____________________________________________
                                            :
SECRETARY OF LABOR,                         :
                                            :
               Complainant,                 :
                                            :
          v.                                :      OSHRC Docket No. 93-3327
                                            :
DAYTON TIRE, BRIDGESTONE/FIRESTONE          :
                                            :
               Respondent.                  :
                                            :
UNITED STEELWORKERS OF AMERICA,             :
LOCAL 998,                                  :
                                            :
               Authorized Employee          :
               Representative.              :
____________________________________________:


Appearances:

   Janice H. Mountford, Esq.           Willis J. Goldsmith, Esq.
        Office of the Solicitor             Jones, Day, Reavis & Pogue
        U.S. Department of Labor             Washington, D.C.
                For Complainant                    For Respondent

   Tony Carr
        USW Local 998
        Oklahoma City, OK
                For Employees

Before:  Administrative Law Judge Robert A. Yetman

*_DECISION AND ORDER_*

On November 2, 1993, Dayton Tire, A Division of Bridgestone/Firestone,
Inc. ("Dayton"), was issued two citations stemming from the inspection
of a Dayton tire manufacturing plant located in Oklahoma City, Oklahoma.
The serious citation alleged two violations of § 5(a)(1) of the Act -
the first addressing the hazard of heat stress, the second addressing
the hazard of assorted ergonomic "stressors" - as well as eleven
violations of various general industry standards. The other than serious
citation alleged one violation of the recordkeeping standard and one
violation of a general industry standard governing access to medical
records. Dayton filed a notice of contest for both citations on November
19, 1993. On January 25, 1994, the United Rubber, Cork, Linoleum &
Plastic Workers of America ("Union"), the authorized bargaining agent
for affected employees at the Dayton plant, was granted party status.

The case was assigned to Judge Louis LaVecchia on March 11, 1994. After
a period of discovery, Dayton filed a motion for partial summary
judgment on December 19, 1994, with regard to the two general duty
clause violations (items 1 and 2) alleged in the serious citation. Judge
LaVecchia granted this motion on January 3, 1995, and the remaining
items (items 3-13 of Serious Citation No. 1 and items 1 and 2 of other
Citation No. 2) were settled by the parties on January 27, 1995. On
February 15, 1995, Judge LaVecchia approved the partial settlement
agreement and reaffirmed his order granting partial summary judgment for
Dayton. The judge's order was docketed with the Review Commission on
March 16, 1995.

On April 5, 1995, the Secretary petitioned the Review Commission for
review of the partial summary judgment order. On April 17, 1995, the
Review Commission issued an order directing the case for review and
remanding it to Judge LaVecchia with instructions to provide the
requisite findings of fact and conclusions of law supporting his
disposition of Dayton's motion for partial summary judgment. On April
28, 1995, Judge LaVecchia issued an order on remand vacating his
original order granting partial summary judgment for Dayton on the
grounds that it was erroneous.

The case was reassigned to the undersigned Judge for trial on July 12,
1995 and heard over a period of six months. The Secretary withdrew Item
1 of Serious Citation 1, the alleged heat stress violation, at the
beginning of the hearing leaving only Item 2, the alleged ergonomics
violation, in dispute (Tr. 60-61). Of the 22 instances of violation
alleged under this item, the Secretary has withdrawn the following nine
instances: D, E, G, H, I, M, O, T, and U (Tr. 6293-94).[1]

*_INSPECTION AND CITATION HISTORY_*

On May 6, 1993, Faye Kearney, the senior compliance officer assigned to
this case, began an inspection of the Dayton plant in response to a
complaint regarding ergonomic hazards and access to medical records (Tr.
5708-10, 5811). Kearney has been an industrial hygienist with OSHA but
is not certified (Tr. 5807-08). Her ergonomic experience consists of
attending a two-week ergonomics seminar at the OSHA institute and
conducting five or six ergonomic inspections prior to the Dayton
inspection (Tr. 5700, 5702).

During the initial phase of the inspection, Kearney reviewed Dayton's
OSHA 200 logs, OSHA 101s, and clinic dispensary passes, for the previous
five years (Tr. 5710-12).[2] Kearney testified that the purpose of this
review was to check for a "trend or pattern of repetitive motion
injuries or illnesses" (Tr. 5712). After her review, she calculated
injury incident rates for each job classification at the Dayton plant
and found rates of "10% or higher" - considered significant by OSHA
guidelines - for those jobs ultimately cited (Tr. 5714-16, 5807).

During the first week of June, 1993, Kearney conducted a walk-around
inspection of the plant with Dayton's safety manager, Kelley Elaine
Mattocks, union representative Tony Carr, and compliance officer trainee
Carlos Reynolds. At this time, she observed more than 26 job functions
and took photographs of the work processes (Tr. 5732-33, 5759-60, 5806).
From June 22 through July 20, 1993, Kearney conducted a second
walk-around of the plant with the same group of individuals, during
which trainee Reynolds videotaped each of the jobs in accordance with
Kearney's instructions (Tr. 304, 5726, 5761, 5767-68, 5770, 5812; Ex.
C-962). Kearney stated that she used job evaluation forms supplied by
Dayton to assist with this phase of inspection (Tr. 5768-69, 6479).
These forms contain detailed information about each job, including its
characteristics, physical demands and work conditions (Exhibits C-645 to
C-666).

On August 16, 1993, Kearney sent the videotape taken by Reynolds and her
narrative documentation to Brett Besser at the OSHA Salt Lake City
Laboratory for an "ergonomic evaluation" (Tr. 5773-74; Exs. C-962,
R-5585). Besser is a physical scientist and a certified industrial
hygienist whose job entails analyzing videotapes of various work
processes and identifying "ergonomic stressors", as well as feasible
abatement measures (Tr. 6011-12, 6014- 15). In a cover letter
accompanying these materials, Kearney informed Besser that the injury
incident rates associated with all of the Dayton jobs submitted for his
review were 10% or higher (Tr. 5803; Ex. R-5585). The narrative sent to
Besser also included job descriptions taken from the job evaluation
forms, as well as handwritten notes added by Kearney and Reynolds (Tr.
5828-29, 5831, 5838- 46). Kearney briefly discussed this data with
Besser by telephone on two occasions (Tr. 5775, 6286-89, Ex. R-5586).
Besser completed his analysis and sent a written report detailing his
findings to Kearney on October 18, 1993 (Ex. R-5586). The report
consisted in large part of language contained in prior reports authored
by Besser and incorporated in the Dayton report with minor changes.
Besser testified that he did not intend for his report to be used as a
basis for the issuance of a citation (Tr. 6025-29). Kearney testified
that upon receiving the Besser report, she did not conduct any
additional investigation or analysis nor did she discuss the report with
Besser (Tr. 5779, 5873, 5900).

On October 25, 1993, Kearney held the closing conference for the Dayton
inspection (Tr. 5972-73, 5975; Ex. R-5691). Sometime between October 18
and November 2, 1993, the date of the citation, she recommended that
Dayton be issued a willful citation (Tr. 5781). Kearney testified that
she relied completely upon Besser's report for the identification of
ergonomic stressors and recommendations for abatement associated with
each job copying each section from his and into the citation virtually
verbatim (Tr. 5892-93, 5900, 5932-33, 5936-38, 6316-17). On cross-
examination, however, she admitted that she actually drafted only
one-fourth of the citation and left the remaining portion for trainee
Reynolds to complete while she was out of the office on leave. Upon her
return to the office on October 18th, she did not review the citation
before it was sent out (Tr. 5933-34).

According to Kearney, normal procedure after completion of the drafting
process is to submit the proposed citation (1) to a supervisor for
review, then (2) to send the citation for typing, (3) submit the
citation for a second supervisor review, (4) proofreading, and (5) final
review by the area director (Tr. 5959-60). Since she was on leave,
Kearney did not know if this procedure was followed for the Dayton
citation; however, she claims that Reynolds assured her the proper
procedures were followed (Tr. 5947-48, 5962, 5977-78). According to her
diary sheet for the Dayton inspection, the draft citation was submitted
to Kearney's supervisor on November 1, 1993, almost two weeks /after/
her return from leave (Tr. 5976; Ex. R-5691).

As issued, the citation generally alleges that Dayton employees were
exposed to the "increased risk of developing" [3] cumulative trauma
disorders. Generally, these are disorders which occur over time as the
result of a repeated or continuous trauma to the body and include
conditions such as carpal tunnel syndrome, tendinitis, bursitis, and
various back injuries (Tr. 1399-1400, 1423, 2259-61, 3175-76, 4377,
4543, 4673, 5099). As noted at the hearing, the Secretary's case is
limited to proving that which is set forth in the citation (Tr. 2021-23,
2674). Therefore, the Secretary is restricted to proving that only those
work activities specifically alleged under each instance of violation
constitute ergonomic stressors. For example, under Instance A, the
Secretary alleges that the ergonomic stressors associated with the belt
loader position are frequent lifting, elevated and extended reaches, and
long periods of standing. Although the Secretary attempts to treat this
list as illustrative by prefacing it with the phrase "such as", she
cannot without notice to respondent, be allowed to allege an infinite
number of unknown stressors. In the absence of that notice the Secretary
is bound by the specific stressors listed. Similarly, the Secretary is
restricted to establishing the injuries alleged under each instance of
violation as "consistent with" the identified stressors. For all but
three of the instances, specific disorders or injuries are listed as
consistent with the stressors alleged.[4] For example, under Instance F,
the Secretary alleges that the ergonomic stressors associated with the
beadwinder job are "consistent with the development of acute shoulder,
upper arm, upper back muscle, and tendon fatigue such as strains,
sprains, tears or UECTDs such as bursitis, tendinitis, and rotator cuff
injuries." For some instances, however, the listed conditions include
broad categories of injury such as musculoskeletal injuries and back
injuries.[5]

*_KEY WITNESSES_*

*_I. Fact Witnesses_*

*_Brett Besser_*

Mr. Besser is a certified industrial hygienist who works at the OSHA
Salt Lake City Laboratory as a physical scientist (Tr.6011, 6015). Since
1992 his primary job duty has been to conduct ergonomic analyses, a
process which involves reviewing videotapes of workplace activities,
identifying ergonomic stressors, and determining feasible abatement
measures (Tr. 6012-13). Besser's ergonomic experience is limited to
three weeks of training and two courses that were part of his master's
degree curriculum (Tr. 6012, 6022, 6153-54). At the time of the hearing,
Besser had participated in six to ten ergonomic inspections and examined
over 100 videotapes from various industries (Tr. 6015-17). At Kearney's
request, Besser reviewed the data gathered from the inspection of the
Dayton plant and issued a report of his findings on October 18, 1993
(Exhibit R-586). Having never visited the plant himself, he based his
report exclusively upon the information provided by Kearney, as well as
texts and other materials which he listed in a bibliography (Tr. 6144,
6177, 6180, 6203-04; Exhibit C-989).

In his report, Besser examined each of the cited job classifications,
identified the ergonomic stressors which he believed are associated with
these jobs, and provided "known controls" or abatement measures which he
believes would reduce or eliminate the effect of the stressors (Exhibit
R-5586). For those jobs for which he determined lifting was a stressor,
he used the lifting equation set forth in the 1981 National Institute of
Occupational Safety and Health (NIOSH) guidelines to calculate an
"action limit", a figure which takes into account the characteristics of
a given lift and provides an acceptable weight that can be lifted by
most individuals (Tr. 6033-34, 6102, 6314).[6] The NIOSH equation is
based upon epidemiological, biomechanical, physiological, and medical
studies (Tr. 1658).

On cross-examination, Besser admitted that much of his report is
"boilerplate" or "canned" language which he simply duplicated from
previous analyses (Tr. 6241-44, 6371-86). He cautioned against treating
his report as a complete ergonomic evaluation, indicating that an
ergonomist should be hired to fully investigate suggested abatement
measures (Tr. 6025-29). Besser also indicated that he expected Kearney,
upon receipt of his report, to examine injury incident rates at the
Dayton plant in order to determine whether a hazard existed at the plant
(Tr. 6066-67, 6316-17).

Mr. Besser was not offered by the Secretary to testify as an expert.
Thus, his testimony need not be scrutinized for reliability pursuant to
rule 207 FRE see testimonial analysis of Drs. Schulze and DeHart
/infra/. However, since Besser is not an expert, his testimony is
accepted only as Complainant's representative who performed certain work
activities preparatory to the issuance of the citation in this matter.
His description of those work activities or thought processes, as with
compliance officer Kearney, are relevant only to describe the elements
which the Secretary believed were present to support and form the basis
for the issuance of the citation.

*_Plant Doctors_*

Four doctors who worked at the Dayton plant's onsite medical clinic
during the period in question testified at the hearing. All of the four
doctors worked at Respondent's plant pursuant to a medical services
contract between Dayton and St. Anthony's Hospital or the McBride Clinic
(Tr. 4371- 72, 4525-26, 4677-80, 4831, 4840). Their duties included
treating work-related injuries sustained by plant employees, performing
new hire physicals, and participating in the plant's medical committee
(Tr. 4272-75, 4386-87, 4527-28, 4531, 4680-81, 4694, 4841-42). As a
group, the testimony of the plant doctors covered a range of topics,
such as clinic procedures and specific employees whom they have treated.
Though seemingly well-qualified in their respective fields, the plant
doctors were not offered by the Secretary as expert witnesses (Tr.
4377-83, 4833).

Dr. Melissa Carla Smith-Horn, an employee of St. Anthony's Hospital,
worked at the Dayton plant for six weeks in 1992, then from the fall of
1992 to May of 1993 (Tr. 4371-72). Dr. Smith-Horn has practiced medicine
since 1987 and her specialty is occupational medicine (Tr. 4367-69).

Dr. Paula Rose Root, an employee with St. Anthony's Hospital, worked as
medical director at the Dayton plant from fall of 1992 until March of
1993 (Tr. 4525-26, 4588). Dr. Root has practiced medicine since 1988 and
her specialties are family and preventive/occupational medicine (Tr.
4522, 4524-25).

Dr. McKinley Snipe Lundy, an employee with the McBride Clinic, worked at
the Dayton plant from August 1991 to November 1992 (Tr. 4677). Dr. Lundy
has practiced medicine since 1980 and his specialty is occupational
medicine (Tr. 4663-65).

Dr. Jack W. Parrish, an employee with the McBride Clinic, worked at the
Dayton plant from October 1981 to November 1992 (Tr. 4839, 4845). Dr.
Parrish has practiced medicine since 1954 and his specialties are family
and occupational medicine (Tr. 4828, 4830).

*_Dayton Employees_*

A total of thirty-nine employees from various job classifications
testified at the hearing. Since eight of these employees testified in
connection with instances which were subsequently withdrawn by the
Secretary, the testimony of thirty-one employees remains relevant.
During the period in question, the employees worked 8-hour shifts that
were broken up by two 10-minute breaks and one 20-minute lunch break,
known as the "10/20/10" breaks. Most of the employees testified that
were also entitled to take unscheduled restroom or water breaks, while
others indicated that they often took no breaks at all. Some employees
also mentioned that they worked varying amounts of overtime during a
normal work week.

