and illegal?

	MR. HALPRIN:  When the summary is otherwise misleading by the omission,
yes.  If you say you are going to develop a comprehensive program on
something, and you say that up front, and people know they are going to
have to look a little further back to get the details.  When the press
release says the sole action is going to be a change of column, and
nothing else is going to happen, and the summary says the same thing in
two different locations, then, I think the notice is defective.

	MS. SHORTALL:  So, anytime OSHA fails to put something in a summary, it
is a defective -- something that is included in our proposed rule, it is
defective.

	MR. HALPRIN:  No, that is not what I said.  What I said is when the
statement in the summary is very clear that this is all we are doing,
and in a press release that this is all we are doing, then, and it is
not changing as specifically says in the press release, we are not
changing the recording criteria, and that is an official statement from
either OSHA or the Secretary, then, I think it's misleading.

	MS. SHORTALL:  Could you point out to me in the summary of the proposed
rule where you say we are not doing anything other than that?

	MR. HALPRIN:  I didn't bring the press release, but I am sure we can
get a copy, and I will be happy to submit --

	MS. SHORTALL:  No, I am talking about the summary, the legal document
that we are required to publish a notice of comment.

	MR. HALPRIN:  Are you suggesting that the Secretary can put whatever
she wants in a press release, and not be bound by it?

	MS. SHORTALL:  Is a press release a legal document?

	MR. HALPRIN:  Yes.

	MS. SHORTALL:  I see.  Okay.  I guess we will have to agree to disagree
on that.

	I would also really appreciate any suggestions you might have on trying
to develop outreach materials that OSHA might do that would help make a
rule, a final rule, as understandable and as reachable as possible for
any employer who might be confused by the proposed rule.

	You know, sometimes regulation is an art, as well as a legal
proceeding, and you think everyone agrees on the same word meaning the
same thing, and it doesn't always quite, and we always could use some
specific suggestions on how we could do the best outreach possible, so
that diverse groups of people with diverse understandings of what a term
mean might best understand what would be required under any OSHA
standard.

	I really appreciate your coming here today, Larry, and look forward to
see your full comments in the proposed -- I mean in the record by the
30th of March, and, likewise, I mean we have people who aren't here
today, who you might be in contact with, and we welcome having their
comments come in, too.

	MR. HALPRIN:  Thank you.

	MR. MADDUX:  Thanks, Larry.

	That is the last of our schedules speakers.  We do have a little bit of
time left.  I think we have stayed ahead of schedule.

	Are there any persons here who would like to sort of just make an
informal statement, who did not -- please come up.  If you would state
your name and your affiliation, so that we can be clear in the record,
that would be helpful.

	MS. SHORTALL:  Please sit down.

	MS. DENMAN:  Thank you very much for the opportunity to speak.  I am
previously known as the woman from the audience, but my name is Sheila
Denman.

	MS. SHORTALL:  Would you mind spelling your last name for the record,
please?  Thank you.

	MS. DENMAN:  Sure.  It's D-E-N-M-A-N.  I am the Chief Operating Officer
for an organization based out of Indianapolis, that works on injury
prevention programs for employers of all sizes.

	I came here today on behalf of our employers that I am working with
just to listen firsthand to what would happen today, but I felt
compelled to come forward and speak, having heard some of the
discussion.

	As training, my background is a physical therapist, and while I
clinically have been trained in the treatment of injuries, I have spent
the last 20 years in working with employers on injury intervention and
prevention.

	The reason I would like to talk with you is to encourage you to relook
at eliminating the language as just referred to as allowing an employer
to apply restrictions or limitations to a worker's activities to
eliminate or to lessen the degree or aggravation of discomfort.

	As a practitioner, I can tell you there is a significant difference
between minor discomfort and pain, and there are algorithms that can be
developed, and there are methods for establishing a difference between
discomfort and pain.

	As our work force continues to age, I can also tell you that we are
more and more going to be dealing with people with minor discomfort.

	In the cases with the employers that I work with, what we have designed
is a program that really revolves around four principles.

	That is, number one, encouraging early reporting of minor discomfort.
I want every individual out in a work force that has any level of
discomfort to come forward and report that.

	I want to hear about it, I want to know about it, and then I want to
examine their workplace, because there is probably something that they
are doing in their workplace that is causing or potentially could cause
aggravation of the injury or the discomfort.

	If they do not come forward and bring that information to me, and I
don't have in my tool bags the ability to alter their job for that day
or for that week, then, we are going to be facing aggravation of those
injuries, and they will become significant musculoskeletal injuries that
will result in the log.

	So, really, my request to you is to reconsider taking that language out
and to allow employers to realize there is a difference between minor
discomfort and pain, there is a significant difference.

	I would suggest that some 70 percent of the people here today have some
level of minor discomfort, that if they were not just sitting in a chair
today, and they were doing manual labor, there would be a high risk of
aggravation of that discomfort.

	I think we can creatively work with our employers to find ways to work
around that discomfort to avoid injuries.  If we take that away from
them, they will only be looking at the opportunity of applying
restrictions as an indicator for an OSHA recordable.

	So, if they change the job requirements of that individual, it will
qualify as a restriction, thereby, will qualify as a recordable.

	I would also, while this has not been a scope of discussion today,
would like you to reconsider the definition of exercise.  It has been
taken out of a qualifier for First Aid because exercise was defined as
amounting to self-administration of physical therapy.

