What A Long, Strange Trip It’s Been (OSHA’s new rules and the strange ways they work)

OSHA's reporting rules changed to require reporting when one – as opposed to three – employees were hospitalized for more than observation and to require reporting where there was an amputation or eye loss.

As most in the safety profession know, OSHA changed the rules related to recordkeeping and reporting effective Jan. 1, 2015. The changes to the recordkeeping rules essentially did two things: changed who had to engage in recordkeeping and required the submission of records electronically to OSHA. (The summary of those records still must be posted from Feb. 1 through April 30 of each year.)

The reporting rules changed to require reporting when one – as opposed to three – employees were hospitalized for more than observation and to require reporting where there was an amputation or eye loss. (OSHA’s rules relative to reporting work-related deaths still require that deaths be reported within 8 hours, but the reporting can now be done via OSHA’s web portal.) Given the clear language of the rule change, one would expect that there would be no questions about what sort of injuries need to be reported, but as usual, that is not the case.

Traditionally, OSHA has defined an amputation as a loss of an appendage that involved bone loss. In fact, prior to the rule change, OSHA specifically defined amputations in a manner that required there be bone loss. Thus, for example, slicing the fingertip skin off would not be considered an amputation, but slicing the fingertip and a little bit of bone would be defined as an amputation.  The new rule defines amputation as follows:

An amputation is the traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears or broken or chipped teeth. (See, 29 CFR 1904.39(b)(11).)

Thus, slicing the fingertip off, without involving the bone, is now an amputation; however, doing the same thing to a toe is not).

Though the result of the injury may be identical (i.e., the complete loss of an arm), OSHA again has changed course and now distinguishes between amputations and avulsions. An avulsion is an injury in which a body structure is forcibly detached from its normal point of insertion by either trauma or surgery. An example of an avulsion would be the sort of injury that might result if an employee’s arm was caught in a rotating piece of equipment and torn off. If the result of an avulsion, the loss of the arm is not reportable, but if sheared off in a press, the arm loss would be reportable.

Various area OSHA offices are offering guidance relative to amputations and making statements like: “If it won’t grow back, it is an amputation and reportable.” Unfortunately, that guidance contradicts the new definition of an amputation which specifically excludes “severed ears.” Further, it creates some confusion as a reattached arm ostensibly “grows back,” though the definition clearly instructs that the original injury is reportable.

Eye loss and whether the loss of an eye is reportable similarly is more complex than it might appear at first blush. Mere loss of sight does not constitute the loss of an eye. The eye must be eviscerated or enucleated to count as an eye loss. However, if the eye loss (or medical amputation of an appendage) occurs more than 24 hours after the incident, the eye loss (or medical amputation of an appendage) is not considered reportable. Thus, though the eye may be completely and irreparably non-functional, so long as it remains a part of the employee’s body for 24 hours, it is not a reportable eye loss.

OSHA currently is encouraging employers to rely upon the medical professional’s diagnosis to determine whether an injury is an amputation or eye loss that must be reported to OSHA. This could lead to unscrupulous employers working with doctors to delay procedures that are medically necessary in order to avoid a reportable incident. However, given the very odd and sometime convoluted way OSHA has defined these terms and what triggers a reportable event, that result was foreseeable and inevitable.

(Mr. Surma’s postings on EHSToday.com do not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. Adams and Reese LLP is a multidisciplinary law firm with over 340 lawyers and advisors in 16 offices.)