*_II. Expert Witnesses_*

The Secretary offered two witnesses as experts at the hearing: Dr.
Lawrence Schulze and Dr. Roy Lynch DeHart. Dayton's only witness, Dr.
Hadler, was also offered as an expert. With regard to the testimony of
Dr. DeHart, there remains an outstanding motion made by Dayton arguing
that a portion of Dr. DeHart's testimony constitutes "new information"
and should be stricken. Dayton has also moved for sanctions against the
Secretary. For the reasons set forth /infra/, footnote 12, these motions
are denied. Although neither Dr. Schulze nor Dr. DeHart reviewed a copy
of the citation in any detail prior to or as part of their respective
analyses, as emphasized at the hearing, each expert's analysis is
relevant only to the extent that it relates to the charges contained in
the citation (Tr. 1998- 99, 2007, 2230-31, 2419, 2452-53, 2705-06, 2712,
5525, 5634).

*_Dr. Lawrence Schulze_*

Dr. Schulze is an assistant professor in and director of the
engineering/safety graduate program at the University of Houston (Tr.
1360, 1366-67; Exhibit C-626). He has a Ph.D. in industrial engineering,
with concentrations in the fields of ergonomics and safety (Tr. 1356-58,
1413). Dr. Schulze is also a certified professional ergonomist and
operates his own consulting business (Tr. 1358-59, 1379). He was offered
by the Secretary as an expert in ergonomics and accepted as an expert in
industrial engineering with ergonomics as his specialty (Tr. 1401,
1431). He has no medical training or experience.

Dr. Schulze was hired to perform an ergonomic evaluation of all Dayton
plant job classifications cited here (Tr. 1461, 1466). As explained
/infra/, his evaluation was conducted using a combination of the
"observational method" and "functional job assessment" (Tr. 1395-96,
1457-59, 2596-97). Dr. Schulze began his analysis in October of 1994 by
reviewing Dayton's OSHA 200 logs and accident analysis files (Tr.
1459-60). He then visited the Dayton plant over the course of three
days, videotaping over 28 hours of work activities and measuring the
layouts of each work station (Tr. 1429, 1460, 1463-64, 2461-62; Exhibits
C-964, C-965, & C-966). After evaluating this data, he identified
"ergonomic problem areas" associated with each job and developed
recommendations to reduce or eliminate their impact on employees (Tr.
1460). For those jobs for which he determined lifting was a stressor,
Dr. Schulze used the lifting equation set forth in the 1991 version of
the NIOSH lifting guidelines to calculate a recommended weight limit,
the weight at which an individual could safely perform a lift with the
given characteristics (Tr. 1532, 1541, 1649- 50; Exhibit R-5675). His
findings were submitted to OSHA in a lengthy final report (Exhibit
C-628).[7]

At the hearing, there was considerable debate over the exact issues for
which Dr. Schulze's testimony was offered. Specifically, concern focused
on the role that Dr. Schulze's testimony plays in the Secretary's case
regarding causation, i.e. her claims that the cited work activities
performed by Dayton employees caused or were likely to cause injury or
harm. Upon a review of the record, it is clear that the Secretary
intended for Dr. Schulze to address only the potential for injury to
occur as the result of a given work activity, not to link actual
injuries with these tasks. According to the Secretary's counsel, Dr.
Schulze's purpose at the hearing was to: (1) identify ergonomic
stressors; (2) indicate, based upon on his "knowledge of the literature
that's available in the field, his training and education", the injuries
that are likely to result from, or are "consistent with" such stressors;
and (3) recommend abatement measures which will reduce or eliminate the
stressors (Tr. 2387, 2390-91, 2393-94, 2396, 2399-2400). As the
Secretary's counsel noted, in order to explain how an identified work
activity may validly be considered an ergonomic stressor or "problem
area", Dr. Schulze must link the activity with the potential for injury
or harm; in other words, he must generally identify how this activity
places the employee at risk for harm (Tr. 2391, 2415-17). In this
respect, Dr. Schulze's analysis does not establish the cause of any
actual injuries suffered by Dayton employees.[8] The Secretary's counsel
made it clear that this was an area which would be covered by her other
expert witness, Dr. DeHart (Tr. 2274-75, 2397, 2401, 2411-12).
Therefore, Dr. Schulze's testimony is relevant to the issue of causation
only to the extent that the potential for injury is in question.

As noted at the hearing, Dr. Schulze's contention that a given work
activity poses a hazard because it is likely to result in injury would
be rooted in his understanding of the medical profession's findings in
this area (Tr. 2415). For example, he could have explained that, as an
ergonomist, he accepts that wrist deviation results in carpal tunnel
syndrome because a particular report or study performed by a qualified
member of the medical community establishes as much. But he failed to do
so here, relying instead on unsubstantiated assertions that a given
movement is, in fact, a stressor simply because he "knows" that it can
potentially lead to injury. Although Dr. Schulze repeatedly claimed at
the hearing that he is aware of literature which supports his
conclusions, he was unable to provide the titles, authors, and/or the
final results for most of these relevant materials, none of which were
submitted into evidence by the Secretary (Tr. 2133, 2150, 2164, 2171-73,
2320-21, 2333-34, 3205-06, 3522-27).[9] Likewise, with no details as to
the facts supporting his sources, the bibliography Dr. Schulze prepared
also fails to provide the evidence needed to support his claims (Tr.
2432- 50). Under these circumstances, the significance of Dr. Schulze's
testimony to the Secretary's case regarding causation, even if reliable,
is minimal at best (see /Daubert/ analysis /infra/).

*_Dr. Roy Lynch DeHart_*

Dr. DeHart is a professor of occupational and family medicine at the
University of Oklahoma Health Sciences Center (Tr. 5062; Exhibit C-625).
He has a medical degree from the University of Tennessee and is
certified in the fields of preventive/occupational and family medicine
(Tr. 5063, 5069-71). Dr. DeHart also serves as chairman of the
department in which he teaches, a role which requires him to train and
supervise residents who examine patients in an onsite clinic on a daily
basis (Tr. 5071-72). In addition to teaching, Dr. DeHart privately
treats patients, largely in a consultant capacity (Tr. 5072-73). At the
hearing, he was offered and accepted as an expert in occupational
medicine (Tr. 5117).

Dr. DeHart was hired by the Secretary specifically to establish
causation, i.e. to prove that the work performed by Dayton's employees
was causing or likely to cause the injuries alleged by the Secretary
(Tr. 5368-69). Employing what is known as ratio or relative risk
analysis, Dr. DeHart calculated specifically defined injury incident
rates for each Dayton job classification, then compared each rate to the
national tire industry's general injury rate as calculated by the Bureau
of Labor Statistics (BLS) (Tr. 5138-42, 5168, 5170, 5217). Before
performing his relative risk analysis, Dr. DeHart first conducted an
extensive process by which the information supplied to him by OSHA was
reviewed. Specifically, he assembled a "team" of residents and faculty
from the University of Oklahoma to review 300- plus employee medical
records, the videotape of each job taken by trainee Reynolds, and
Besser's ergonomic evaluation report (Tr. 5144-46; Exhibit C-627 at 1-2).

Using data entry forms developed for the review process, the residents
gathered data from the 300-plus medical records, documenting those
injuries considered musculoskeletal in nature (Tr. 5146-47, 5203, 5415;
Exhibit C-493).[10] Also included on the data sheets was a list of
potential stressors identified by the team as associated with a given
job, some of which were the same stressors alleged by OSHA (Tr. 5150,
5408-09, 5524; Exhibit C-493).[11] Each stressor was then assigned a
rating on a scale of zero to four indicating the team's degree of
confidence that a particular stressor and the identified injury were
related (Tr. 5150, 5156-58). The team also coded each injury with an X,
Y or Z in order to indicate, respectively, whether the employee was
returned to work without restrictions, returned to work with
restrictions, or was removed from the workplace for any amount of time
(lost worktime) (Tr. 5155).

The data entry forms were reviewed on at least two separate occasions by
a group of faculty, including Dr. DeHart, in an attempt to validate the
data on the forms as compared to that found in the medical records (Tr.
5146-47, 5166, 5168). Several summary sheets were generated to summarize
and compile the information contained on the data entry forms (Tr. 5415,
5417-18). According to Dr. DeHart, it became apparent during the review
process that a number of injuries which were not musculoskeletal in
nature had nonetheless been documented by the team of residents on the
data entry forms (Tr. 5213, 5483-84). As Dr. DeHart indicated at the
hearing, "some other injuries were occasionally recorded", such as
foreign bodies in the eye, burns, and lacerations (Tr. 5147, 5177-78,
5457-74, 5499-5517; Exhibit C-427). In some instances, the
non-musculoskeletal injuries were not only documented, but also
inaccurately associated with identified stressors.

On December 22, 1994, prior to any of the team's efforts to "clean up"
the injury data by removing these mistakes, Dr. DeHart provided a
written report of his findings to OSHA (Tr. 5175-78, 5241-42, 5250;
Exhibit C-627). Subsequent documentation was provided to OSHA, but only
in the form of summary sheets, as the team continued its efforts to
correct the data (Tr. 5232-45). The "clean-up" process apparently lasted
until just a few days prior to Dr. DeHart's testimony at the hearing
with the last set of data in evidence dated February 28, 1996 (Tr.
5232-45, 5398, 5686-87; Exhibit C- 987).[12] According to Dr. DeHart,
the goal was to revise the injury data to reflect (1) only those
injuries which were musculoskeletal in nature, (2) had a high
probability of being related to an identified stressor (as evidenced by
a rating of 3 or higher on the rating code scale), and (3) resulted in
either lost worktime for the injured employee or a return to work with
restrictions (as evidenced by a Y or a Z designation) (Tr. 5169,
5212-14, 5583-84).

Despite multiple efforts to correct the injury data, Dr. DeHart's
"cleaned-up", final written set of data still contains obvious errors
(Exhibit C-987).[13] For instance, one of the musculoskeletal injuries
rated as having a high probability of being ergonomically related to the
job is a foreign object in the right eye of a tire builder (Exhibit
C-987 at 13). Another is a right ring finger trauma suffered by a belt
loader that apparently occurred as the result of a pallet smashing it
(Tr. 5457-61, 5480-82, 5485; Exhibits C-987 at 1 & R-5680). Yet another
injury contained in the data is an incident of low back pain suffered by
a tire builder that apparently occurred as the result of his being
jarred while operating a vehicle (Tr. 5475-78; Exhibit C-987 at 13).
This latter injury also highlights the fact that a large number of the
entries listed in Dr. DeHart's data are merely descriptions of pain, not
diagnosed conditions. As Dr. DeHart conceded at the hearing, pain is a
symptom, not an injury (Tr. 5487-88).[14] Still other entries are
ambiguously described as "musc" or simply "back", providing no
indication of a symptom, let alone a diagnosis (Tr. 5488; Exhibit C-987
at 12). Without the medical records underlying his analysis, there is
simply no way, as Dr. DeHart himself admitted, to verify whether the
data contained on these sheets is accurate (Tr. 5478-79, 5482).

To compound the problem, Dr. DeHart repeatedly indicated that the
records on which his analysis is based were seriously deficient.
According to his testimony, the medical records were not "precise
enough" to allow him or his team to definitively establish that the
injuries documented therein were work-related (Tr. 5156). He stated that
the only assurance of work-relatedness came from 27 corresponding
workers compensation records, leaving over 300 records for which the
team was unable to absolutely conclude that the documented injuries were
work-related (Tr. 5156, 5395-96). In addition, some of the medical
records lacked a diagnosis, requiring the team to supply a diagnosis
based upon the available data (Tr. 5202, 5400). Dr. DeHart agreed that
in order to assess the relationship between an identified stressor and
an alleged injury, one must be able to fully assess the medical
condition of the employee, including diagnosis. He conceded, however,
that he and the team "did not have [the] full data" to do so here (Tr.
5399- 5400).

Dr. DeHart also acknowledged that the medical records were not complete
because they lacked comprehensive medical histories for the employees as
well as very little information regarding the individual employee's
personal characteristics (Tr. 5390). These deficiencies made it
impossible for Dr. DeHart to rule out preexisting conditions, prior
injuries, or any one of the many "confounders", such as gender, weight,
or age, related to the development of musculoskeletal injuries, as
potential causes of a given injury. Thus, he was unable to state the
degree to which an individual's work activities, as opposed to other
factors, actually contributed in whole or in part, to the identified
physical malady (Tr. 5410-13, 5396, 5412, 5429, 5451, 5609). In general,
Dr. DeHart agreed that the records "did not provide...all the
information necessary for a proper assessment of an individual's injury
and whether it was ergonomically related" (Tr. 5390, 5395). Despite this
admission, Dr. DeHart persists in his claim that "in his professional
opinion", causation has been established for Dayton's injured employees
as a whole, but not on an individual basis (Tr. 5272, 5366).
Specifically, Dr. DeHart testified that he cannot say why a particular
musculoskeletal injury has occurred because, as noted above, the medical
records he and his team reviewed lacked the data critical to such a
determination (Tr. 5270-74, 5351, 5375). However, based upon the "flow
of data" and the "relative risk" associated with each job, Dr. DeHart
claims that he "moved toward causation" and was able to ultimately
conclude that causation had been established for Dayton's injured
employees as a whole (Tr. 5366-67, 5375-77, 5431). On the other hand,
Dr. DeHart fails to adequately explain how the limited data contained in
the medical records can be insufficient for him to determine causation
on an /individual/ basis, yet still serve as a valid basis for his
otherwise unsubstantiated conclusion that causation exists for Dayton
employees as a population.

*_Dr. Nortin Hadler_*

Dr. Hadler, the only witness called by Respondent, is a medical doctor
who is a member of the faculty at the University of North Carolina
Medical School (Tr. 6625; Exhibit R-5657). His specialties include
internal medicine and rheumatology, an area which includes
musculoskeletal disorders (Tr. 6628, 6635-36). Dr. Hadler has impressive
credentials: he serves on several medical journal editorial boards, has
been invited to deliver lectures at academic institutions all over the
world, and has received numerous honors and fellowships (Exhibit
R-5657). He is widely published and his most recent publication, a 1993
text entitled "Occupational Musculoskeletal Disorders", is considered a
core text for ergonomics and musculoskeletal medicine by the American
College of Occupational and Environmental Medicine (Tr. 6663-65;
Exhibits R-5657 at 7- 15, R-5692, & R-5677). Dr. Hadler was offered and
accepted as an expert in "the etiology, diagnosis, treatment, and
prevention of disorders to the musculoskeletal region, that may or may
not result from occupational exposures, and the general body of medical
and scientific literature that addresses these issues" (Tr. 6675-76,
6706-07).

Generally, Dr. Hadler believes that there is a range of activity or
"ergonomic exposure" that only becomes unhealthy at its extremes. Just
as too little or no activity can be harmful, too much activity, defined
by Dr. Hadler as a level "just short of" or approaching violence, can
also be harmful (Tr. 6716-19, 6861-62, 6866-68, 6883, 6913, 6953-54;
Exhibit R-5709). For Dr. Hadler, an example of activities that fall
within the latter category are those engaged in by professional athletes
(Tr. 6861, 6868, 6913-14, 6946). While there is no identifiable point at
which the activity becomes harmful, Dr. Hadler maintains that movement,
in general, is good and repetitive motion is necessary for the health of
one's tendons, bones, and ligaments (Tr. 6719, 6723-24, 6873).

