Kevin Koplin, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
Brent Clark, Esq., Elizabeth Ash, Esq., Seyfarth Shaw LLP., Chicago, Illinois
Stephen Yokich, Esq., Cornfield and Feldman, Chicago, Illinois
For Authorized Employee Representative
DECISION AND ORDER
On May 24, 2011, this Court issued a Decision and Order (“Decision”) in the above-captioned matter, which affirmed an alleged violation of 29 C.F.R. § 1904.4(a), which
requires employers to maintain a log of work-related deaths, injuries, and illnesses. See
Caterpillar Logistics Servs., Inc., 23 BNA OSHC 1806 (No. 09-0901, May 24, 2011). The
citation was issued by Complainant pursuant to the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Review
Commission (“Review Commission”) declined to review the Decision, which became a final
order on June 30, 2011. Subsequent to the Review Commission’s action, Respondent
appealed to the United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”).
On March 20, 2012, the Seventh Circuit reversed this Decision and remanded the case for
“proceedings consistent with this opinion.” Caterpillar Logistics Servs., Inc. v. Solis, 674
F.3d 705, 710 (7th Cir. 2012).
Although the Seventh Circuit found that this Court’s Decision was consistent with
Review Commission precedent set forth in Home Depot #6512, 22 BNA OSHC 1863 (No.
07-0359, 2009), and was supported by substantial evidence, it noted that “[s]ubstantial
evidence is not enough to sustain an administrative decision, however.” Id. at 709. The
Seventh Circuit identified this Court’s purported failure to provide an “account of competing
evidence and inferences” showing why it “credited one witness rather than another” with
respect to the issue of whether the working conditions in the packing department “contributed
to” MK’s epicondylitis as the basis for its remand. Id. In particular, the Seventh Circuit
found that the “big consideration missing from the ALJ’s analysis is Caterpillar Logistics’
300-person-years of experience with its packing department,” which showed an incidence
rate of epicondylitis much lower than that of the general population.
Id. The Seventh
Circuit placed particular emphasis on this consideration because it found ambiguity in the
term “contributed to” in the definition of 29 C.F.R. § 1904.5(a) and noted that this Court “did
not choose” between possible interpretations that would have an impact on whether
Caterpillar’s experience had any salience. Id. at 709–10.
In addition, after this Court issued its Decision and after the Seventh Circuit’s remand
of this Court’s Decision, the D.C. Circuit Court of Appeals (“D.C. Circuit”) issued its
decision in AKM LLC d/b/a Volks Constructors, 675 F.3d 752 (D.C. Cir. 2012). The D.C.
Circuit reversed the Review Commission and held that the six month statute of limitations
found at 29 U.S.C. § 658(c) applies to an employer’s obligation to record work-related
injuries and illnesses pursuant to 29 C.F.R. § 1904.29(b)(3). Volks, 675 F.3d at 753. The
D.C. Circuit in the Volks case rejected the interpretation proffered by the Secretary, and
accepted by the Review Commission, that the failure to record is a continuing violation that
prevents the running of the statute of limitations until the expiration of the five-year
document retention period found at 29 C.F.R. § 1904.33(a). Instead, the D.C. Circuit held
“that the statutory language in Section 657(c) which deals with record-keeping is not
authorization for OSHA to cite the employer for a record-making violation more than six
months after the recording failure.” Id.at 758 (citations omitted).
With the foregoing in mind, this Court certified the following questions on remand:
Certified Question 1: (a) Whether the Citation in this case is barred by the six-month statute of limitations (29 U.S.C. § 658(c)) as raised in Respondent’s
Affirmative Defenses; and (b) whether Respondent is entitled to relief under Fed.
R. Civ. P. 60(b) to argue its Affirmative Defense due to a change in law pending a
Final Decision in this case?
Certified Question 2: Parties are to address: (1) Caterpillar Logistics’ 300-person-years of experience and the role it plays in the Respondent’s obligation to record a
work-related illness; (b) legal arguments on what the term “contributed to” the
injury means in relation to § 1904.5(a); and (c) whether Caterpillar Logistics’
300-person-years of experience is relevant under F.R.E. 401–403 as to
Respondent’s obligation to record work-related injuries.
