February 25, 2011
Mr. William K. Principe
Constangy Brooks & Smith, LLP
230 Peachtree Street, NW
Atlanta, GA 30303
Dear Mr. Principe:
Thank you for your recent letter to the Occupational Safety and Health Administration (OSHA) regarding the recordkeeping regulation contained in 29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses. In an effort to provide the public with prompt and accurate responses, we developed and continue to refine a set of Frequently Asked Questions (FAQ), in addition to maintaining a log of Letters of Interpretation (LOI) on the OSHA Recordkeeping website.
Scenario 1: An employee reports subjective, work-related aches and pains to the company doctor, who treats the employee with 400 mg of ibuprofen and returns the employee to full duty. The employee then goes to a doctor who writes a prescription for pain relief and puts the employee out of work for a few days.
Question: Can the employer rely on the first provider's opinion above, assuming that the first provider's opinion is more authoritative, about the need for both "medical treatment" and "days away from work," and not record the case?
Response: The concept of "most authoritative" conflicting medical opinion is intended to ensure that the severity of an occupational injury or illness is accurately recorded. OSHA's Frequently Asked Question (FAQ) 7-10a, which states:
If a physician or other licensed health care professional recommends medical treatment, days away from work or restricted work activity as a result of a work-related injury or illness can the employer decline to record the case based on a contemporaneous second provider's opinion that the recommended medical treatment, days away from work or work restriction are unnecessary, if the employer believes the second opinion is more authoritative?
Yes. However, once medical treatment is provided for a work-related injury or illness, or days away from work or work restriction have occurred, the case is recordable. If there are conflicting contemporaneous recommendations regarding medical treatment, or the need for days away from work or restricted work activity, but the medical treatment is not actually provided and no days away from work or days of work restriction have occurred, the employer may determine which recommendation is the most authoritative and record on that basis. In the case of prescription medications, OSHA considers that medical treatment is provided once a prescription is issued.
OSHA considers evaluations to be contemporaneous if they are conducted within a time frame so that the underlying condition does not change. In other words, it is important for the physicians or licensed health care professionals involved in the examination of the injured or ill employee to evaluate the same condition. If the employee's condition either improves or worsens between the examinations, they would not be evaluating the same condition. In most cases, medical recommendations provided on the day of the injury or illness would be "contemporaneous." See, OSHA's May 15, 2007, Letter of Interpretation addressing "Clarification of the term 'contemporaneous' as used in recordkeeping FAQ 7-10a."
Some factors an employer might consider when determining whether physicians or licensed health care professionals are examining the same condition might include, for example: whether the examination of the injured or ill employee is in person (i.e., review of documents only is generally not a substitute for a physical examination); whether the examinations were conducted on the same day; whether the employee was subjected to additional events or exposures between the examinations; and, whether medical treatment, restricted work activity, or days away from work occurred between the examinations.
Based on the information described in your letter, the two physical examinations were conducted in person; it appears that the physicians evaluated the injury on the same day (day of injury) and in the same condition; and, the employee was not subjected to additional events or exposures between the examinations. Also, no medical treatment was provided or days away from work or work restriction occurred between the two examinations. Accordingly, the employer in your scenario may rely on the first medical opinion if they determine the opinion is the most authoritative. OSHA considers a contemporaneous medical opinion that is best documented, best reasoned and most persuasive as the most authoritative. See, Section 1904.6(b)(3), and OSHA's May 15, 2007, letter of interpretation noted above. Finally, please be aware that OSHA would consider the medical treatment and days away from work directed by the second physician as necessary unless the employer can document that the first opinion is most authoritative.
Scenario 2: An employee who is 5'7" and weighs 385 pounds is walking to the lunch room during a work day when his left knee buckles and he falls down, resulting in "medical treatment" and days away from work. Assume the MRI results show significant, pre-existing degenerative conditions in the employee's left knee.
Question: Do these facts fit within Exception 2 of Section 1904.5(b)(2)(ii) for an injury that involves "signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment?"
Response: See OSHA's Letter of Interpretation dated January 13, 2004, Determining work-relatedness when the work event or exposure is only one of the discernable causes; not the sole or predominant cause.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
Keith Goddard, Director
Directorate of Evaluation and Analysis