Dr. Hadler does not dispute that maladies of the type alleged here by
the Secretary actually exist (Tr. 6957-58, 6994). Indeed, he identified
three types of musculoskeletal disorders which can affect an
individual's upper extremity or body, the latter two of which are
relevant here: degenerative joint diseases such as osteoarthritis;
peripheral nerve disorders such as carpal tunnel syndrome; and soft
tissue disorders such as tennis elbow or bursitis (Tr. 6728-33; Exhibit
R-5693). Dr. Hadler disputes the cause of such disorders as alleged by
the Secretary claiming that a significant number of scientific studies
have been unable to prove that these types of conditions can be
attributed to repetitive or forceful work activities.

To support his argument, Dr. Hadler reviewed eleven scientific studies,
seven of which focus upon carpal tunnel syndrome and four of which focus
upon other types of cumulative trauma disorders.[15] According to his
evaluation, none of the carpal tunnel syndrome studies support the
notion that repetitive motion is a risk factor for developing carpal
tunnel syndrome (Tr. 6766-6810; Exhibits R-5698 to R-5703).[16]
Specifically, Dr. Hadler found that this group of studies prove
individuals performing repetitive activities with their hands or wrists
do not develop impaired median nerve conductivity in any greater
proportion than individuals who do not engage in such activities.[17] Of
particular significance to Dr. Hadler were two studies conducted by Dr.
Peter Nathan, in which a group of workers was studied in 1984 and
two-thirds of the same group was studied again in 1989 after five years
of continued ergonomic exposure (Tr. 6806-09; Exhibit R- 5703).[18] In
1984, Dr. Nathan found no relationship between impaired median nerve
conductivity and repetitive and/or forceful work, nor did one develop
after five years of additional exposure.

Of the four remaining studies he reviewed, one was conducted by Dr.
Hadler himself, one by a group of NIOSH researchers, and two by Dr.
Barbara Silverstein, an epidemiologist. Dr. Hadler's study compared the
cumulative trauma disorders recorded in the OSHA 200 logs for three
groups of directory assistance operators working in three different
cities (Tr. 6811-18, 6903-09; Exhibit R-5704). He found that although
the work the operators performed varied little from site to site, the
medical conditions they experienced varied dramatically. Thus, he was
unable to conclude that their work accounted for these conditions (Tr.
6815-18; Exhibit R- 5704). The second study examined the same group of
directory assistance operators and discovered the same discrepancies as
Dr. Hadler (Tr. 6822-23; Exhibit R-5705). The two studies differed only
in terms of the methodologies used to compile the evidence of health
effect. Dr. Hadler relied upon OSHA 200 logs while the NIOSH research
group administered questionnaires and conducted physical examinations
(Tr. 6824, 6827-28). The NIOSH research group also considered which
factors might explain the variations in health effect between the three
sites and concluded that work practices and psychosocial variables, such
as working overtime or wearing bifocals, were more responsible for the
disorders experienced than computer keystroke rate, the ergonomic
variable (Tr. 6824-27).

The first Dr. Silverstein study reviewed by Dr. Hadler is an
epidemiological study which actually served as the former's doctoral
dissertation in 1985 (Tr. 6839; Exhibit R- 5706).[19] This study, which
Dr. Hadler described as "pioneering" and "important", examined 574
workers from six Detroit automotive plants who volunteered to
participate in the study (Tr. 6837-39, 6848). The workers were divided
into four groups based upon the levels of repetition and force which
they engaged in on the job. These levels were measured as either high or
low, and according to Dr. Hadler, were defined somewhat arbitrarily (Tr.
6839-41). Upon interviewing the employees, then physically examining
them for symptoms and/or signs of either carpal tunnel syndrome or
tendinitis, Dr. Silverstein generally found that the employees who
performed high repetition, high force tasks were exposed to developing
these conditions (Tr. 6846-50). Dr. Hadler disputes this conclusion as
"untenable" based on the evidence gathered for the study, and faults Dr.
Silverstein for failing to conduct electrodiagnostic testing to diagnose
carpal tunnel syndrome (Tr. 6846-49, 6853-56, 6862, 6968).

The second Dr. Silverstein study reviewed by Dr. Hadler is the only
experimental study he considered and is also rooted in Dr. Silverstein's
doctoral thesis (Tr. 6885, 6962; Exhibits R-5707 & C-990). For this
study, also known as an "intervention" study, Dr. Silverstein examined
the impact of the ergonomic changes which she recommended and
implemented at an industrial plant with a high prevalence of upper
extremity complaints (Tr. 6885-86). After evaluating the health effects
both before and after the changes were instituted, Dr. Silverstein
concluded that her study was a failure because training and education
was not provided in conjunction with the intervention (Tr. 6887, 6960).
Dr. Hadler, however, maintains that the evidence she gathered indicates
not only that cumulative trauma disorder symptoms did not abate, but
that employees actually experienced worse health effects after the
intervention (Tr. 6886-87, 6960- 62).

While Dr. Hadler's views have been considered controversial, he
maintains that other sources have voiced the same reservations as he
regarding cumulative trauma disorders and whether they may be validly
attributed to work (Tr. 5340-42, 6875-82, 6899-6901; Exhibit R-5708).
Dr. Hadler also maintains that the primary causes or sources of
musculoskeletal disorders are psychosocial factors. Specifically, he
contends that complaints which can be associated with such conditions
result when an individual experiences pain, but lacks the ability, for
whatever reasons, to cope with the pain (Tr. 6857-60, 6892, 6928-29,
6943-44, 6994-97). Here, he argued that the health effect which occurred
at the Dayton plant could be attributed to the difficulties which
occurred during contract negotiations between the union and the company
(Tr. 6860-61). Overall, Dr. Hadler concluded that none of the Dayton
employees he observed on videotape were exposed to an ergonomic hazard
(Tr. 6915-16, 6947, 6994, 7006).

*_THE RELIABILITY AND ADMISSIBILITY OF EXPERT TESTIMONY_*

The Secretary relies heavily upon the expert testimony of Drs. Schulze
and DeHart to establish that hazards (stressors) existed at Respondent's
worksite and those hazards caused or are likely to cause serious injury
or death to employees exposed to those hazards. As a preliminary matter,
the proffered expert testimony must be evaluated for reliability and its
admissibility determined. The failure of this testimony to survive
scrutiny as to admissibility will eliminate essential evidence in
support of two critical elements in the Secretary's burden of proof;
that is, the existence of hazards in the workplace and the likelihood of
resulting injury or death (causation). Accordingly, the evaluation of
the proffered testimony must be thorough and in accordance with current
case law. Both witnesses possess impressive academic credentials and
work experience and were accepted as experts within their respective
professions. However, the fact that a witness is an expert is
insufficient to establish that the testimony rendered by that witness is
reliable and, therefor, admissible. The admissibility of expert
testimony in federal courts is currently being analyzed by the courts in
light of the recent decision issued by the Supreme Court, /Daubert v.
Merill Dow Pharmaceuticals ("Daubert I")/ 113 S.Ct. 2786 (1993). The
expert evidence offered in this case must also be tested for
admissibility as required by that decision.

In /Daubert I/ the Supreme Court set the standard for admitting expert
scientific testimony in a federal trial. Prior to the issuance of the
/Daubert/ decision, the test applied for determining the admissibility
of expert scientific testimony was whether the opinion or the scientific
technique used to support the opinion was "generally accepted" within
the relevant scientific community. /See Frye v. United States/ 293 F.
1013, 1014 (1923) The Supreme Court overturned the Frye decision on the
ground that the Federal Rules of Evidence superseded the "general
acceptance" test. The court noted that under the federal rules, the
admissibility of expert testimony is governed by Rule 702 Fed. R. Ev.:

    "If scientific, technical, or other specialized knowledge will
    assist the trier of fact to understand the evidence or to determine
    a fact in issue, a witness qualified as an expert by knowledge,
    skill, experience, training or education may testify thereto in the
    form of an opinion or otherwise".

Under this rule, according to the Court, "the trial judge must ensure
that any and all scientific testimony or evidence admitted is not only
relevant, but reliable" ./Daubert/ at 2795. The trial court is the
"gatekeeper" who must evaluate proffered expert testimony to determine
its admissibility. See /Dauberts' Gatekeeper: The Role of the District
Judge in Admitting Expert Testimony/ 68 Tulane Law Review 1457 (1994).
The evaluation of the evidence "entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue" /Daubert/ at 2796.

The Court noted that expert witnesses are permitted wide latitude to
offer opinions including opinions that are not based upon first hand
knowledge. While stating that a definitive check list was not being
offered, the court set forth four "general observations" that should be
considered when evaluating the reliability of scientific expert
testimony.[20] First, the trial judge must determine whether a theory or
technique employed by the witness is "scientific knowledge" which will
assist the fact finder and whether the theory or technique can be (and
has been) tested. A second consideration is whether the theory or
technique used by the expert has been subject to peer review and
publication. Third, what is the known error rate for the theory or
technique and finally, has the theory or technique been generally
accepted within the relevant scientific community. The Court
contemplates a "flexible" application of the suggested elements of
inquiry to establish scientific validity (evidentiary relevance and
reliability) of the proffered evidence. /Ibid/ at 2796-97

The Court observed, by quoting Judge Weinstein that "[e]xpert evidence
can be both powerful and quite misleading because of the difficulty in
evaluating it. Because of this risk, the judge in weighing possible
prejudice against probative force under Rule 403 of the present rules
exercises more control over experts than over lay witnesses" /Weinstein/
138 F.R.D. at 632. /Id/ at 2798. The role to be played by scientific
expert testimony and the need to scrutinize that evidence by the fact
finder was explained by the Court as follows:

    It is true that open debate is an essential part of both legal and
    scientific analyses. Yet there are important differences between the
    quest for truth in the courtroom and the quest for truth in the
    laboratory. Scientific conclusions are subject to perpetual
    revision. Law, on the other hand, must resolve disputes finally and
    quickly. The scientific project is advanced by broad and wide
    ranging consideration of a multitude of hypotheses, for those that
    are incorrect will eventually be shown to be so, and that in itself
    is an advance. Conjectures that are probably wrong are of little
    use, however, in the project of reaching a quick, final, and binding
    legal judgment - often of great consequence - about a particular set
    of events in the past. /Id/.

On remand, the Ninth Circuit analyzed and applied the new test for
admissibility of scientific testimony /Daubert v. Merrill Dow
Pharmaceuticals, Inc./ 43 F.d. 1311 (9th Cir. 1995) (/Daubert II/) by
first observing that it is necessary to engage in a two pronged
analysis; first, it is necessary to determine whether the expert
testimony reflects "scientific knowledge," that is, does the testimony
evolve from good science obtained by utilizing a "scientific method"
and, secondly, is the evidence relevant to the case. /Daubert II/ 32
F.3d at 1315. The court emphasized that it is the role of the fact
finder to ensure that the testimony constitutes "good science" and stated:

    Our task, then, is to analyze not what the experts say, but what
    basis they have for saying it.... This means that the expert's bald
    assurance of validity is not enough. Rather, the party presenting
    the expert must show that the expert's findings are based on
    objective, independent validation of the expert's methodology. Id.
    at 1316 [21] (/See also Peter v. Huber, Galilio's Revenge: Junk
    Science in the Courtroom/ cited by the Court at 1317)

In /Daubert II/, the Ninth Circuit was particularly concerned about the
reliability of proffered expert testimony based upon research which is
not independent of the litigation. The court stated:

    "... experts whose findings flow from existing research are less
    likely to have been biased toward a particular conclusion by the
    promise of enumeration; when an expert prepares reports and findings
    before being hired as a witness, that record will limit the degree
    to which he can tailor his testimony to serve a parties'
    interest".... [t]estimony proffered by an expert [that] is based
    directly on legitimate, preexisting research unrelated to the
    litigation provides a most persuasive basis for concluding that the
    opinions he expresses were derived by the scientific method.
    /Daubert II/ at 1317

The first prong of Rule 702 will also be satisfied, in the absence of
research independent of the litigation, if the proffered expert
testimony is based upon research subjected to peer review. In other
words, "the experts must explain precisely how they went about reaching
their conclusion and point to some objective source - a learned
treatise, the policy statement of a professional association, a
published article in a reputable scientific journal or the like - to
show that they have followed the scientific method..." The court
concluded that proffered testimony of plaintiff's expert in that case
was nothing more than "unadorn assertions that the
methodology...employed comports with standard scientific procedures."
/Id/. at 1319.

The /Daubert I/ decision has created a virtual cottage industry among
members of the legal community analyzing its meaning and the impact of
that decision upon the admissibility of expert testimony, scientific and
otherwise, in the federal judiciary. A large number of court decisions
have also discussed /Daubert/.[22] The Tenth Circuit, the circuit in
which this matter arose, addressed the /Daubert/ issue in /Compton v.
Subaru of America Inc./ 82 F.2d 1513 (1996). In Compton, a products
liability case, the court held that /Daubert/ applies only to _novel_
scientific testimony. The court stated:

    The language in /Daubert/ makes clear the factors outlined by the
    Court are applicable only when a proffered expert relies on some
    principle or methodology. In other words, application of the
    /Daubert/ factors is unwarranted in cases where expert testimony is
    based solely upon experience or training. /Id/

In those cases where the expert testimony is not based upon a
"methodology or technique", the Tenth Circuit, in its interpretation of
Federal Rule 702, "merely requires the trial court to make a preliminary
finding that proffered expert testimony is both relevant and reliable
while taking into account that the inquiry invisioned by Rule 702 is a
flexible one" /Id/ at 1519 citing /Daubert/ at 589-95. Thus, in the
Tenth Circuit, before applying /Daubert/'s nonexhaustive list of factors
when reviewing proffered expert testimony, it is necessary to first
determine whether the proffer is (1) scientific (2) novel and (3) based
upon a particular methodology or technique.[23]

It appears that the Tenth Circuit holds a minority view in its
application of /Daubert/. In a more recent case, /Watkins v. Telsmith
Inc./ 12 F.3d 984 (Sept. 1997), the Fifth Circuit faced the issue of
whether the /Compton/ analysis of /Daubert/ should apply in that
circuit. In /Watkins/, the proponent of the proffered expert testimony,
which had been rejected by the lower court on the basis of /Daubert/,
argued that the testimony was not novel and was based upon the witness'
experience. Thus, /Daubert/ should not apply. The court, noting that the
Seventh and Eight Circuits disagreed with /Compton/, /id/ at 989,[24]
stated:

    We cannot agree with the /Compton/ court's conclusion that /Daubert/
    only applies when "unique, untested or controversial methodologies
    or techniques" are relied on by the expert. /Daubert/ expressly
    denies that the the precepts of Rule 702 apply only to
    unconventional evidence. And while /Daubert/ dealt with expert
    scienti- fic evidence, the decision's focus on a standard of
    evidentiary reliability and the requirement that proposed expert
    testimony must be appropriately validated are criteria equally
    applicable to "technical, or other specialized knowledge...."