Certification of Questions and Briefing Order at 2. The Court shall address each of these
questions in turn. Based upon what follows, the Court finds that Respondent waived its statute
of limitations defense and reaffirms its original Decision, wherein the Court found that
Respondent violated 29 C.F.R. § 1904.4(a).
Because the Seventh Circuit limited its analysis to the discrete issue of the role that
Caterpillar Logistics’ 300-person-years of experience plays with respect to whether MK’s
epicondylitis was a recordable injury, the Court will not engage in the unnecessary exercise of
rehashing the entire record. Rather, the Court shall incorporate by reference the factual findings
from its Decision. See Caterpillar Logistics Servs., Inc., 23 BNA OSHC 1806 (No. 09-0901,
2011) (ALJ Augustine).
Statute of Limitations
On June 5, 2009, Complainant issued to Respondent a citation pursuant to 29 C.F.R. §
1904.4(a), alleging that Respondent failed to record a work-related injury (MK’s epicondylitis)
on July 23, 2008. In its Complaint, Complainant amended the Citation and Notification of
Penalty and changed the operative date to August 5, 2008. The Court accepted the Complaint
and Amended Citation at trial and held that August 5, 2008 was the controlling date.
Respondent raised the statute of limitations defense in its Answer to the Complaint. A trial was
held on September 21–23 and November 1–3, 2010.
On the second day of trial, September 22, 2010, Respondent attempted to address the
statute of limitations issue. (Tr. 380–385). At that point in the trial, the Court did not allow
testimony with respect to the statute of limitations issue because Respondent had failed to advise
the Court of its intent to proceed on that affirmative defense during the pretrial conference. (Tr.
382). At the time, the Court viewed the statute of limitations defense as jurisdictional in nature.
Nevertheless, the Court, mindful of the anticipated delay in the proceedings, invited the parties
to brief the statute of limitations issue with references to the depositions that had taken place
prior to trial. (Id.). To the extent that the issue was not discussed during the pre-trial
depositions, the Court granted the parties the authority to reconvene a “very narrow deposition”
of CSHO Karl Armstrong. (Tr. 383). On October 7, 2010, Respondent submitted a letter to the
Court indicating that it had “decided to withdraw its statute of limitations affirmative defense.”
See Brent I. Clark, Letter to the Court re: Secretary of Labor v. Caterpillar Logistics Services,
Inc., October 7, 2010. There was no further discussion of the statute of limitations: (i) during
the November 2010 portion of the trial; (ii) in the post-trial brief of the Respondent
; or (iii) on
appeal. Thus, on May 24, 2011, the Court affirmed a violation of the standard.
Prior to the beginning of this case, the respondent in the Volks case had appealed the
decision upholding its own recordkeeping violations to the Review Commission. All briefs in
the Volks case were submitted to Review Commission by February 12, 2008. On October 22,
2010, the Review Commission announced, via press release, that it would be holding oral
arguments in the Volks case on November 2, 2010.
On March 11, 2011, the Review
Commission upheld the ALJ’s determination that the failure to record an injury or illness is a
continuing violation that can be cited up to six months from the time OSHA discovers the
violation. AKM LLC (Volks), 23 BNA OSHC 1414, 1422 (No. 06-1990, 2011). As noted above,
the D.C. Circuit reversed the Commission on April 6, 2012.
Fed. R. Civ. P. 60(b) Relief
Subpart (b) of the Court’s first certified question asked whether Respondent is entitled to
relief under Fed. R. Civ. P.60 (b). The parties are in agreement that Rule 60(b) relief is not
available in this case because the Seventh Circuit reversed and remanded the Court’s decision
and, thus, there is no final decision from which relief can be granted. Accordingly, the Court
finds that Respondent is not entitled to Rule 60(b) relief to argue its statute of limitations
Fed.R.Civ.P. 54(b) Relief
That does not end the debate, however, because Respondent has also argued that,
pursuant to Fed. R. Civ. P. 54(b), it is entitled to relief from the Court’s interlocutory decision
not to allow testimony with respect to the statute of limitations issue. See Johnson-Parks v. D.C.
