Additionally, there is the OSHA career staff, much of which was involved in designing the prior regulatory scheme, he added.

In the view of Bruce C. Wood, assistant general counsel for Washington-based American Insurance Association, there will be “a continual churning” of the ergonomics issue “for the discernible future.” As evidence of this, he pointed to the three public hearings held by OSHA around the country in July.

Ms. Chao convened the hearings to delve into what is an ergonomic injury, how to determine when an ergonomic injury is caused by work-related activities, and how government should address workplace ergonomic injuries.

The Bush Administration says it will have a proposal ready in September based upon information derived from the hearings, Mr. Lessner said.

Nancy Schroeder, assistant vice president for workers' compensation at the Des Plaines, Ill.-based National Association of Independent Insurers, indicated that several of the lawmakers–including Republicans–who voted to repeal the Clinton-era OSHA rule on ergonomics are expecting a replacement regulation.

But the Congressional Review Act, the basis for the repeal, forbids the promulgation of a new rule that is substantially similar to the one repealed unless the agency acts pursuant to a new statute.

To Ms. Schroeder, the questions posed by OSHA in its hearings indicate that alternatives to regulation are being considered, “which we think is good.” She said that in NAII's view, the most cost-effective and efficient way to deal with the ergonomics issue “is to move off this broad-bush standard and to start looking at what's really proven and what's not.”

Ms. Schroeder was referring to the crux of the ergonomics issue for employers and workers' comp insurers: whether there is a clear causal connection between repetitive-motion injuries and the workplace. “What is happening in the body and how the workplace might interact with someone's particular arm or back isn't well-known,” according to Ms. Schroeder.

Arlene Ryndak, loss control manager for NAII, explained that her group has urged OSHA to take a three-pronged approach involving:

“A very aggressive educational campaign” to inform employers and workers about the problems they may face in the workplace.

Technical assistance through means such as OSHA's Web site, “which includes good training and information.”

More partnerships between OSHA and insurers, such as the ones that already have resulted in jointly conducted small-business safety workshops.

Mr. Lessner agreed that the problem with “a federal regulatory approach” is that it fails to take into account “the differing circumstances” existing “in the real world.”

He said the Alliance would like OSHA to implement a policy that provides “an array of tools” to encourage employers to implement voluntary ergonomics programs. This would include looking into obstacles to employer investment in voluntary programs, Mr. Lessner stated.

As Mr. Wood observed, to an employer it makes sense to adopt certain ergonomic practices voluntarily when its insurance carrier has pointed out that the practices are “a function of loss control” and that there will be savings on workers' comp costs.

The problem with a formal regulation is its “inherent enforcement nature,” he said. For the employer, this creates the specter of compliance officers coming to the workplace, conducting inspections and issuing citations for “doing things a little bit outside of the standard,” Mr. Wood explained.

But even voluntary programs might be too controversial for some.

According to Mr. Lessner, the Bush Administration equates voluntary programs with guidelines. “Many [in] the business community are very fearful of guidelines because they would lead to potential enforcement activity” by OSHA through a statutory provision known as the general duty clause, another option open to the agency, he said.

He explained that even in the absence of a regulation, OSHA for “many years” has issued citations and imposed heavy fines for “violations of the general duty to provide a safe place of employment.”

AIA's Mr. Wood said his group is not philosophically opposed to an ergonomics regulation. But like other insurance groups, AIA strongly opposes any new “work restriction protection” provisions. The repealed OSHA rules included WRPs mandating payment for medical treatment and lost wages for qualifying musculoskeletal disorders.

Opponents, including insurance groups, argued that WRPs would have created a “most favored injury” category while preempting state workers' comp schemes.

Finally, Mr. Lessner noted that there are some who think the business community should participate in the development of mandatory rules. He said that one reason for this view is the belief that the Bush Administration will be one-term, to be followed by a Democratic Administration which business owners would find “more difficult to live with.”

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, August 27, 2001. Copyright 2001 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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