    Further, it seems exactly backwards that experts who purport to rely
    on general engineering principles and practical experience might
    escape screening by the district court simply by stating that their
    conclusions were not reached by any particular method or technique.
    The moral of this approach would be, the less factual support for an
    expert's opinion, the better. /Compton/'s view of the admissibility
    of expert evidence is untenable. /Id/ at 991 (citations omitted)

The court concluded that:

    Whether the expert would opine on economic valuation, advertising
    psychology, or engineering, application of the /Daubert/ factors is
    germane to evaluating whether the expert is a hired gun or a person
    whose opinion in the courtroom will withstand the same scrutiny that
    it would among his professional peers. /Id/ (citations omitted)

The Review Commission has not had the opportunity to discuss and/or
adopt either the apparent majority rule expressed by the Fifth Circuit
or the minority view of the Tenth Circuit regarding admissibility of
expert testimony. Thus, this Commission ALJ is without Commission
guidance regarding an obviously critical element of this case. I turn
now to an analysis of the expert testimony relating to the evolving
field of ergonomics proffered by the Secretary in light of /Daubert I/
and its progeny; (paraphrasing the Ninth Circuit) "mindful of my
position in the hierarchy of the federal judiciary, I take a deep breath
and proceed with this heady task." /Daubert II/ at 1316

The Secretary offered the expert testimony of Dr. Roy DeHart to
establish causation; that is, that injuries allegedly sustained by
employees were caused by conditions existing in Respondent's workplace
to which those employees were exposed. (Tr. 50, 97) Dr. DeHart is a
medical doctor specializing in occupational medicine and is also
experienced in matters involving "ergonomics"[25]. He possesses
impressive credentials and extensive experience in the field of
occupational medicine.(See Ex. C-625) Dr. DeHart testified that "work is
healthy" and "the fact that individuals are engaged in physical activity
in and of itself is healthy". (Tr. 5421) Indeed, he has prescribed
exercise for patients experiencing low back pain (Tr. 540). Under
certain circumstances, weight lifting is a "conditioning activity" (Tr.
5406) and torso bending as well as other "ergonomic stressors" could be
beneficial. (Tr. 5407) In this case, however, he supports the
Secretary's position that Respondent's employees were exposed to the
"increased risk of developing cumulative trauma disorders"[26] as
alleged in each instance cited by the Secretary. Dr. DeHart supports
this conclusion on the basis of his findings resulting from the
application of the "relative risk" statistical methodology.[27] The work
performed and the conclusions reached by Dr. DeHart and his colleagues
were not independent of this litigation nor were they based upon
preexisting research. Dr. DeHart's work product was created at the
behest of the Secretary of Labor specifically for this litigation.

The Secretary provided Dr. DeHart with records obtained from
Respondents' clinic which were received initially by a team of six
resident doctors and three faculty members at the University of Oklahoma
medical school to determine (1)whether injuries listed on the records
and identified by the team members as musculoskeletal injuries were
consistent with ergonomic stressors identified by the Secretary and (2)
whether a trend of injuries could be determined for each job activity
(Tr. 5190-91). The team also viewed the video taken by OSHA of the jobs
performed by employees and the ergonomic analysis prepared by Mr.
Besser. A data collection form was created for each job task recording
and assigning a letter designation for various degrees of severity of
injury.[28] A total of 333 records were reviewed and for each stressor
identified as job related, a rating code was developed to determine the
likelihood that an injury was caused by said stressor. A zero rating
indicated no relationship between the stressor and a reported injury;
"1" indicated a 25% relationship; "2" meant as 25-50% relationship; "3"
a 50-75% relationship and "4" a 75-100% relationship between exposure to
a stressor and an injury. (Tr. 5150-51). The Secretary, in her brief,
describes the methodology applied by Dr. DeHart as follows:

    Once Dr. DeHart identified the number of injuries that met the
    criteria that had been established - that is, musculoskeletal
    injuries that resulted in some kind of limitation or lost work time,
    than a calculation was made to determine what the rate of injury was
    for that particular work activity or task. (Tr. 5212). Since the
    period of review of the medical records was 1989 to August 1993, a
    time period of 4.66 years was used in the calculation. (Tr. 5198).
    The next step in the incidence rates calculation was to multiply the
    time period reviewed by the number of employees assigned to a
    particular job task. That result was then divided by the number of
    injuries/illnesses that were found which determined the rate of
    injury per year that individuals in those job tasks were being
    exposed to. The amount found was then multiplied by one hundred in
    order to ascertain the rate per one hundred employees per year. (Tr.
    5197). The time period of 4.66 years was used consistently for all
    incident rate calculations. The numbers of employees varied with
    each job. The number of injuries would also vary by job task. (Tr.
    5198, C-972). This analysis was performed for each of the job tasks.
    (Tr. 5217) Secretary's brief p. 21, footnote excluded)

Having determined an "incident rate" of injury within Respondent's plant
of each relevant job task, Dr. DeHart performed a comparison between
that rate (musculoskeletal injury rate) with the incident rates
experienced by the tire industry in general as reported by the Bureau of
Labor Statistics (Tr. 5216). DeHart described this comparative analysis
methodology as a "relative risk" approach (Tr. 5160-70). Complainant
describes the "relative risk" approach as follows:

    Relative risk, also know as ratio analysis, is a mathematical
    calculation and common approach for comparing data which is
    generally accepted within the field of occupational medicine. (Tr.
    5141, 5225-26). There are recognized techniques which would be
    present in any basic biostatistics book, more commonly in
    epidemiological textbooks, and in many occupational medicine
    textbooks. (Tr. 5143). Calculating the relative risk determines
    whether or not the incident rate is higher for the population group
    being studied as compared to another standard.

    The reliability of a relative risk ratio, such as was used here, is
    based on data that is used to determine the incident rate. The
    reliability of the association increases as the calculation exceeds
    1 in terms of the risk ratio. As the relative risk ratio exceeds 1,
    an association between the causative agent and the injury, here the
    musculoskeletal injuries and the ergonomic stressors present in the
    job task, is established. (Tr.5274).

    A confidence interval is a method of providing some statistical
    assessment of the data. It is a way to assign some degree of
    confidence in the comparison of the data between the two data sets.
    In this case, application of a confidence interval was not
    appropriate because the data set were not the same since the
    Department of Labor figures include all injuries and illnesses and
    the Dayton Tire data includes only those injuries that are
    classified as musculoskeletal. (Tr. 5277-78). In this instance, the
    degree of confidence for the overall population increases as the
    pattern of injuries build across the group being studied. (Tr.
    5161). (Complainant's Brief pages 22,23).

The Secretary asserts that the methodology utilized by Dr. DeHart is
"accepted in his field" (Secretary's brief pg. 23) and, therefor, his
findings are reliable. Despite the urging of this Administrative Law
Judge that the parties should discuss expert testimony in light of the
/Daubert I/ decision, /supra/, the Secretary declined to provide that
analysis. It is apparent that the Secretary is relying upon the "general
acceptance" test /Frye v. United States/, /supra/., to support the
proferred expert testimony of Dr. DeHart, (Secretary's brief pgs. 17-23).

Respondent on the other hand, provided a detailed attack upon Dr.
DeHart's testimony in relation to /Daubert I/. First, Respondent asserts
that Dr. DeHart's findings were generated specifically for this
litigation and were not validated by any objective, independent analysis
or source /see Daubert I/ at 1317-19. Second, although the so called
relative risk analysis does not appear to be a generally accepted
methodology for establishing causation see Tr. 5438-40, 5433-35, 5439-
40, the most that can be expected from Dr. DeHart's work is that it is
hypothesis generating rather than hypothesis proving Tr. 6760
(Respondent's brief pg. 22). Thus, argues Respondent, DeHart's study
proves nothing about the alleged relationship between stressors and
injuries at Respondent's plant. Third, DeHart's work is subject to
"ecological fallacy" because crucial individualized data was not
collected (Tr. 5436-38). Respondent explains this fallacy as follows:

    "[DeHart] studied a population in the aggregate and made no effort
    to eliminate or account for confounding factors that might have
    affected risk or the development of injury. Ex. 2 at 5428-29.
    Confounding factors contribute to "bias," or inaccuracy (Ex. 2 at
    5446) in an epidemiological study. Ex. 2 at 5450-51. For example,
    some of the non-ergonomic factors that can contribute to an injury
    that appears at first to be ergonomically-related are gender, age,
    obesity, psychosocial factors, height, strength, other physical
    conditioning, heredity, arthritis, bursitis, pregnancy, gout,
    diabetes and prior injuries. Ex. 2 at 5410-12. Dr. DeHart did not
    control for any of these factors in his study. Ex. 2 at 5412.
    Another type of confounding factor is off-the-job activities that
    might contribute to an injury that appears at first to be job-
    related. Some of these are sports, hobbies, housework and yard work.
    Ex. 2 at 5412. Dr. DeHart was not able to account for these factors
    in his analysis of apparently job related injuries at Dayton. Ex. 2
    at 5412- 13." (Respondent's brief pg. 22-23)

Because Dr. DeHart failed to account for confounding factors, his study
and conclusions do nothing more than raise a "red flag" that injuries
may be work related (Tr. 5892-94). Moreover, DeHart assumed that all
injuries reported by Respondent's employees were job related (Tr. 5494).
Respondent also argues that Dr. DeHart's comparison of his findings with
a study published by the Bureau of Labor Statistics is meaningless
because "the time frames for the two data sets were different; the types
of injuries represented in the two data sets were different and even the
types of jobs encompassed within the two data sets were different (Tr.
5569-70) (Respondent's brief pg. 24). Dr. DeHart acknowledged that the
comparison was the equivalent of comparing apples to a fruit basket
without knowing whether any apples are in the basket (Tr. 5577).
Respondent also attacks the reliability of the information contained in
the records reviewed by Dr. DeHart which forms the basis for his
conclusions. Respondent points to the following "admissions" by Dr. DeHart:

 1. The medical records were incomplete. (Tr. 5390)

 2. The records did not contain, among other things, complete medical
    histories. (Tr. 5390)

 3. The records lacked information relating to the employee's personal
    characteristics. (Tr. 5390)

 4. The records lacked information relating to any physical examination
    of the employee. (Tr. 5390)

 5. The records lacked information relating to the onset of symptoms
    reported in the records. (Tr. 5390)

 6. The individual records did not provide sufficient information that,
    if Dr. DeHart had been the treating physician, he would have felt
    comfortable making a diagnosis. (Tr. 5390)

 7. The records did not provide the information necessary to determine
    whether an employee's reported injury was ergonomically related.
    (Tr. 5391)

 8. Dr. DeHart accepted the information in the medical records at face
    value, and never attempted to independently confirm the information
    contained in any medical record. (Tr. 5391)

 9. The information contained in the medical records was inadequate with
    reference to history of, or occurrence of, injuries. (Tr. 5391-93)

10. With respect to the vast majority of the medical records reviewed,
    Dr. DeHart was unable to determine even whether the reported injury
    was job related. (Tr. 5395-96)

11. With respect to the majority of records, Dr. DeHart was unable to
    determine the degree to which biomechanical, job-related factors
    contributed to a govern injury, and the degree to which any other
    factors contributed to that injury. (Tr. 5396)

12. The information in the medical records was so incomplete that Dr.
    DeHart could not rule out preexisting conditions as the cause of the
    reported injury. (Tr. 5396)

13. The information in the medical records was so incomplete the Dr.
    DeHart could not rule out prior injury as the cause of the reported
    injury. (Tr. 5396)

14. The information in the medical records was so incomplete that Dr.
    DeHart could not rule out non- occupational factors as the cause of
    the reported injury. (Tr. 5396)

15. The medical records did not provide sufficient information to allow
    a full medical assessment and diagnosis, which is necessary to
    assess the "ergonomic-relatedness" of an employee medical complaint.
    (Tr. 5399-5400)

16. For the majority of the medical complaints reflected in the records,
    Dr. DeHart was simply unable to determine the etiology, or cause, of
    the complaint. (Tr. 5455-56) (Respondent's brief pgs. 25-26) 

Thus, argues Respondent, the records reviewed by Dr. DeHart lack
sufficient detail to rule out preexisting conditions, prior injuries or
other non-occupational factors that may have caused the malady described
by each of Respondent's employees.

Respondent cites /Casey v. Ohio Medical Products/ 877 F. Supp. 1380
(1995); /Viterbo v. Dow Chemical Co./ 826 F.2d 420 (1987) and /Carroll
v. Litton Systems, Inc./ 1990 U.S. Dist. LEXIS 16833 (W.D.N.C. 1990) for
the proposition that incomplete medical records, as in this case, are an
insufficient basis for establishing causation.

The second expert witness called by the Secretary, Lawrence Shulze,
holds a Ph. D from Texas A&M University in Industrial Engineering. He
also has an extensive background, both educational and work experience,
in the field of ergonomics. As previously stated, the Secretary offered
the testimony of Dr. Shulze to verify ergonomic stressors identified at
Respondent's workplace and injuries that are likely to be sustained by
employees exposed to those stressors. Shulze also suggested equipment
and procedures for abating the violations alleged by the Secretary.

Dr. Shulze utilized the "observational method" to identify ergonomic
stressors to which Respondent's employees were exposed. As with Dr.
DeHart, the work performed by Dr. Shulze was at the request of the
Secretary for this litigation. Essentially, the observational method
involves observing the work processes at Respondent's plant and the
manner in which employees perform their tasks. The Secretary describes
the work performed by Dr. Shulze in this case as follows:

    During his plant entry, he observed and videotaped each job;
    determined what tools were used; measured forces, noise, weights,
    heights and distances; and documented the tasks with photographs.
    (Tr. 1460, 1465). Dr. Schulze completed his analysis by analyzing
    the video footage and the data he had collected of each job task.
    With this information, he created an operation process chart to
    determine what percentage of time the employees spent in their
    activities, identified risk factors and ergonomic problem areas,
    made abatement recommendations, and then formulated a written
    report. (Tr. 1460). (Secretary's brief pg. 11)

The Secretary asserts that the methodology utilized by Dr. Schulze is
"widely used and generally accepted within the field of ergonomics"
(Secretary's brief pg. 12). It appears that the Secretary is relying
upon the educational background and work experience of Dr. Schulze as
well as the "general acceptance" of the observational method to
establish the reliability of his testimony.

Respondent on the other hand, strenuously argues that the "observational
method" is nothing more than the personal opinions of an individual
based upon observance of an event. Respondent cites /O'Connor v.
Commonwealth Edison Co./ 13 F.3d 1090, 1106-07 (7th Cir.) Cert. denied
114 S.Ct. 2711(1994) for the proposition that personal observation is
not a proper basis for expert scientific testimony. Indeed, in this case
three individuals observed the same work activities either in person
(Schulze) or by video (Besser and DeHart) and, according to Respondent,
the testimony of these individuals regarding their observations is
remarkable because of their dissimilarities. In its brief, Respondent
lists seventeen pages of "dissimilarities" in the testimony of Schulze,
DeHart and Besser based upon their perception of the work activities.
(Appendix B of Respondent's brief). Respondent argues that Dr. Schulze
engaged in a casual visual inspection of the work areas because it was
"least intrusive" and seeks to legitimize the procedure by
characterizing it as the observational method. Moreover, according to
Respondent, the personal observations of Dr. Schulze cannot be
established as accurate or reliable as required under Rule 702 FRE or
/Daubert I/ /supra/ (Respondent's Reply Brief pgs. 8- 9).