Chartered Health Plan, 806 F. Supp. 2d 267, 268 (D.D.C. 2011) (“[R]elief upon reconsideration
of an interlocutory decision pursuant to Rule 54(b) is available ‘as justice requires.’”) (citations
omitted). In particular, Respondent argues that application of Rule 54(b) relief is appropriate for
two reasons: “(1) the significant intervening change in law established in Volks; and (2) the
Court’s error in denying Respondent the opportunity to support its statute of limitations
Affirmative Defense and requiring Respondent to brief and file a motion to dismiss in the middle
of the hearing . . . .” Resp’t Brief in Response to the Court’s Certified Questions at 18.
With respect to Respondent’s second argument, the Court does not find that justice
requires relief from its order directing briefing of the statute of limitations issue. The Court
provided Respondent a clear opportunity to address the statute of limitations issue during the
break between trial dates by submitting a well-reasoned and researched legal brief and/or
reconvening the deposition of the CSHO to take testimony to include in its brief. Furthermore,
the Court did not preclude the possibility that Respondent could provide testimony with respect
to the statute of limitations at the November portion of the trial; rather, the Court, not having
been apprised of the issue during the pre-trial conference, stated that it would not accept
testimony with respect to the statute of limitations “at this particular point in time.”
Instead of presenting the Court with potentially persuasive arguments and taking the opportunity
to develop evidence and testimony, Respondent sent a letter to the Court indicating that it was
withdrawing its statute of limitations defense. See Clark, Letter to the Court.
For the same reasons, the Court does not find that the intervening change in law
established by Volks provides a sufficient basis for overturning its order directing briefing. The
Court’s Order, with respect to testimony on the issue of the statute of limitations, was temporal
in nature and could have been remedied by proper briefing by Respondent. Respondent did not
avail itself of this opportunity and chose to formally withdraw its defense.
Law of the Case Doctrine and the Supervening-Decision Doctrine
In addition to the foregoing, there are two doctrines that are applicable to this dispute that
require discussion; namely, the law of the case doctrine and the supervening-decision doctrine.
Complainant argues that Respondent formally waived its statute of limitations defense and,
therefore, should not be able to avail itself of the defense now that the case has been remanded.
Respondent contends that it did not waive its defense because, in light of the supervening
decision in Volks, its waiver was not an “intentional release of a known right.” United States v.
Hampton, 585 F.3d 1033, 1044 (7th Cir. 2009).
“When the [court] addresses a case on remand, the ‘law of the case’ generally requires it
to confine its discussion to the issues remanded.” United States v. Morris, 259 F.3d 894, 898
(7th Cir. 2001). This doctrine only applies to issues that have been resolved, which, in some
instances, leaves the judge free to address issues that the appellate court left undecided. Id.
(citing Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000)). This power, however, “must be
construed in harmony with our familiar exhortation that parties cannot use the accident of
remand as an opportunity to reopen waived issues.” Id. (citing United States v. Jackson, 186
F.3d 836, 838 (7th Cir. 1999)); see also United States v. Parker, 101 F.3d 527, 528 (7th Cir.
