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Copyright 2000 The Houston Chronicle Publishing Company  
The Houston Chronicle

August 27, 2000, Sunday 2 STAR EDITION

SECTION: BUSINESS; Pg. 1

LENGTH: 1912 words

HEADLINE: Fight still rages over ergonomics;
Government seeks repetitive-stress regulation by year-end as business tries to derail it

SOURCE: Staff

BYLINE: L.M. SIXEL

BODY:
In 1990, then-Secretary of Labor Elizabeth Dole declared that musculo-skeletal injuries such as carpal tunnel syndrome were a critical workplace problem that caused 48 percent of on-the-job injuries.

The Occupational Safety and Health Administration, then under the administration of President Bush, vowed to put a regulation in place to end the damage that repetitive stress can do to the hands and backs of workers.

Ten years later, there is still no ergonomics standard - and if small businesses, trade associations and congressional Republicans have their way, there won't ever be any.

After issuing a preliminary standard last year, OSHA is rushing to get a final regulation out by the end of the year. It would require employers in many industries to re-engineer jobs when one employee complains of a musculo-skeletal disorder.

Both the House and Senate, however, recently passed amendments to their labor appropriation bills that would prevent OSHA from implementing or enforcing an ergonomics regulation next year.

The bills, now in conference committee, are expected to sail though both chambers. President Clinton has threatened to veto spending bills that prohibit OSHA from enforcing an ergonomic standard, however.

Small businesses in particular are upset at provisions in the proposed regulation. They're worried they'll end up financially responsible for injuries suffered while an employee is off golfing or water-skiing.

Another worry is that ergonomic problems affect soft tissues such as back muscles that X-rays or other tests are unable to verify. It's not like lead exposure, which can be measured by a blood test.

"It's like the difference between a speed limit of 25 miles per hour vs. 'don't go too fast,' " said a congressional staff member opposed to the regulation. "My vision of fast is different than yours."

Small businesses have been successful at getting the issue in front of Congress.

"We've done a good job over the last couple of months of stalling these ergonomic rules," boasted Robert Howden, executive director of the National Federation of Independent Business in Texas. "We don't want to be told by the federal government what to do."

But to safety and health advocates, the ergonomics rule is long overdue.

"If OSHA does its job as the regulator of safety and health in the workplace, this is the big one," said Peg Seminario, director of safety and health for the AFL-CIO in Washington, D.C.

Today, musculo-skeletal disorders represent a third of all lost-time workplace injuries. To put it in perspective, 6,000 people get killed each year on the job; 600,000 people miss work because of musculo-skeletal injuries.

The new ergonomics rule can't come soon enough for workers who spend their days cutting up chickens, said Emilio "Red" Gomez, president of the United Food and Commercial Workers Local 408 in Houston.

Employees are supposed to be rotated from job to job to prevent repetitive-stress problems, but when a supervisor finds an employee who is really good at, say, boning chicken breasts, he doesn't want to transfer him to another job, Gomez said.

Gomez, who represents poultry workers at several plants in East Texas, said he fights a continual battle with employers over ergonomics. Some employees are in such pain from spending their days pulling out livers and gizzards that they can't sleep at night, but Gomez said it's hard to get supervisors to take the problem seriously.

When an employee injures, say, his right hand, instead of giving him time off to recover, the company puts him on a production line that requires the use of his left hand, Gomez said.

"All they're worried about is their quotas and not their people," asserted Gomez, who said the proposed ergonomic standard is the best thing that could happen to workers.

Candy Williams knows what ergonomic-related pain is like. The 44-year-old has spent eight years at the Tyson Foods plant in Center keeping conveyor belts clear, moving trays of chicken and sweeping up.

She has had trouble with hand pain since 1995. She started having shoulder troubles after trays fell on her in 1997. Since then, rotating her arms has aggravated her shoulders.

She had surgery on her left shoulder recently to relieve the pain and just obtained approval for arthroscopic surgery on her right shoulder.

Williams, who has been on the plant's safety committee for four years, is glad Tyson has a mandatory production-line rotation policy.

"It made a positive effect," she said, referring to the two-hour job limit rule. "It's a lot easier if you're not doing the same thing every day all day."

Tyson also is redesigning work stations to make the work easier and is rotating people from standing jobs to sitting jobs. And it has tried different kinds of knives and saws, said Williams, who lives in Mansfield, La.

Tyson spokesman Ed Nicholson said the Springdale, Ark.-based firm has an aggressive early-intervention program that began in 1987. If problems are dealt with early, they tend not to become severe, he said.

That policy appears to make injury rates higher than they actually are, Nicholson said.

If an employee complains about a sore hand, for example, the company will switch him to another job to give the hand a rest. While the injury must be reported to OSHA, in the long run it has reduced the number of severe injuries and workers compensation claims.

Until now, OSHA has used the "general duty" clause - a catchall regulation that requires employers to maintain a safe work environment for its employees - to fine employers who don't pay enough attention to repetitive-stress injuries.

But employers have been able to get around that regulation pretty easily, said Tom Wilson, an employment lawyer with Vinson & Elkins in Houston.