The first step in the analysis is to determine whether the testimony
offered by DeHart and Schulze constitutes scientific testimony within
the meaning of Rule 702 FRE as alleged by Complainant. The substance of
the proferred expert testimony is that ergonomic stressors[29] exist in
Respondent's plant (Schulze) and those stressors are causing or likely
to cause employee injuries (DeHart). Both witnesses assert that their
testimony relates to a scientific endeavor known as ergonomics.
Ergonomics was defined by Dr. Schulze as:

    "the evaluation, design and/or redesign of facilities, work
    stations, work areas, job tasks, to accommodate the work to the
    worker, rather than having the worker have to accommodate to the
    work environment, the work station, tools in the work area" (Tr.
    1398).[30]

According to Schulze the study of occupational related diseases has been
a documented concept "from Ramazzini in the 1700's" (Tr. 1399).[31] Both
witnesses agree that ergonomics is a science. Since the weight of the
evidence in the record supports the conclusion that ergonomics is a
science and there is no evidence to the contrary, the proferred
testimony of Schulze and DeHart satisfy the requirement of Rule 702 for
expert opinions of a scientific nature.

As noted previously, the Tenth Circuit Court of Appeals has taken the
position that /Daubert I/, /supra/, applies only to /novel/ scientific
testimony. /Compton v. Subaru of America/, /supra/. Thus, the second
step in the analysis is to determine whether the testimony offered by
Schulze and DeHart is "novel." The concept of "ergonomics" is not new;
however, it is a new phenomenon in the enforcement scheme of the
Occupational Safety and Health Act. There is no standard governing
employee exposure to ergonomic stressors and only one Review Commission
case relating to alleged general duty clause violations for employee
exposure to ergonomic stressors, /Pepperidge Farm/, /supra/. Moreover,
no cases have been found which discuss the likely injuries to be
sustained by long periods of standing, elevated and extended reaches,
awkward postures, torso flexions, frequent lifting, twisting, static
posture and the myriad other ergonomic stressors contained in the
citation issued to Respondent. There can be no doubt that these issues
are clearly "novel" to the enforcement of occupational safety and health
under the Act.

Since the proferred testimony of Schulze and DeHart directly relate to
the novel issues raised by Complainant's citation, the analysis of their
expert testimony must be made in accordance with /Daubert I supra; see
Compton supra/. As noted above, the /methodology/ utilized by an expert
witness must be analyzed to determine the "reliability" of the opinion
expressed by the expert. Evidentiary reliability, according to the
Supreme Court, means trustworthiness. In a case involving scientific
evidence, "/evidentiary reliability/ will be based upon /scientific
validity/" /Daubert I/ footnote 9 at 2795 (Emphasis in original). There
is a distinction between /scientific validity/, which refers to the
ability of a scientific test to measure what it purports to measure, and
/scientific reliability/, which refers to the ability of a scientific
test to obtain consistent results /see Black, A Unified Theory of
Scientific Evidence/ 56 Ford. L. Rev. 595, 599 (1988), referenced by
/Daubert I id./ Thus, the issue is not what conclusion was reached by
the expert but /how/ the conclusion was reached. Accordingly, the
"general observations" offered by the Supreme Court, /supra/, must be
applied to test the scientific methodologies utilized by Schulze and
DeHart.

First, are the "observational method" (Schulze) and the "relative risk"
method (DeHart) testable and has either method been tested specifically
as applied to this case? Notwithstanding the self-serving statements of
both witnesses that the techniques which they used produce accurate
results, there is nothing in this record to verify that the techniques
are "testable" or that they have been "tested" for purposes of this
litigation; that is, it has not been established that the techniques are
scientifically valid by measuring what they purport to measure in this
case. Moreover, there is insufficient evidence to support the conclusion
that the methodologies are scientifically _reliable_; that is, that the
tests, if applied by other qualified scientists, will obtain
_consistent_ results. Second, there is no evidence in this record that
either technique has been subjected to peer review and/or publication
for purposes of establishing that the alleged "ergonomic stressors"
alleged by the Secretary are, in fact, "stressors"or, whether and under
what conditions said stressors are likely to cause injury. Third, both
Schulze and DeHart testified that they did not calculate an "error rate"
for their conclusions or, indeed, that it is possible to calculate an
error rate. Thus, there is no way to calculate the probability that some
or all of their conclusions may be inaccurate other than to accept,
without question, that what they have to say is totally accurate.

Fourth, both witnesses maintain that the techniques which they utilized
are "generally accepted" within their respective scientific community.
Dr. Schulze insists that the "observational method" which he employed is
generally accepted within the ergonomic community for identifying
stressors. The Courts however, have been unwilling to accept the
observational method, without anything more, as a reliable method for
establishing scientific fact. /See: Deimer v. Cincinnati Subzero
Products, Inc./, 58 F.3d 341 (7th Cir. 1994); /O'Connor v. Commonwealth
Edison Co./, 13 F.3d 1090 Cert. Denied 114 S.Ct. At 27 (1994); /Wintz v.
Northrop Corp. et al/ 1995 WL 758 114 (ND Ill.). Thus, general
acceptance of the observational method "/ipse dixit/" is not a
sufficient basis for establishing scientific fact in this case.

With respect to the "relative risk" method, Dr. DeHart conceded that his
evaluation has major flaws:

    *JUDGE YETMAN:* Doctor, of what value is your study? Without trying
    to diminish your work here, but I have to put this in some sort of
    context. Of what value are your findings in terms of determining
    whether there are specific violations at the Dayton Tire plant?

    *THE WITNESS:* What we have attempted to show is the number of
    work-related injuries per category, and we have used as a comparison
    base the overall tire industry experience. There are two major
    flaws, one of which has been pointed out, that we do not have a
    comparison with the direct job.

    The second major flaw is that we are comparing data that includes
    all illnesses and all injuries to just those related to
    musculoskeletal injuries. What it should provide, though, is some
    indication of the degree of injury that is occurring in the plant.

    *JUDGE YETMAN:* Okay. Getting back to my understanding of what value
    your information [is] to me or, indeed, to the Respondent, it is to
    present a red flag to the Respondent that something may be wrong
    with these various work activities that must be looked at.

    *THE WITNESS:* As you indicated yesterday.

    *JUDGE YETMAN:* You agree with that?

    *THE WITNESS:* Yes. (Tr. 5578-79)

Thus, with at least two "major flaws" in the methodology utilized by
DeHart, it cannot be reasonably argued that an acknowledged flawed
analysis is "generally accepted" within the field of occupational
medicine. Moreover, Dr. DeHart's agreement that his study provides
nothing more than a "red flag" that "something may be wrong" with the
work activities cited by the Secretary is an insufficient basis to
conclude that injury causing hazards exist at Respondent's worksite. As
stated by the Supreme Court, "[c]onjectures that are probably wrong are
of little use...in the project of reaching a quick, final and binding
legal judgment..." /Daubert I/ /supra/ at 2800. For these reasons it is
concluded that neither the observational method nor the relative risk
method, as applied in this case, are generally accepted scientific
methodologies. Moreover, based upon the demeanor of both witnesses at
trial, the admonition of the Ninth Circuit in /Daubert II/ /supra/ at
1317 that "testimony proferred by an expert [that] is based directly on
legitimate, preexisting research unrelated to the litigation provides
the most persuasive basis for concluding that the opinions he expresses
were derived by the scientific method" is particularly applicable here.
Neither witness presented any independent corroborating evidence of any
nature to support their conclusions.

For the foregoing reasons it is concluded that the methodologies
utilized by Drs. Schulze and DeHart fail to meet the minimal
requirements for evidentiary reliability when tested in accordance with
/Daubert I/. Thus, any evidence offered with respect to the conclusions
reached by the witnesses based upon those methodologies is inadmissable
pursuant to Rule 702 FRE. Accordingly, that testimony is stricken from
the record.[32] This is not to say, however, that the testimony of those
individuals that is not specific to this case but is based upon their
general professional knowledge in their respective fields is not
admissible. To the contrary the general description of matters relating
to the fields of ergonomics and occupational medicine is admissible and
reliable.[33]

*_STIPULATIONS_*

On September 28, 1995, the parties submitted the following joint
stipulations:

 1. As a result of an OSHA inspection, Respondent Dayton Tire was issued
    a citation under Section 5(a)(1) of the Occupational Safety and
    Health Act alleging ergonomic hazards at its worksite located at
    2500 South Council Road, Oklahoma City, Oklahoma.

 2. The total penalty proposed by the Secretary of Labor as a result of
    the alleged violations contained in the ergonomic citation is $5,000.00.

 3. Jurisdiction of this proceeding is conferred upon the Occupational
    Safety and Health Review Commission.

 4. Dayton Tire is an employer engaged in a business affecting commerce
    within the meaning of Section 3(5) of the Occupational Safety and
    Health Act of 1970, 29 U.S.C. § 652(5).

 5. None of the ergonomic hazards identified in the citation is likely
    to cause death.

 6. Compliance officers Carlos Reynolds and Faye Kearney did not measure
    the muscular force exerted by Dayton Tire employees at any time
    during their visit to the Dayton Tire facility.

 7. Compliance officers Carlos Reynolds and Faye Kearney did not measure
    the torso flexion of Dayton Tire employees at any time during their
    visit to the Dayton Tire facility.

 8. Compliance officers Carlos Reynolds and Faye Kearney did not
    calculate the ulnar deviation of Dayton Tire employees at any time
    during their visit to the Dayton Tire facility.

 9. Compliance officers Carlos Reynolds and Faye Kearney did not
    calculate the wrist flexion or extension of Dayton Tire employees at
    any time during their visit to the Dayton Tire facility.

10. Compliance officers Carlos Reynolds and Faye Kearney did not
    calculate the shoulder flexion or abduction of Dayton Tire employees
    at any time during their visit to the Dayton Tire facility.

11. Compliance officers Carlos Reynolds and Faye Kearney did not
    calculate the forearm pronation or supination of Dayton Tire
    employees at any time during their visit to the Dayton Tire facility.

12. Compliance officers Carlos Reynolds and Faye Kearney did not measure
    the force used in "forceful finger exertions" by Dayton Tire
    employees at any time during their visit to the Dayton Tire facility.

13. Compliance officers Carlos Reynolds and Faye Kearney did not measure
    the "increased compressive force" exerted by Dayton Tire employees
    at any time during their visit to the Dayton Tire facility.

14. Compliance officers Carlos Reynolds and Faye Kearney did not
    calculate the "static posture times" of Dayton Tire employees at any
    time during their visit to the Dayton Tire facility.

15. At the time the Secretary issued the Citation in this case, there
    were no incidents of heat stroke documented in Dayton's OSHA 200
    logs for the year 1993.

16. Mr. Besser has never visited the Dayton Tire facility.

17. Compliance officers Faye Kearney and Carlos Reynolds did not
    videotape employees in the cited jobs for a full eight hour shift.

18. The wet bulb globe thermometer used by the compliance officers to
    measure heat stress conditions was overdue for calibration at the
    time of the measurements.

19. The compliance officers did not place their wet bulb globe
    thermometer on a tripod while taking measurements. 

*_DISCUSSION_*

In the /Pepperidge Farm/ case, /supra/, the Review Commission considered
the application of § 5(a)(1) to alleged ergonomic violations for the
first time. In addition to multiple recordkeeping violations,
/Pepperidge/ was cited under the general duty clause for exposing its
employees to both lifting and repetitive motion hazards.[34] The
Commission analyzed each of these allegations under well-established
principles of § 5(a)(1) doctrine. A general duty clause violation exists
where the Secretary has established that: (1) a condition or activity in
the employer's workplace presents a hazard to employees, (2) the cited
employer or the employer's industry recognizes that hazard, (3) the
hazard is causing or likely to cause death or serious physical harm, and
(4) feasible means exist to eliminate or materially reduce the hazard.
/General Dynamics Land Systems Div., Inc./, 15 BNA OSHC 1275, 1280,
1991-93 CCH OSHD ¶ 29,467 (No. 83-1293, 1991), /aff'd without published
opinion/, 985 F.2d 560 (6th Cir. 1993).

*_I. Existence of a Hazard_*

According to the Commission, the first prong of a § 5(a)(1) analysis -
the existence of a hazard - turns on two factors: actual or potential
physical harm, and a sufficient causal connection between that harm and
the workplace. /Pepperidge Farm/ at 2014. Here, the Secretary contends
that Dayton employees suffered from a significant number of injuries,
all of which she claims can be considered cumulative trauma disorders
and can be attributed to work activities at the Dayton plant. Having
submitted only three employee medical records into evidence, the
Secretary bases her allegations of injury largely upon the testimony of
the thirty-one Dayton employees called as witnesses at the hearing to
testify as to the thirteen instances of violation remaining in issue, as
well as Dr. DeHart's analysis of over 300 employee medical records
covering the period from 1989 and 1993.[35] The Secretary also relies
upon nine accident analysis files and fourteen workers compensation
records to document employee injury.[36] In addition to these sources,
the testimony of the four Dayton plant doctors who treated employees at
the onsite clinic during the period in question, as well as Dayton's
OSHA 200 logs, are equally relevant. As discussed /supra/, in terms of
causation, the Secretary has indicated that her case rests largely on
the shoulders of Dr. DeHart, but to the extent that his testimony is
relevant to proving potential harm, also relies upon Dr. Schulze.

Although Dayton indicates in its post-hearing brief that medical records
would be the "best evidence" of the employees' medical conditions, the
company does not dispute that the employee injuries alleged by the
Secretary actually occurred (Dayton's Post-Hearing Brief at 17).
However, Dayton strongly contests the Secretary's claim that any of the
injuries sustained by plant employees were caused by the work activities
alleged in the citation to be stressors. Like /Pepperidge Farm/,
/Dayton/ also argues that the Secretary has failed to define the alleged
hazard in a way that "apprises the employer of its obligations, and
identifies conditions or practices over which the employer can
reasonably be expected to exercise control." /Pelron Corp./, 12 BNA OSHC
1833, 1835, 1986-87 CCH OSHD ¶ 27,605 (No. 82-388, 1986). Citing to
/Kastalon, Inc./, 12 BNA OSHC 1928, 1986-87 CCH OSHD ¶ 27,643 (No.
79-3561, 1986) ("/Kastalon/"), /Dayton/ claims that the Secretary has
been unable to establish the point at which each work activity presents
a hazard to employees.

These arguments, as well as those raised by the Secretary, are
considered in detail below with regard to each instance of violation.