1996). “If the opinion identifies a discrete, particular error that can be corrected on remand
without the need for a redetermination of other issues, the [court] is limited to correcting that
error.” Parker, 101 F.3d at 528 (emphasis added). Thus, the Seventh Circuit has held that “on
remand, and in the absence of special circumstances, a [court] may address only (1) the issues
remanded, (2) issues arising for the first time on remand, or (3) issues that were timely raised
before the district and/or appellate courts but which remain undecided.” Morris, 259 F.3d at
The Seventh Circuit did not remand the issue of the statute of limitations because it was
never before the court in the first place. Respondent argues that because the decision was
vacated in its entirety, that it should be allowed to start anew. As noted above, however,
Respondent cannot use the “accident of remand” to address an argument that it withdrew during
the course of the trial. Further, the scope of remand was clearly limited to “proceedings
consistent with this opinion,” which only addressed the discrete issue of Caterpillar’s 300-person-years of experience. Second, the statute of limitations is not arising for the first time on
remand; it arose during the original trial and was abandoned by the Respondent. Third, although
the issue was timely raised during the course of the trial, and remained undecided, the statute of
limitations defense was formally withdrawn during the period between hearing dates. See
Morris, 259 F.3d at 899 (holding that appellant’s argument fell into third category because he
preserved the argument even though the court of appeals did not address it in the first round of
appeals). The issue remained undecided because there was no issue before the Seventh Circuit
As regards the issue of waiver, Respondent first contends that it did not, indeed could
not, waive the statute of limitations defense because Volks had not been decided and, therefore,
its right to make such a claim did not exist at the time of the purported waiver. See Hampton,
585 F.3d at 1044. This is the essence of the supervening-decision doctrine, which “reflects the
principle that it would be unfair, and even contrary to the efficient administration of justice, to
expect a defendant to object at trial where existing law appears so clear as to foreclose any
possibility of success.” United States v. Washington, 12 F.3d 1128, 1139 (D.C. Cir. 1994)
(emphasis added). This approach is followed by several of the circuit courts, including the
Seventh and D.C. Circuits. See, e.g., Holland v. Big River Minerals Corp., 181 F.3d 597 (4th
Cir. 1999); Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002); but see United States v. Ardley,
273 F.3d 991, 992 (11th Cir. 2001) (holding that the failure to raise an issue in an opening
brief—the procedural bar doctrine—is not trumped even by an intervening Supreme Court
This is not a case where Respondent failed to raise an issue because the law was so
settled as to render “futile” any argument regarding the statute of limitations. If that were the
case, Respondent would not have raised it in the first instance. Rather, Respondent, faced with
the prospect of addressing the issue via brief (for which it had ample time to prepare between
hearings), opted to withdraw its pursuit of that claim. See Ackerman v. United States, 340 U.S.
193, 198 (1950) (“There must be an end to litigation someday, and free, calculated, deliberate
choices are not to be relieved from.”). Indeed at the time of Respondent’s withdrawal, no circuit
court had addressed the statute of limitations issue with respect to the Part 1904 recordkeeping
Further, had Respondent done its research, it would have found that the Volks case was
pending before the Review Commission. See Norgaard v. DePuy Orthopaedics, Inc., 121 F.3d
1074, 1075 (7th Cir. 1997) (“Ignorance of the Supreme Court’s docket, although “neglect,” is
not “excusable”—it is nothing but negligence, which does not justify untimely action.”).
Although we are not dealing with Supreme Court precedent, it is nevertheless incumbent upon
Respondent, and its counsel, to be aware of potential developments in the law affecting their
case. The issue of the statute of limitations as applied to the Part 1904 recordkeeping
requirements was clearly up for debate, as evidenced by the Volks appeal to both the Review
Commission and to the D. C. Circuit. The information regarding the appeal to the Review
Commission was available to Respondent both prior to the commencement of this case, as well
as during the interim period between trial dates. The Court finds that the existing law on this
issue was not so clear as to foreclose the possibility of success on appeal. Accordingly, the
Court finds that Respondent waived the issue of the statute of limitations.
Respondent’s Injury History
Prior to the Seventh Circuit’s decision, the Court had found that Respondent violated 29
C.F.R. § 1904.4(a) because MK’s epicondylitis was work-related. Because the Court has already
incorporated by reference its previous findings, this section is limited to the sole question of the
role that Respondent’s 300-person-years of experience plays in making the determination that
MK’s epicondylitis was work-related.
The cited standard requires an employer to keep records of fatalities, injuries, and
illnesses that are work-related. 29 C.F.R. § 1904.4(a). An employer must consider an injury or
illness to be work-related if “an event or exposure in the work environment either caused or
contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”
29 C.F.R. § 1904.5(a) (emphasis added). The Seventh Circuit expressed concern about the
proper interpretation of the phrase “contributed to” and the role that Respondent’s injury history
plays in making that determination. With that framework in mind, the Court shall address each
of the certified sub-questions in turn.
Relevancy of Respondent’s 300-Person-Years of Experience
With respect to the issue whether Respondent’s 300-person-years of experience is
relevant, the Court agrees with Complainant that the issue is relevant according to the Federal
Rules of Evidence, because such information could potentially inform or confirm the analysis of
work-relatedness. See Fed. R. Evid. 401 (“Evidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the evidence . . . .”). In fact, both Drs.