Battle goes back years

This is not the first time Congress has tried to stop an ergonomic regulation, said Seminario, the AFL-CIO director of safety and health. It succeeded in preventing OSHA from issuing one in both the 1996 and 1998 budget years.

To try to derail the regulation this time, several committees in Congress are investigating OSHA's hiring of experts to testify on behalf of the regulation, Seminario said.

According to the agency's critics, OSHA paid the witnesses to prepare testimony in support of an ergonomics regulation. The congressional committees are asking OSHA for a copy of every contract it has signed relating to the ergonomics issue. The goal is to delay OSHA so it can't get the regulation out by the end of the year, Seminario said.

"OSHA isn't neutral," said Charles Jeffress, assistant secretary of labor over OSHA, clearly frustrated about the debate over the experts he hired. This is not a time when you're seeking objectivity, he said. "It's the agency saying: 'This is a problem, and this solution makes sense.' "

Jeffress, who wants to leave ergonomics as his legacy, added: "How can we propose a rule if we don't have a point of view?"

Jeffress speculated that employers are more fearful of uncertainty than anything else when it comes to the ergonomics issue.

"We've been living with strains and sprains, and our bodies are wearing out," he said. "It's been accepted so long that it's the natural course of things."

Despite the debate, he said, many companies spend a lot of money on ergonomics each year because it reduces workers compensation claims and lost work days and boosts productivity. Xerox, for example, spends $ 3 million, he said.

What rankles Seminario about the opposition to the ergonomics regulation is that employers don't have to make any workplace changes until an employee is injured.

The rule really ought to be preventive, she said. Why should someone have to get hurt before employers ensure that others don't fall victim to the same injury?

Seminario also would like to see the proposed regulation focus more on exposure to injury rather than the injuries themselves. OSHA's draft proposal in 1995 focused on exposure - such as the number of times per month and the length of time per day someone did a repetitive task.

Industry didn't like that proposal, she said, insisting that coverage be triggered by injuries. So this time around, OSHA combined the two ideas by triggering coverage with an injury but then requiring an employer to examine exposure to all employees.

That's doesn't sit well with the Baylor College of Medicine in Houston. It is concerned that a single employee could force the hospital to re-engineer an entire job classification, according to comments it submitted to OSHA.

Baylor urged OSHA to require intervention if two employees or 10 percent of workers - whichever was greater - in the same job category complained of ergonomics-related injuries.

In the proposed regulation, one of the toughest provisions for small businesses to swallow deals with paid worker time off for injuries. It says employees with an ergonomics-related injury can get up to six months of leave - and be paid 90 percent of their after-tax earnings while they're recuperating.

Joe Ols, president of Ols Maintenance Supply in Houston, said that the proposal would put companies like his out of business. It would be impossible to pay someone for six months without getting any production out of him, said Ols, who has 15 employees.

Baylor also is concerned about the six-month provision. Either drop it, Baylor asked OSHA, or at least reduce it to six weeks. In making its argument, Baylor cited studies showing that workers who receive most of their pre-injury salary tend to take longer to recover.

Not true, said Seminario. OSHA has been mandating since 1978 that employees exposed to lead get time off. The time-off provision has been extended to other work-related injuries and illnesses, and the pay provision hasn't caused workers to draw out their recuperation time, Seminario said.

Besides, she said, it's not the employee who decides to stay home. The health-care provider that the employer has chosen is the one who makes the decision.

The reason it's important that an employee be paid about the same when recuperating as on the job, she said, is that employees shouldn't be penalized for coming forward to report an injury.

The provision also is in an employer's interest, she said. Treatment of severe ergonomics-related injuries tend to be expensive, she said, so it's best for an employer to catch them early.

But Tom Anderson, director of human resources for Fort Bend County and chairman of the Workplace, Health and Safety Committee for the Society for Human Resource Management, worries that the OSHA proposal will nationalize workplace injury decisions that the states have traditionally had the power to decide.

Traditionally, it has been up to the states to decide the level of income compensation and the length of time an employee should get off to recuperate from an injury.

States want to control those costs to keep workers' compensation rates low, he said. Workers' comp is an important factor when companies are thinking of doing business in a state.

Baylor also asked OSHA to remove lower back pain from the proposed rule.

A lot of time, medical diagnoses are a description of a person's complaint, said Jim Kelaher, director of occupational health at Baylor. If a person says, "My back hurts," the diagnosis is lower back pain.

"You can't do an X-ray to find pain or take a blood test to tell if a muscle hurts," Kelaher said.

GRAPHIC: Photos: 1. Candy Williams wears braces on both hands to elieve the pain of carpal tunnel syndrome. Williams, who worked at Tyson Foods in Center for eight years, developed shoulder troubles in 1997 and is awaiting her second shoulder surgery (color); 2. Warehouse workers Juan Zamudio, left, and Mario Garcia load a truck with an outgoing order at the Ols Maintenance Supply Co. (color); 3. Joe Ols of Ols Maintenance Supply checks out an order in the warehouse. Ols, who has 15 employees, says proposed ergonomics regulations could put a small company such as his out of business (b/w, p. 4); 1. Charlie Gesell / Special to the Chronicle, 2-3. E. Joseph Deering / Chronicle

LOAD-DATE: November 21, 2000




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