*_Instance A - Belt Loaders_*

The following prefatory language applicable to all of the alleged
instances of violation appears above the first instance of violation:

    Section 5(a)(1) of the Occupational Safety and Health Act of 1970:
    The employer did not furnish employment and a place of employment
    which were free from recognized hazards that were causing or likely
    to cause death or serious physical harm to employees in that
    employees were exposed to an increased risk of developing Cumulative
    Trauma Disorders from tasks that they were performing and
    engineering and administrative controls were not implemented.

Under Instance A, the citation states in relevant part:

    A) Department #112 - Compounding and Mixing; belt loader(s) loading
    a feed belt and monitoring Banbury control panel were exposed to
    cumulative trauma disorders involving ergonomic stressors such as
    frequent lifting, elevated and extended reaches, and long periods of
    standing.

Two employees testified in connection with this instance: Sang Van
Nguyen (Tr. 4266-4318); and Michael Keith Willard (Tr. 4319-43). Belt
loaders are primarily responsible for loading specified amounts of
natural and synthetic rubber, pigment, and scrap rubber, known as "TMA",
onto a conveyor belt which leads into a mixer (Tr. 4271, 4277-78, 4309,
4327, 4339-40; Exhibit C- 962, Segment starts 00:00:12).[37] Tools used
by a belt loader include a knife used to cut various materials and a
large hook used to carry materials to the conveyor belt (Tr. 4271-73,
4278- 79, 4307, 4322, 4327). In some cases, a cutting machine with a
large descending blade is used to cut bales of rubber (Tr. 4272,
4305-06). Once the conveyor belt is loaded, the belt loader uses a
computer to verify the weight of the materials, collectively known as a
"batch", and the materials are then processed into slab stock rubber
(Tr. 4306-07, 4325, 4340). Anywhere from 100 to 150 batches are run per
8-hour shift (Tr. 4272-73, 4286-87, 4334-35). Other duties performed by
belt loaders include cleaning up around their work area and performing
"remills", which involves running certain stocks of slab rubber through
the machine a second time (Tr. 4340-43).

According to Mr. Willard, 90% of the belt loader job is lifting and
loading stock (Tr. 4343). The belt loader lifts bales of rubber weighing
approximately 75 pounds from a pallet onto the conveyor belt and each
batch requires between eight to twelve bales (Tr. 4270-72, 4282,
4323-24, 4334-35). Although a lifting device known as a "strong arm" is
available to assist with this task, both employee witnesses indicated
that the device frequently malfunctions (Tr. 4273, 4276, 4328-29, 4332,
4338-39). As a result, Mr. Willard rarely uses the strong arm to lift
rubber bales (Tr. 4332). In addition, the strong arm is only capable of
lifting 120 pounds; thus, when the bales of rubber stick together, as
they often do on hot days, their combined weight exceeds the capacity of
the strong arm (Tr. 4274-75, 4280). On such occasions, Mr. Nguyen
indicated that he would locate someone to help him lift the rubber onto
the belt (Tr. 4275-76). Mr. Willard testified, however, that he worked
by himself approximately 75% of the time (Tr. 4325-26). Additional
materials lifted by belt loaders include the TMA, which ranges in weight
from five to as much as fifty pounds if it sticks together, and bags of
pigment, which weigh anywhere between five ounces to fifty pounds (Tr.
4278-79, 4309, 4340). For each batch of rubber produced, the belt loader
must reach up over his head to operate the computer control panel (Tr.
4286, 4303). Belt loaders must also reach to remove the bales of rubber
from stacks piled as high as four to five feet (Tr. 4282-84, 4331). All
of the belt loader's duties are performed while standing on a concrete
floor, but in between batches there might be an opportunity to sit down
for a few seconds (Tr. 4280-81, 4333).

Mr. Nguyen, who worked as a belt loader for an unspecified period of
time in 1993, testified that in June of that year, he reported to his
supervisor that he was experiencing a tingling in his left arm (Tr.
4289-91).[38] Over the course of several days, he was seen by a doctor
at Dayton's onsite clinic and referred to an offsite physician, both of
whom prescribed medication to relieve his symptoms. He was also assigned
to light duty work (Tr. 4290-93). Still experiencing pain, Mr. Nguyen
visited his personal physician and was ultimately diagnosed with carpal
tunnel syndrome (Tr. 4293-94, 4311-12). He subsequently underwent
surgery which apparently relieved the tingling in his fingers, but his
wrist and arm remained painful (Tr. 4295-96).

Mr. Willard testified that while working as a tire builder in 1989 at
the Dayton plant, he developed bursitis in his right shoulder (Tr.
4336-37, 4341). In his four years as a belt loader, he indicated that he
had "no problems" with his shoulder, but sometimes felt pain or
discomfort which he never reported to his supervisor (Tr. 4328, 4336).[39]

Because the citation mirrors his report, Besser identified frequent
lifts, elevated and extended reaches, and long periods of standing, as
the ergonomic stressors associated with the belt loader job (Tr.
6044-45; Exhibit R-5586 at 8). However, he found that the primary
stressors of this job are those associated with the lifting of rubber
bales (Tr. 6044). Using the formula found in the 1981 version of the
NIOSH lifting guidelines, Besser determined that the load of this lift
exceeds the calculated action limit and is consistent with the
development of low back injury (Tr. 6044-45; Exhibit R-5586 at 10). He
indicated, however, that the frequency component of his lifting analysis
was omitted because he could not determine from the information Kearney
provided to him how often the belt loaders performed this lift manually
versus mechanically with the strong arm (Tr. 5838- 40, 6043, 6249-50;
Exhibit R-5586 at 9). [40]

None of the plant doctors testified as to any specific injuries suffered
by belt loaders. Dr. Parrish mentioned the job only to note that Dayton
has twice reduced the size of the rubber bales, from 250 pounds down to
the current weight of 70 to 75 pounds, in order to address the
difficulty some employees were having in lifting them (Tr. 4856-58).

As evidence of actual injury, the Secretary relies upon Mr. Nguyen's
testimony that he was diagnosed with carpal tunnel syndrome (Tr.
4293-94, 4311-12; Secretary's Brief at 43-44). Although I found Mr.
Nguyen to be a credible witness, without underlying documentation to
support his claims, it is impossible to determine whether an accurate
diagnosis was made such that his injury may be properly considered as
proof of harm in the context alleged here. As indicated /supra/, carpal
tunnel syndrome is defined as "impaired conductivity" or a slowing of
the wrist's median nerve (Tr. 6764; Exhibit R-5696). This impairment can
be reliably measured through the use of electrodiagnostic testing, which
monitors the time it takes for electrical activity, administered as
shocks, to travel along the median nerve (Tr. 6764-65). Indeed, in the
/Pepperidge Farm/ case, the Commission based its finding of actual
injury largely upon the results of such testing and the associated
treatments, all of which was well-documented in the employee medical
records in evidence there.[41]

Here, Mr. Nguyen's condition does not appear in Dayton's OSHA 200 log
for 1993 or any of the few medical records, accident analysis files, or
workers compensation records submitted into evidence. He did testify,
however, that he was sent to a doctor "to test the nerve
and...neurology"; as he described it, the doctor "tap[ped] the nerves on
my arm so he find out if got [sic] carpal tunnel" (Tr. 4290). While this
suggests that Mr. Nguyen was, in fact, subjected to electrodiagnostic
testing, particularly where such testing is also known as "nerve
conduction" and is typically performed by a neurologist, there is
nothing in the record to confirm that a medical professional judged Mr.
Nguyen's test results to be abnormal (Tr. 4717, 4720). Accordingly, I am
not persuaded, on the basis of his testimony alone, that this injury can
reliably be considered proof of the harm alleged here by the Secretary.

In examining actual injury, the Commission in Pepperidge Farm not only
considered employee testimony and medical records, but also relied upon
the testimony of the plant's medical director, as well as a clinician
hired by the Secretary to review employee medical records and physically
examine some of the employees. Here, however, the plant doctors provided
no testimony whatsoever regarding specific belt loader injuries.[42]

Without proof of actual harm, the Secretary must establish a potential
for harm. Such an inquiry, as the Commission observed in /Pepperidge
Farm/ in its discussion of the Kastalon case, raises questions as to the
level of proof required to establish that the potential for harm exists.
In /Kastalon/, the Commission, relying upon the Supreme Court's decision
in /Industrial Union Dept. v. American Petroleum Inst./, 448 U.S. 607
(1980) ("/Benzene/"), noted that the Secretary must present "a body of
reputable scientific thought", such as epidemiological evidence, in
order to establish that a significant risk of harm exists under the
general duty clause.[43] /Pepperidge Farm/ at 2012-13. Although the
Commission stated in /Pepperidge Farm/ that certainty as to the
threshold level for injury has never been held to be a prerequisite to
regulation under § 5(a)(1), it specifically distinguished the
/Pepperidge Farm/ case from the /Kastalon/ case on the grounds that the
former dealt with allegations of actual injury, while the latter was
concerned with /potential/ injury. /Pepperidge Farm/ at 2012-13. Where,
as here, it has not been shown that /actual/ injury occurred,
determining the existence of a hazard hinges upon whether the Secretary
is able to quantify such a threshold.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent lifting, elevated and extended reaches, and long
periods of standing. There is no question that all of these activities
are part of a belt loader's daily work duties. Indeed, Dayton itself
acknowledges in its job evaluation form for the belt loader position
that bending, carrying, lifting, standing, stooping, and frequent
inspection of control panels, are all physical elements of this job
(Exhibit C- 666).[44]

In and of themselves, however, these activities are not hazardous. As
Dr. DeHart conceded, "work is healthy" and exposure to such activities
can actually be beneficial under certain circumstances (Tr. 5406-07,
5421, 5537). Thus, the Secretary maintains that it is the frequency or
repetition, and in some cases, the force, with which these tasks are
executed that transforms them from seemingly benign movements into
ergonomic "stressors" which can have an adverse affect on the body,
creating the potential for injury (Tr. 1438-39, 6399). In other words,
it is the length of time the employee stands, or the height and
frequency of the elevated reach, that poses the alleged hazard. As such,
proving the existence of the hazard alleged here requires the Secretary
to identify with some certainty the levels of force, frequency, and/or
repetition, at which injury becomes a possibility.

With regard to elevated and extended reaches, as well as long periods of
standing, none of the Secretary's witnesses were able to identify the
exact point at which these activities pose the potential for harm to
belt loader employees or indeed, that the activities, without
considering other factors such as age, gender, history of injury, or
lifestyle, will cause injury at all. There is nothing on this record
which adequately explains what makes these activities hazardous. It is
not enough to claim that the belt loader who has to raise his hands in
order to operate a strong arm will accumulate lactic acid in his arms,
thereby increasing his rate of fatigue, or that standing compresses the
disks between an employee's vertebrae in the lower back (Tr. 1533-34,
2356-57, 3280). Such statements not only fail to associate these
activities with specific injuries, but also fail to identify just how
long an employee must stand or hold up his hands before the potential
for harm develops.[45] In his report, Besser admitted that the potential
for harm resulting from the belt loader's activities cannot actually be
quantified: "It is difficult to determine the absolute number of
repetitions, or period of time that a posture can be maintained or an
activity performed, which will cause an injury." (Tr. 6164, 6271, 6399;
Exhibit R-5586 at 8). Three of the four Dayton plant doctors confirmed
that there is simply no "magic number" of repetitions or level of force
identifying the point at which injury will occur to an employee (Tr.
4410, 4546, 4612, 4628-29, 4632-33, 4810, 4824-25). As Dr. Smith-Horn
and Dr. Lundy indicated, an elevated or extended reach can be measured
in terms of its length or height, but neither doctor was able to
indicate how far or how high a reach an employee could safely perform
before the potential for injury arises (Tr. 4391-93, 4824-25).[46]

This weakness in the Secretary's case is best illustrated by the
inability of her witnesses to provide a consistent and specific answer
to the question: how long may an employee stand before the onset of
potential injury?[47] When asked what constitutes a long period of
standing, Besser's testimony was consistent with his report: "I'm not
sure there's any quantifiable time" (Tr. 6070). Among the plant doctors,
only Dr. Smith-Horn was asked to provide a definition for the phrase, a
question which prompted her to distinguish between a "long" and a
"prolonged" period of time. Based upon her experience, a long period of
standing is one that consists of 50% of an employee's time, while a
prolonged period is one that consists of over 80- 85% of an employee's
time (Tr. 4393). This opinion was not related in any way to the
likelihood of injury resulting from long or prolonged standing nor does
the opinion survive /Daubert/, /supra/. With no consensus on the record
regarding the point at which long periods of standing, or for that
matter, elevated and extended reaches, will pose a hazard to the belt
loader, the Secretary has failed to prove how these activities pose the
potential for harm. /Cf. Waldon/, 16 BNA at 1059 (hazard of HBV
transmission exists in cited nursing homes where studies of patient
infection rates coupled with work activities which provide the
opportunity for transmission establishes potential for harm to employees).

The final "stressor" alleged under this instance is frequent lifting. As
discussed /supra/, Besser concluded that the lifting of rubber bales by
the belt loaders constitutes an ergonomic stressor that increases their
risk of back injury. Even Dayton seems to have recognized this
possibility, indicating in its job evaluation form that a physical
demand of the job is "occasional strained position" and an "unavoidable
hazard" of the job is "strain or pull muscles" (Exhibit C-666).

The use of the NIOSH guidelines and the calculation of a recommended
weight limit suggest that the risk of harm from this particular task has
been, to some extent, quantified (Tr. 6033- 34). Indeed, one could
reasonably argue that the lifting equation and its accompanying
guidelines, as researched and promulgated by a respected, national
research organization, provide some measure or standard of when a lift
becomes hazardous (Tr. 4612-13, 5530, 5588-89). But Besser has cautioned
against treating the NIOSH guidelines as a permissible exposure limit
(Tr. 6311-13; Exhibit R-5674). Also, the record indicates that the
revised NIOSH guidelines have not yet been validated by an independent
study (Tr. 2529-34, 6314).

More importantly, it is the /frequency/ of the lift that is the focus of
this particular stressor and Besser had problems with this element in
his calculations. Because belt loaders have the option of using a strong
arm to lift rubber bales, no witness could be precise as to how many
times the lifts are performed manually versus mechanically (Tr. 3244,
6043). As indicated, Besser omitted the frequency component of his
lifting analysis because he lacked this information (Tr. 5838-40, 6043,
6249-50; Exhibit R-5586 at 9). Although the two belt loaders who
testified at the hearing stated that the strong arm frequently
malfunctions, no conclusion can be drawn from the evidence regarding the
frequency with which belt loaders as a whole are required to perform
lifts manually.

Finally, in addition to not being validated, the NIOSH guidelines cannot
account for the multitude of ways in which belt loaders may perform such
a lift. As Judge Frye observed in /Beverly/, "the nature of [a lifting]
hazard differs markedly from most hazards in that it does not involve a
danger presented to the worker by something outside of himself or
herself [but] [r]ather...involves a danger resulting from the worker's
own individual efforts." /Beverly/, slip op. at 13. Indeed, the elements
of either NIOSH calculation will vary from belt loader to belt loader,
the only true constant being the weight of the load.[48] Accordingly,
the Secretary has not established that the "frequent lifting" required
of a belt loader poses the potential for injury.