Harrison and Covert testified as such. (Tr. 541–45, 1354–56). That being said, and as will be
shown below, the Court does not believe that Respondent’s injury history is determinative of
whether MK’s epicondylitis was work-related.
Test for Work-Relatedness
The Review Commission’s test for work-relatedness was expressed in the case of Home
Depot. The Review Commission reiterated the position of the Secretary when it promulgated the
[T]he work itself must be a tangible, discernible causal factor to render an injury
or illness work-related. . . . [P]ure speculation that some event in the workplace
may have caused or contributed to an injury or illness would not be enough to
trigger the application of the cited regulation.”
Home Depot, 22 BNA OSHC 1863. In the Home Depot case, an employee died after he was
found underneath a truck with no visible signs of trauma. Id. The Review Commission found
that although it could speculate as to the cause of the injury, the evidence was insufficient to
establish that a fall in the parking lot or any other event at the workplace caused or contributed to
the employee’s death. Id. Accordingly, the Review Commission held that the Secretary failed
to show by a preponderance of the evidence that there was an identifiable event that led to the
death of the employee in the Home Depot parking lot. Id.
The Review Commission’s decision in Home Depot clearly shows that the absence of a
non-occupational cause alone is not enough to establish work-relatedness. Accordingly,
Complainant cannot engage in speculation as to what may have caused an injury. This much is
confirmed by the preamble to Part 1904, which, in the context of musculoskeletal disorders
(MSDs), “directs the employer to evaluate the employee’s work activities to determine whether
it is likely that one or more events or exposures in the work environment caused or contributed
to the disorder.” Occupational Injury and Illness Recording and Reporting Requirements, 66
Fed. Reg. 5916, 6018 (Jan. 19, 2001). This evaluation includes consideration of “the employee
report, the ergonomic risk factors present in the employee’s job, and other available
Respondent argues that the foregoing means that, in order to prove work-relatedness in
the context of MSDs, Complainant is required to provide “concrete evidence” illustrating that
the hazards are “clearly linked” to the injury. Compl’t Brief at 30–31. The specific evidence
Respondent suggests would fit this bill is its particular injury history and data, which would fall
under the description of “other available information.” See id.
Before addressing Respondent’s injury history, however, the Court must address
Respondent’s interpretation of the phrase “contributed to.” Respondent’s interpretation is
misguided in at least two respects. First, the Secretary explicitly rejected the suggestion that
MSD cases should have separate criteria for determining whether an injury is recordable. 66
Fed. Reg. at 6018. In particular, it noted that “[e]mploying consistent recording criteria thus
helps to achieve one of OSHA’s major goals in this rulemaking, simplification.” Id. Second,
Respondent’s formulation is a close approximation of a test that was explicitly rejected by the
Secretary in the preamble; namely, the “predominant” or “significant” cause test. Id. at 5929.
The preamble states that the language of the statute (29 U.S.C. § 657) indicates that “Congress
did not intend to give ‘work-related’ a narrow or technical meaning, but rather sought to cover a
variety of causal relationships that might exist in workplaces.” Id. (emphasis added). The test
formulated by Respondent overstates the requirement of causation and almost completely
disregards the concept of contribution, which implies that, although a work activity may not be
the direct cause of an injury, it is a factor among the “variety of causal relationships” that was
more likely than not to cause the injury.
Respondent’s interpretation is at odds with the
statutory and regulatory scheme, which seeks to simplify the recordkeeping requirements and
ensure that “the records must reflect not only those injuries and illnesses for which the precise
causal mechanism is apparent at the time of recordation, but also those for which the mechanism
is imperfectly understood.” Id. at 5930.