	Exercise is something employers are doing across the board,
preventative exercises to allow employees to prepare for work.  Those
may be stretches, those may be other exercises for work hardening to
prevent injuries from occurring.

	Today, the way First Aid is written in the OSHA standards, we are not
allowed to issue exercises to employees to lessen the discomfort and the
injury.  So, I would encourage, and I understand that is not the scope
of today's talk, but would encourage you to re-examine that definition
of exercise.

	MR. MADDUX:  Is that all?

	MS. DENMAN:  Yes, thank you.

	MR. MADDUX:  Are you planning on submitting written comments to this
rulemaking?

	MS. DENMAN:  I will, yes.

	MR. MADDUX:  I think that in particular, if we can get some idea of how
you go through this determination of determining this difference between
minor discomfort and pain, that would probably be very, very helpful.

	MS. DENMAN:  Absolutely.

	MR. MADDUX:  The second thing I would like to ask, on this exercise
definition, I am not sure, I would have to go back and refresh my memory
on this, but are you saying that you are changing your course of medical
treatment because it would result in a recordable injury?

	MS. DENMAN:  With the handling of minor discomfort under the definition
of First Aid, we are not issuing exercises because that would be outside
the scope of First Aid.  I believe there is room under First Aid
treatment for exercises to be administered and to alleviate minor
discomfort.

	MR. MADDUX:  Thank you.

	MS. SHORTALL:  I have a couple questions.  I think it is very
intriguing what you were talking about, with the algorithms and that.

	I was wondering if you could tell me either in your algorithms or
through your general practice with working with lots of patients over a
number of years, where does, or can you give anything, where does minor
discomfort start and end, and discomfort start and end, and pain start
and end?

	Do your algorithms answer that question?

	MS. DENMAN:  We try to give practical examples to the employers, and
again we are dealing with employers of 5,000 employees all the way down
to 50.  What we tell the workers is any level of discomfort that you
have, anything that feels unusual, we want you to report it.

	We are going to take a look at how you do your job and how maybe we
might eliminate or how the job may be influencing that level of
discomfort.

	Now, once that level of discomfort reaches a point where they have to
change the way they perform their job substantially, either in frequency
or duration, then, we are looking at a more critical situation here that
may result in treatment beyond First Aid.

	But really the key question for us goes back to how can the report of
discomfort be treated.  If it can be treated under First Aid, which we
are going to do no more than two weeks, because that is a reasonable
time to see the resolution of minor discomfort, if it is going to take
longer than that, or if it requires treatment beyond First Aid, then, we
are going to be reporting to an upper level of health care professional,
a physician referral, and probably will become a recordable at that
point.

	MS. SHORTALL:  Even in your discussion here, you have been sometimes
saying discomfort and sometimes saying minor discomfort, does it all get
sort of smooshed together in practice, because, you know, I am wondering
if there really is -- I really think there may be a difference between
what is minor discomfort and discomfort.

	The current compliance instruction only deals with the issue of minor
discomfort.

	MS. DENMAN:  You know, I can appreciate that and I think different
people will use different words.  I think it goes to asking more
questions and saying tell me about what you are feeling, tell me how it
influences the way you move and the way you perform activities.

	Tell me what influence it has on your activities of daily living.  If
it is a significant impact and that they have to change those activities
of daily living, then, I think it is beyond minor discomfort.

	The whole goal of at least in my belief what is reality for employers
today, is that if we don't change the way employers are dealing with
injuries, and that is going to traditional occupational medicine model,
businesses will go out of business, and so what we have to do is we have
to find a way to encourage employees to report minor discomfort.

	I am talking about the twinge in your back, the tingling or the
numbness.  Absolutely, I want to hear that because some of that is only
related to positions and postures, and can be alleviated with simple
instructions.

	MS. SHORTALL:  Are you finding that through your practice that
employers have been successful in identifying MSD, reports of MSDs in
the workplace, whether they are work related or not?

	MS. DENMAN:  I think they have, particularly the forward thinking
employers, because they are indications that there are potential
problems in the workplace.

	MS. SHORTALL:  Okay.  Is asking them to figure out whether they are
work related, is that outside their level of competence?

	MS. DENMAN:  The employers that we represent asked us to be here today,
not because creating that column in log is an issue, their concern
solely was in taking that definition out of the language.  So, do I
think it is beyond their scope?  Absolutely not.

	MS. SHORTALL:  Okay.  Are the employers you deal with pretty actively
using OSHA 300 logs to track and analyze their problems in the
workplace?

	MS. DENMAN:  They are, and I think that that is a good indication of
where there may be significant concerns within the workplace.

	MS. SHORTALL:  Do they also use the summary data on the OSHA 300 Log
for anything?

	MS. DENMAN:  Not that I am aware of, yes nor no.

	MS. SHORTALL:  The fact that a number of injuries and illnesses that
are reported, as well as MSDs, may be evidenced simply by subjective
symptoms.

	Are employers still able to figure out which ones are illnesses and
injuries and which ones are work related?

	MS. DENMAN:  I think that saying yes or no would be a general statement
obviously, and way too broad.  I think employers that have some level of
medical background or someone on their team that has some medical
knowledge, absolutely yes.  I think others struggle with it, but I think
there are other answers, such as providing some in-house help, some
assistance in defining those.

	MS. SHORTALL:  And the employers that you work with, have they moved to
electronic recordkeeping?

	MS. DENMAN:  I don't know.

	MS. SHORTALL:  If you could find that out, that would be really great
to hear.

	I guess just finally, I am hoping you had a chance to read the whole