Even if the Secretary had established harm, actual or potential, the
record fails to support her claims of causation under this instance of
violation. In many cases, injuries that were attributed to the alleged
stressors of the belt loader job are not specific, diagnosed cumulative
trauma disorders, but are vague symptoms or conditions such as
generalized fatigue or reduction in arm strength (Tr. 1945-55, 4838-39,
6070-71, 6105). Even in those instances where diagnosed disorders have
been identified, the data linking these disorders to the work being
performed is seriously lacking. In Pepperidge Farm, the Commission
weighed several factors in its analysis of causation: the opinions of
the medical personnel who actually treated plant employees, the opinions
of the clinical experts who testified at the hearing, the injury
incidence rate at the plant, and the considerable epidemiological
evidence that was made part of that record. Pepperidge Farm at 2016-29.
Here, the Secretary presented no "expert clinicians" as witnesses at the
hearing and submitted no epidemiological evidence of the type reviewed
in /Pepperidge Farm/. Furthermore, there is no evidence linking the
activities labeled as ergonomic stressors under this instance to any
type of injury or harm suffered by belt loaders.[49]

Clouding the issue of causation even further is the fact that the record
indicates there are a multitude of non- occupational risk factors for
cumulative trauma disorders (Tr. 2618, 3529-31, 3537, 3541, 4414,
4509-11, 4615-18, 4630, 4634-35, 4676-77, 4728, 4779-80, 4836-38,
6901-02, 6989-93). As discussed /supra/, these factors include obesity,
age, gender, and pregnancy. An individual's medical history and personal
characteristics can also play a part in determining whether they will
develop a cumulative trauma disorder (Tr. 2219, 4614, 4728, 4779-80,
4783- 84, 4803-04, 4825). Having failed to account for such factors in
his analysis, Dr. DeHart was unable to identify the degree to which
occupational sources, as opposed to non-occupational ones, caused or
contributed to the injuries which he identified. /Cf. Pepperidge Farm/
at 2028-29 (based on record regarding causation, Commission concludes
that work was significant contributing factor to employees' actual
injuries).

For all of these reasons, the Secretary has failed to prove that any of
the work activities alleged under this instance of violation are
hazardous to the employees who perform them.

*_Instance B - Tuber Operators_*

Under this instance, the citation states in relevant part:

    B) Department #126 - Tubing; Tuber Operator(s) operating tubing
    machine(s), selecting and installing dies and preforms were exposed
    to cumulative trauma disorders involving ergonomic stressors such as
    frequent torso flexions, lifting from awkward postures, and long
    periods of standing and working in hot environments.

Three employees testified in connection with this instance: Steven
Bailey (Tr. 2967-94); William Howard Taft Jones (Tr. 3051- 73); and Bob
Dale Williams (Tr. 3828-66). Tuber operators are generally responsible
for overseeing the operation of the tubing machine, a job which includes
changing the machine's dies and preforms (Tr. 2973, 2979-80, 3068-70,
3836, 3840; Exhibit C-962, Segment starts 0:04:12). Tubing machines
produce either treads or sidewalls by extruding rubber through a die
which rests inside a steel preform. Each time that a new width of rubber
is to be run through the machine the die and its corresponding preform
must be changed (Tr. 2976, 2982, 3829-30). Preforms range in weight from
80 to 110 pounds (Tr. 2977, 3058, 3837, 3839).

In order to change the die, the tuber operator first releases the
preform, which is heated during processing, from the machine dropping it
onto an apron draped underneath (Tr. 2977, 2984, 3057, 3834-35, 3844,
3851). The tuber operator then carries the preform to a small work area
located several feet away at the top of a set of stairs where it is
cleaned and the die is removed. A new preform is then taken from a
heated cabinet known as a "hot box", the proper die placed inside, and
the preform carried back to the machine and installed (Tr. 2977- 79,
2990-91, 3057-58, 3836-40, 3851). The total number of changes made on a
tubing machine over the course of an 8-hour shift depends on the
material being processed and the length of the run (Tr. 2978, 3067-68,
3841-43). According to the testimony of the employee witnesses, a tubing
machine which produces treads requires approximately 10 to 13 changes
per shift, while a tubing machine which produces sidewall requires
approximately 16 to 18 changes per shift (Tr. 2978, 2992-93, 3058,
3841-43).

In order to release a preform and lift it from the apron, the tuber
operator must bend underneath the upper portion of the tubing machine
(Tr. 2977, 2980-81, 3058, 3830, 3835-36, 3838). According to two of the
employee witnesses, tuber operators are required to assume "awkward
positions" while working in this area of the machine (Tr. 3059, 3830,
3836-37). All of these duties are performed while standing on a concrete
floor (Tr. 2980, 2989, 3056, 3829, 3831). In addition, all three
employees indicated that their work environment can reach temperatures
as high as 120 degrees in the summer (Tr. 2973-74, 3056, 3830).

Mr. Williams, who has worked as a tuber operator since 1993, testified
that in that year, one of the onsite plant doctors diagnosed him with
severe tendinitis in his left elbow (Tr. 3845- 46). He previously
reported having problems with the same elbow in 1991 and 1992, the
latter of which he occasionally spent working as a tuber operator (Tr.
3847-48, 3862). Since his diagnosis, Mr. Williams has been treated with
cortisone shots, wears a brace, and was off work for about six months
(Tr. 3848- 49). About two months after returning to work, the left elbow
pain returned and worsened. At the hearing, he reported that both elbows
were painful (Tr. 3849, 3863). Mr. Williams testified that he has played
softball, performed significant projects on his house, and engaged in
regular weight lifting (Tr. 3856-61). In fact, he was encouraged by his
physician to continue weight lifting to strengthen his muscles (Tr. 3864).

Mr. Jones, who worked as a tuber operator in 1993, testified that
towards the end of his workday, he experienced lower back pain which he
reported to his supervisor, but chooses self- treatment with
over-the-counter medication rather than visit the onsite clinic or his
personal physician (Tr. 3060-61). Mr. Jones has been a participant in
various sports activities and also lifted weights for 21 years (Tr.
3062, 3071-72). Mr. Bailey, who worked as a tuber operator in 1993,
testified that he pulled a muscle in his lower back when he "grabbed a
preform wrong" (Tr. 2970, 2984). He reported the injury to his
supervisor the following day, but was not sent to the onsite clinic and
continued to perform his work (Tr. 2984-85). Mr. Bailey testified that
he lifts weights to strengthen his arms for lifting preforms (Tr.
2981).[50]

Although Besser's report mirrors the citation in terms of identified
stressors, his testimony indicates that like Dr. Schulze, he was most
concerned with the preform lift (Tr. 6057- 59; Exhibit R-5586 at 11-14).
He testified, however, that his lifting analysis calculations indicate
the preform lift can be safely performed by the majority of the
population and is not "inherently dangerous" to the tuber operator, but
that there is the /potential/ for the lift to pose a hazard of low back
injury to an employee who is not properly trained in safe lifting
techniques (Tr. 6058-60; Exhibit R-5586 at 12). Besser also noted that
in order to determine whether this lift poses a hazard, the injury rate
among tuber operators must be considered (Tr. 6060-61).[51] Among the
plant doctors, Dr. Smith-Horn specifically testified that she never
treated any tuber operators during her tenure at Dayton, while the other
doctors made no mention of the tuber operator job (Tr. 4407-08).

As evidence of actual injury, the Secretary relies upon the testimony of
all three tuber operators who appeared at the hearing (Secretary's Brief
at 50). However, as with the previous citation instance, there is no
documentation to support the testimony of these employees. Of the three,
only Mr. Williams' injury was reported and treated by onsite personnel.
Neither Mr. Jones nor Mr. Bailey suffered from conditions diagnosed by
any type of medical personnel, onsite or otherwise. Though apparently
reported to Dayton, Mr. Williams' condition does not appear in the OSHA
200 log for 1993 or any of the other relevant injury records submitted
into evidence here. In addition, none of the plant doctors provided
testimony regarding specific injuries suffered by any tuber
operators.[52] Thus, there is nothing in the record which can properly
be considered proof of actual harm under this instance. Therefore, the
Secretary must establish potential harm and indicate, with some
specificity, the "threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent torso flexions, lifting from awkward postures,
long periods of standing, and working in hot environments. There is no
question that all of these activities and conditions are part of the
tuber operator job. Indeed, Dayton itself acknowledges in its job
evaluation form for the tuber operator that bending, carrying, lifting,
and standing are all physical elements of this job (Exhibit C-658). In
addition, to alleviate the high heat experienced in this department,
Dayton apparently provided fluids for the employees to drink and also
installed fans (Tr. 3056).

Having failed to establish the point at which long periods of standing
becomes hazardous, the Secretary remains unable to sustain her claim
that this activity poses potential harm to tuber operators.[53]
Likewise, the Secretary has failed to prove that the high temperatures
in the tubing department may cause employees harm in the context alleged
here. Dr. Schulze claims that high heat can be considered an ergonomic
stressor because it can cause an employee to fatigue quicker, thereby
increasing the employee's potential for injury (Tr. 1394-95, 1630-32).
But this is too broad of an assertion, and too tenuous of a link, to
sustain a claim of potential harm as it relates specifically to the
development of cumulative trauma disorders. Fatigue is not an injury and
the weakened state which it allegedly creates would presumably make an
employee susceptible to a myriad of potential injuries, not just
conditions of the type alleged here.

With regard to "torso flexions", i.e. bending at the waist, the
Secretary has alleged that it is the /frequency/ with which this
activity is performed that poses the potential for harm (Tr. 1439).
Based upon the employee testimony, tuber operators bend at the waist at
least once per die change, for a total of 10 to 18 times per shift.
There is nothing in the record, however, which establishes that bending
at the waist at this frequency level can be potentially harmful. As
indicated /supra/, none of the Secretary's witnesses were able to
identify the level of repetition at which injury may occur. In the
section of his report dealing with tuber operators, Besser describes the
torso flexion as a "hidden lifting task" which is consistent with the
development of low back injury (Exhibit R-5586 at 11-12). But he admits
that he was unable to determine the frequency of this task, and repeats
his admonition regarding the difficulty in determining the number of
times an activity i.e., torso flexions, can be performed before it will
cause injury (Exhibit R-5586 at 11).[54] Based on this record, the
Secretary has failed to show how this activity i.e., torso flexions,
poses potential harm to tuber operators.

With regard to "lifting from awkward postures", both Besser and Dr.
Schulze agreed that the preform lift is infrequently performed, yet
could be potentially harmful based upon its "awkwardness". Thus, it is
not the weight or frequency of the lift that makes it hazardous; it is
the way the lift is performed. But what exactly is an "awkward posture"?
According to Dr. Schulze, "any posture that puts somebody outside of a
neutral or relaxed position is awkward" (Tr. 1442). Although he concedes
that this is not apparent from the face of the citation, he claims that
Dayton should have been able to discern the meaning of this phrase
simply by observing the tuber operator actually perform the lift (Tr.
3167-68). Certainly, this is not what the Commission contemplated when
it held that the Secretary must define a hazard alleged under the
general duty clause in a way that "apprises the employer of its
obligations". /Pelron Corp/, 12 BNA at 1835. Leaving it to an employer
to guess what citation language means or does not mean cannot constitute
adequate notice of the violations with which it has been charged.

Furthermore, Besser seemed to recognize that the problem with defining
this activity as a hazard is that its potential for harm depends largely
upon the individual tuber operator and not with his external working
conditions. Hence it is his opinion that there is no danger in
performing this lift without some failing on the part of the employee.
This is consistent with Judge Frye's observations in Beverly that the
potential for harm from any lift stems almost entirely from an
employee's own physical exertion. Indeed, no two tuber operators will
perform this lift from exactly the same position. Under these
circumstances, I cannot find that the Secretary has established that
"lifting from awkward postures" poses potential harm to tuber operators.

Even if the Secretary had proven harm here, her case would still fail
the causation element of her burden of proof. As discussed /supra/,
without the proper foundation, neither Besser nor Dr. Schulze are
qualified to attribute the development, potential or actual, of
cumulative trauma disorders among tuber operators to the work activities
alleged to be ergonomic stressors. Moreover, their respective analyses
lack the element which they themselves acknowledge is critical to any
determination of causation: actual injury data.[55] Finally, absent
serious consideration of the various non-occupational sources which the
Secretary's witnesses admit can cause or contribute to the development
of cumulative trauma disorders, the issue of causation cannot be
adequately resolved on this record. Accordingly, the Secretary has
failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance C - Bookers_*

Under this instance, the citation states in relevant part:

    C) Department #126 - Tubing; Booker(s) repeatedly lift tire treads
    from a conveyor belt and place them on a tread tray/rack system,
    which involves ergonomic stressors such as frequent lifts with
    twisting, extended and elevated reaches, and long periods of
    standing that contributed to and/or resulted in cumulative trauma
    disorders (CTD).

Two employees testified in connection with this instance: William Dale
Davis (Tr. 1060-1137) and Karla Ramirez (Tr. 1138- 1207). Bookers are
primarily responsible for loading tread trays with treads lifted from a
conveyor belt that runs from the tubing machine (Tr. 1062-63, 1069,
1083-84, 1148-49; Exhibit C-962, Segment starts 0:09:31). Tread trays
are six to eight-foot tall units that consist of 41 stacked and hinged
trays or "leaves", each of which measure 87 inches by 48 inches (Tr.
1072-73, 1080, 1082, 1124, 1127-28). Starting from the bottom of the
tread tray, the booker throws three or four treads inside each leaf.
Once full, the booker lowers the next leaf and repeats the process (Tr.
1072-74, 1079, 1084, 1126-27, 1129-31, 1144, 1448- 49, 1155, 1167, 1172).

Depending on the type of tubing machine, up to three bookers are
assigned to work on a machine at one time (Tr. 1088-90, 1162- 63). On a
dual tread line, two bookers stand along the conveyor belt side-by-side,
loading treads into their respective tread trays; one booker lifts
treads from the row passing closest to the workers, the other from the
parallel row above that (Tr. 1105, 1150-51). The third booker alternates
between loading tread trays and operating the fork lift which transports
trays to and from the booking stand (Tr. 1065, 1105, 1182, 1193-94).
According to both employee witnesses, bookers assist each other whenever
possible (Tr. 1168, 1088-90). Bookers are also required to take scrapped
treads to a nearby pallet at the start of each new run (1191-92).

In order to load a tread tray, the booker bends to lift a tread from the
conveyor belt running along one side of the booking stand, twists or
turns to the open leaf on the other side, and throws the tread into
place (Tr. 1069, 1073-74, 1078, 1084-86, 1156-57). Each tread weighs
between three to twelve pounds (Tr. 1105, 1122). In order to pull down
the upper leaves of a tray, the booker must jump up or even stand on a
small ledge (Tr. 1079, 1082-84, 1129-31, 1155, 1173). Both employees
indicated that on some occasions the leaves stick, do not close all the
way, or do not stay up (Tr. 1128, 1155, 1168-69, 1172). If a tread
sticks to or overlaps another tread in the leaf, the booker may have to
bend and/or reach into the leaf to straighten it (1071-72, 1122-25,
1153). In addition, on a dual tread line, one of the bookers must reach
about an arm's length to lift treads from the top row on the conveyor
belt (Tr. 1086, 1150-52). While loading tread trays, bookers stand on a
steel platform elevated about six to twelve inches from the floor with a
mat underneath their feet (Tr. 1063, 1066-67, 1069, 1088, 1107-08 ).