The preamble explains this understanding of work-relatedness by way of a question-and-answer example from the BLS Guidelines. In response to a hypothetical about whether there
must be an identifiable event or exposure in the workplace to render a case recordable, the
Usually, there will be an identifiable event or exposure to which the employer or
employee can attribute the injury or illness. However, this is not necessary for
recordkeeping purposes. If it seems likely that an event or exposure in the work
environment either caused or contributed to the case, the case is recordable, even
though the exact time or location of the particular event or exposure cannot be
Id. 6018. Only if a particular injury is known to result from some nonwork-related activity
outside the work environment that merely surfaces at work is the case nonrecordable. Id. In
other words, the preamble to the standard anticipates that, with respect to MSDs, employers will
be operating from a position of imperfect knowledge regarding the potential causes of the MSD.
To the extent that there are no discernible, nonwork explanations for an injury, and there are
identifiable work-related risk factors that are associated with the onset of such an injury, then the
foregoing analysis leads to the conclusion than such an injury should be recordable. Identifying
risk factors goes beyond mere speculation about possible causes, because, as the term implies,
risk factors have an identifiable and discernible connection to the injury suffered.
This is not a case where Complainant is merely saying that because there was an injury
that manifested itself at work, then work is ipso facto the cause of the injury. Contrary to Home
Depot, Complainant identified very specific and medically accepted risk factors that potentially
contributed to MK’s epicondylitis. While the Court is cognizant of the fact that merely showing
there was no plausible non-work explanation for the injuries is not sufficient to establish that the
injury is work-related, the lack of any concrete non-work explanation, coupled with specific,
identifiable work-related risk factors is a strong indication of work-relatedness. Even if the
correlation between the risk factors present at Consol Pak and MK’s subsequent epicondylitis is
“imperfectly understood” or unquantifiable, it cannot be said that Complainant is merely
clutching at straws to show that MK’s work activities had “any possibility of playing a causal
role.” See Id. at 5929; see also Home Depot, 22 BNA OSHC 1863. Therefore, the Court rejects
Respondent’s arguments that in order to prove work-relatedness in the context of MSDs,
Complainant is required to provide “concrete evidence” illustrating that the hazards are “clearly
linked” to the injury. Compl’t Brief at 30–31. Such an interpretation is contrary to the intent
and purpose of the Act. Complainant’s interpretation of the Act is reasonable and supported by
the preamble to the standard. Deference to the Complainant’s interpretation is warranted under
Auer v. Robins, 519 U.S. 452 (1997).
Evaluation of Respondent’s 300-Person-Years of Experience
Notwithstanding the foregoing, the Court understands that Respondent, as well as the
Seventh Circuit, is more concerned with the purported countervailing evidence of Respondent’s
300-person-years of experience without a case of epicondylitis (other than MK’s). Given
Respondent’s interpretation of the regulatory language, it is understandable that it, as well as the
Seventh Circuit, would find the historical injury data to be persuasive, if not determinative of the
present dispute. See Caterpillar Logistics Servs., 674 F.3d at 709 (stating that it viewed the
phrase “contributed to” in 29 C.F.R. § 1904.5(a) as an increase in the probability of injury, above
background levels, by a statistically significant amount). As was shown above, this
interpretation is inconsistent with the statutory and regulatory scheme for recording injuries
because it operates under assumptions that will not always be present in every case; in particular,
(1) that background levels of a particular injury/illness are a known quantity; or (2) that the
particular employer will have a sufficient amount of operating history to establish whether its
experience of a particular injury is consistent with, or in excess of, incidence rates in the general
population. Now, that is not to say that the injury history of a particular employer, when
measured against incidence rates in the general population, is not relevant. Rather, the Court is
concerned that the use of such a benchmark would frustrate one of the primary purposes of the
standard, which is to “promote research into the causes and prevention of occupational injuries
66 Fed. Reg. at 5929.
In this case, although there is evidence that Respondent’s experience of epicondylitis is
below the levels experienced in the general population,
there is also evidence that there are risk
factors present in Respondent’s Consol Pak plant that have been recognized by the medical
profession as being linked to epicondylitis. The competing inferences to be gained from these
two pieces of information provide the foundation of the present controversy. The Court has
already established why it has credited Dr. Harrison’s testimony over that of Dr. Covert. See
Caterpillar Logistics Servs., 23 BNA OSHC 1806 (finding that Dr. Covert’s opinion was
inconsistent with the opinions of Dr. Harrison, Dr. Just, Mr. Edwards, and the AMA Guide to
Evaluation of Disease and Injury Causation). As noted above, Dr. Harrison stated that a finding
that epicondylitis occurred at Consol Pak at a rate greater than that of the general population
would confirm his finding that MK’s epicondylitis was work-related; however, he also stated
that the historical data is not a consideration as to whether a particular incidence of epicondylitis
is work-related, nor was it a part of medical best practices to do so. (Tr. 541–45).
Dr. Covert testified as to his methodology and did not indicate that statistical evaluation
of risk would determine that a particular injury was work-related. (Tr. 1307, 1309–17, 1322–26,
1330–36, 1342–45). Rather, Dr. Covert testified with respect to two other cases that he had
worked on—UPS and Mallinckrodt—that involved a high incidence rate of epicondylitis. Dr.
Covert stated that the high rate of epicondylitis indicated the presence of “some sort of
mechanical risk factor.” (Tr. 1355). It was only after he determined that there was an unusual
incidence of epicondylitis that he was able to determine what those risk factors were. (Tr. 1315,
1347–48, 1354–55). In other words, in the case of Mallinckrodt and UPS, the presence of a
cluster of epicondylitis cases was only an indication of an unidentified mechanical risk factor. It
was not until he did an analysis of the work environment itself that he was able to determine
whether such a risk factor existed or whether there was a different explanation. (Id.). This
methodology is consistent with Dr. Harrison’s, which looked at the particular activities and
environment that MK worked in to determine if any risk factors related to epicondylitis were
present. Put simply, the use of historical injury data serves the diagnostic purpose of
determining whether a particular worksite may have an ergonomics problem; however, it is not
until the particular worksite is examined that a conclusion can be reached as to whether that
problem is work-related. In that regard, Respondent’s injury history may be relevant, though
slightly, to the Court’s determination that MK’s epicondylitis was work-related; however, it is by
no means a determinative factor, especially when measured against the considered opinion of Dr.
Harrison, who was able to clearly and convincingly describe to this Court how the risk factors
present at the Consol Pak plant contributed to MK’s epicondylitis.
In addition to the foregoing, the Court would like to address one last issue regarding the
concept of contribution. Respondent makes much of the fact that there are numerous other
employees at Consol Pak, none of whom suffered from epicondylitis. The problem, however, is
that none of these people are MK. Similar to the concept of the “eggshell plaintiff” in civil
litigation, you take your workers as they are. Perhaps there were numerous contributing factors
to MK’s epicondylitis—Dr. Covert mentioned that gender, smoking, and obesity are a few of
those factors—however, the presence of multiple factors does not establish that MK’s
epicondylitis was not work-related. In fact, for an injury or illness to be recordable, the work
activity itself need only be a contributing cause, not the only or “predominant” cause. See 66
Fed. Reg. at 5929. Neither Dr. Just nor Dr. Covert could provide a competing, nonwork
explanation to a reasonable degree of medical certainty. Respondent’s witnesses merely
speculated as to potential alternative causes. (Tr. 1440–41). Dr. Harrison, on the other hand,
identified specific and discernible risk factors at Consol Pak that likely contributed to MK’s
epicondylitis. (Tr. 460–61, 468). Accordingly, the only reasonable conclusion was that MK’s
epicondylitis was work-related and, therefore, recordable pursuant to 29 C.F.R. § 1904.4(a).
The preamble indicates that a determination of work-relatedness includes consideration
of “the employee report, the ergonomic risk factors present in the employee’s job, and other
available information.” 66 Fed. Reg. at 6018. Although Respondent relied on “other
information” in the form of its injury history, the Court finds that injury history is but one factor
to consider when assessing whether an injury is work-related. The weight of the evidence,
including MK’s report and the ergonomic risk factors identified by Dr. Harrison, illustrates that
MK’s activities at Caterpillar’s Consol Pak, at the very least, contributed to her epicondylitis.
Based upon the foregoing, it is ORDERED that Citation 1, Item 1 is AFFIRMED and a
penalty of $900.00 is ASSESSED.
/s/Patrick B. Augustine
Dated: October 9, 2012
PATRICK B. AUGUSTINE