Mr. Davis, who has worked as a booker for 15 to 20 years, testified that
in August of 1992, he experienced a sharp pain in his shoulder whenever
he lifted a tread and threw it or had to reach for a leaf in the tray
(Tr. 1060, 1078, 1094-95; Exhibit C- 861). Upon reporting the pain to
his supervisor, an accident analysis form was completed and Mr. Davis
was sent to the onsite clinic where he was treated with medication and
assigned to light duty work for three weeks (Tr. 1096-97, 1099, 1101-02;
Exhibit C- 861). Mr. Davis also participated in an offsite
rehabilitation program for three weeks and was given cortisone shots in
both shoulders by an offsite physician (Tr. 1097-98). His condition was
recorded in Dayton's OSHA 200 log for 1992 (Exhibit C-672). Mr. Davis
indicated that he has played golf for 30 years (Tr. 1062).

Ms. Ramirez, who has worked as a booker for 8 to 9 years, testified that
in 1992, she experienced swelling and pain in her knee (Tr. 1138-39,
1173-74). She reported the pain to her supervisor and visited the onsite
clinic where she was given anti-inflammatory medication (Tr. 1174-75).
However, Ms. Ramirez continued to have problems with her knee, which she
again reported to her supervisor (Tr. 1176). She was subsequently
examined by her personal physician who gave her medication and
instructed her to keep the leg elevated and iced twice a day (Tr.
1176-77). Apparently, surgery was also performed on the knee (Tr.
1203-04, 1207). According to Ms. Ramirez, her physician told her that
her knee injury was due to repetitive twisting and bending and he
recommended that she transfer to a different job (Tr. 1177-78). On
cross-examination, however, Ms. Ramirez acknowledged that sometime in
1992, she had injured her knee outside of work during a physical
incident with another individual, but claims that she did not experience
serious problems with the knee until several months later (Tr. 1204-07).
She also claims that a workers compensation claim was filed in
connection with her injury (Tr. 1179).[56]

Mr. Besser identified frequent lifting, twisting, torso flexion,
extended and elevated reaches, and long periods of standing as the
stressors associated with the booker job (Tr. 6069-70; Exhibit R-5586 at
14-16). In his report, these stressors were associated with various
conditions including low back injury, bursitis, and varicose veins
(Exhibit R-5586). Having determined that bookers lift treads ranging in
weight from eight to twelve pounds at a rate of 10 times per minute,
Besser found that the action limit for this task was greater than or
equal to the weight actually lifted (Exhibit R-5586 at 16).[57]

At the hearing, two of the plant doctors provided specific testimony
about the booker job. Dr. Root recalled discussing the booker operation
at weekly meetings with members of Dayton management including Ms.
Mattocks, the safety section manager (Tr. 4531-35). According to Dr.
Root, the possibility of eliminating the use of the top and bottom
leaves of tray was discussed, but she could not recall why (Tr. 4535-36,
4583-84). She also recalled discussing "overhead work" at these
meetings, work which included the booker's use of the top racks of the
tread tray (Tr. 4577-79, 4583). Dr. Root testified that employees who
perform overhead work are subject to an increased risk for shoulder
disorders (Tr. 4577).

Dr. Parrish recalled observing the booker job at some point during his
tenure at the Dayton plant (Tr. 4870-71). He testified that he
recommended to the safety director at that time that use of the bottom
five and top five shelves of the tread tray be eliminated so that
bookers would not have to bend over or reach up to place treads there
(Tr. 4871-72, 4874). According to Dr. Parrish, some employees had
complained of pain and discomfort in the neck and back areas due to this
activity, (Tr. 4872-73). He believed these complaints to be due to
spasms in the neck and back, and considered them to be "stress related
injuries" (Tr. 4873). In terms of evidence of actual injury, the
Secretary relies upon the testimony of both of the bookers who testified
at the hearing (Secretary's Brief at 55-57). Although Mr. Davis'
shoulder condition is recorded in a related accident analysis form and
OSHA 200 log entry, neither of these documents indicate a definitive
diagnosis, making it difficult to determine whether Mr. Davis actually
suffered from a cumulative trauma disorder as alleged by the
Secretary.[58] Ms. Ramirez' condition, on the other hand, is not
documented in any of the relevant injury records submitted into
evidence, nor is it recorded on Dayton's OSHA 200 log for 1992. Despite
her claim that she received workers compensation benefits for this
injury, there is also some doubt as to whether Ms. Ramirez' knee injury
actually occurred as the result of a work-related event.

Dr. Parrish's testimony that bookers, in general, complained about pain
and discomfort seems to suggest that as a group, these employees were
experiencing some sort of physical harm. However, Dr. Parrish attributed
these complaints to spasms occurring in the neck and back, a condition
which has not been identified as a type of cumulative trauma disorder.
Moreover, Dr. Parrish provided no specific data about these conditions
nor are they consistent with the conditions experienced by Mr. Davis and
Ms. Ramirez. As such, his testimony does not definitively prove that
actual harm of the type alleged by the Secretary existed among the
bookers.[59] As such, there is nothing in the record which can properly
be considered proof of actual harm under this instance of violation.
Therefore, the Secretary must establish potential harm and indicate,
with some specificity, the "threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent lifts with twisting, extended and elevated
reaches, and long periods of standing. All of these elements to some
degree are part of the booker job. Dayton itself acknowledges in its job
evaluation form for the booker that bending, carrying, lifting,
standing, turning, and reaching are all physical elements of this job
(Exhibit C-660).

As discussed /supra/, the Secretary remains unable to identify the point
at which the reaches and standing required of the booker job become
potentially harmful. This is particularly important with regard to
reaching, since this task can vary significantly depending upon which
position the booker has assumed in the three-person operation and which
leaf he is filling on a tread tray (Tr. 3289, 3306). Although Dr. Root
claimed that "overhead" work, apparently defined as work which requires
an employee to reach over above his head, increases an employee's risk
for developing a shoulder disorder, she did not indicate how far of a
reach or how frequently the reach must be performed.

With regard to the final activity, frequent lifts with twisting, it is
the frequency of the lift and the twisting involved which the Secretary
has alleged poses the potential for harm. One cannot deny that the tread
lifting performed by bookers is "frequent". Dayton's job evaluation form
describes the job as a "fast and continuous operation" which requires
"continuous handling of light weight treads" (Exhibit C-660). What
remains unclear, however, is how frequent is too frequent for the
purposes of establishing harm. As with the frequent lifting performed by
the belt loader, there is nothing in the record to indicate the point at
which injury will occur. Without such evidence, it cannot be determined
whether the 10 to 13 lifts per minute estimated by Dr. Schulze and
Besser are harmful as alleged.[60] In fact, having calculated an action
limit that is equal or greater than the actual weight lifted by the
booker, Besser's lifting analysis indicates that this activity poses no
hazard at all (Exhibit R-5586 at 16).

The "twisting" element of the tread lift raises the same concerns that
"awkward posture" did under the previous instance. Is one twist harmful
or is it the frequency with which the twist is performed that creates a
potential hazard? Besser indicated that twisting is a "problem" because
the muscles in the back are essentially working in opposite directions,
creating a "stressful posture" (Tr. 6072-73).[61] Confusing the issue
further is the fact that both employee witnesses indicated that bookers
perform the tasks associated with the booking process differently (Tr.
1123, 1128, 1132, 1202-03 ). Indeed, no two bookers will move or
position their bodies in the exact same way when loading a tread tray
(Tr. 1132, 1202-03). Under these circumstances, the Secretary has failed
to show how "frequent lifts with twisting" poses potential harm to bookers.

Even if the Secretary had proven harm here, her case would still fail
the causation element of her burden of proof. As discussed /supra/,
without the proper foundation, neither Besser nor Dr. Schulze are
qualified to attribute the development, potential or actual, of
cumulative trauma disorders among bookers to the work activities alleged
to be ergonomic stressors. Moreover, their respective analyses lack the
element which they themselves acknowledge is critical to any
determination of causation: actual injury data. Given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis also fails
to reliably assess causation.

Although testimony from two of the plant doctors suggests that they
believe there to be a link between some of the activities performed by
bookers and risk for physical harm, neither doctor established the
degree to which such activities, as opposed to non-occupational
activities, may cause or contribute to these conditions. Indeed, both
Dr. Root and Dr. Parrish acknowledged that non-occupational factors can
play a role in the development of cumulative trauma disorders (Tr.
4616-18, 4624, 4634-35, 4836-37). Dr. Root also admitted that she was
not always able to obtain a complete history for a particular employee
such that these factors could be considered (Tr. 4625-26, 4634-35).
Absent consideration of the various non-occupational sources which can
contribute to the development of cumulative trauma disorders, the issue
of causation cannot be adequately resolved on the basis of this
testimony alone. Accordingly, the Secretary has failed to prove that any
of the work activities alleged under this instance of violation are
hazardous to the employees who perform them.

*_Instance F - Beadwinders_*

Under this instance, the citation states in relevant part:

    F) Department #124 - Bead Building; Beadwinder(s) operates a wire
    insulating and bead forming machines which involves ergonomic
    stressors such as frequent extended reaches to both sides to access
    materials from the machine, frequent pinches and long periods of
    static posture that are consistent with the development of acute
    shoulder, upper arm, upper back muscle, and tendon fatigue such as
    strains, sprains, tears or UECTD's such as; bursitis, tendinitis,
    and rotator cuff injuries.

One employee testified in connection with this instance: Larry Dorian
Collier (Tr. 1872-1921). Beadwinding machines produce a round,
rubber-coated, steel wire known as a "bead" (Tr. 1878, 1882-83; Exhibit
C-969). The beadwinder is responsible for removing each bead from the
machine, aligning its overlapping layers of rubber and wire, and placing
the finished bead onto a rack (Tr. 1878-79, 1883-85, 1886, 1890; Exhibit
C-962, Segment starts 0:25:44). While performing this task, the
beadwinder is permitted to sit in a chair positioned between the machine
and the rack (Tr. 1878-79). From this position, the beadwinder reaches
on one side to remove a bead from the machine's chuck, and reaches on
the other side to place the finished bead onto a rack (Tr. 1879,
1889-90, 1892). Aligning the bead requires the beadwinder to use both
hands to press or pinch the overlapped rubber and wire together (Tr.
1879-80, 1884-87, 1892-93). Mr. Collier indicated that each beadwinder
performs this task "just a little bit different" (Tr. 1887-88). He was
required to produce between 6,000 and 9,000 beads per 8-hour shift;
about 14 to 15 beads are produced per minute (Tr. 1876, 1894-95). Other
duties performed by beadwinders include loading the beadwinding machine
with raw rubber and reels of wire, setting up the machine for
production, repositioning bead racks, and cleaning up the work area (Tr.
1876, 1891, 1905-10). According to Mr. Collier, about 6 « hours of his
8-hour shift was spent producing beads (Tr. 1873, 1920).

Mr Collier, who worked as a beadwinder for five or six months, testified
that while working in this position in October of 1992, he experienced
pain in his right elbow, which was examined by a nurse at the onsite
clinic (Tr. 1897-1901). His condition was recorded in Dayton's OSHA 200
log for 1992 (Exhibit C-672). Mr. Collier also suffered joint pain and
swelling in both of his hands which he attributed to pressing down on
beads in order to align them (Tr. 1901-02). He testified that he left
the beadwinder job after five to six months to "get away from the
repetition." After changing jobs the swelling in his hands subsided (Tr.
1873-74, 1902).[62]

Having served as the source for the citation's language, Besser's report
identified frequent extended reaches to the sides, frequent pinches, and
long periods of static postures as the stressors associated with this
job (Tr. 6074-75; Exhibit R-5586 at 23-25). He calculated that a
beadwinder performs an average of 1900 pinch grips per hour at the high
end of the 1500 to 2000 range of repetitions which he claims have been
shown to cause tendon and sheath swelling (Tr. 6075; Exhibit R-5586 at
23). Besser also indicated that frequent extended reaches to the sides
stretches the muscles of the arm and shoulder creating fatigue and
possible tendon inflammation consistent with the development of
cumulative trauma disorders of the upper extremity such as tendinitis
(Tr. 6076; Exhibit R-5586 at 24). Finally, he testified that the
beadwinders he observed on the videotape were working from chairs that
were not adjustable or padded, creating "contact trauma to the muscles,
nerves and blood vessels in the back of the legs" (Tr. 6076-77; Exhibit
R-5586 at 24).[63] None of the plant doctors testified as to any
specific injuries suffered by beadwinders or the beadwinder job in general.

As evidence of actual injury, the Secretary relies upon Mr. Collier's
testimony that he suffered from pain in his right elbow and swelling in
his hands (Secretary's Brief at 61-62). However, there is nothing in the
record to indicate whether Mr. Collier's condition, though recorded in
Dayton's OSHA 200 log, was ever diagnosed. Indeed, his condition does
not appear in any of the relevant injury records in evidence here.
Without a diagnosis, it is impossible to determine if Mr. Collier's
elbow pain falls within any of the various injuries listed in the
citation under this instance. In addition, the plant doctors did not
testify to any specific injuries suffered by beadwinders. Thus, there is
nothing in the record which can properly be considered proof of actual
harm under this instance of violation. Therefore, the Secretary must
establish potential harm and indicate, with some specificity, the
"threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent extended reaches to both sides to access materials
from the machine, frequent pinches, and long periods of static posture.
As discussed /supra/, there is nothing in the record to indicate the
point at which an extended reach, even one performed frequently, becomes
a hazard. None of the Secretary's witnesses were able to identify how
often a reach must be performed, or how far, before the potential for
harm develops. Furthermore, Besser's claim that these reaches stretch
the muscles of the arm and shoulder, creating fatigue and possible
tendon inflammation, which may in turn develop into a cumulative trauma
disorder of the upper extremity, is a tenuous assertion that is not
supported by the record (Tr. 6076; Exhibit R-5586 at 24).[64]

Having focused on the frequent pinching aspect of the alignment task,
Besser made an attempt to quantify the harm to the beadwinder by
calculating the average number of pinch grips performed, then comparing
it to a range of repetitions which he contends have been shown to result
in tendon and sheath inflammation (Tr. 6075; Exhibit R-5586 at 23).
Besser's conclusion however, lacks the proper foundation since he failed
to identify the study on which he relies and did not provide any
specific details about how the study was performed or what type of
repetitive activity was examined. Therefor, the Secretary has failed to
prove that performing frequent pinches poses potential harm to beadwinders.

Finally, as was the case with long periods of standing, there is nothing
in the record to indicate how long one must remain in a "static posture"
before the onset of harm. What actually constitutes a "static posture"
is not clear from the record. Indeed, according to the various
definitions offered by Dr. Schulze, it simply means non-movement or
holding a posture for some unspecified period of time (Tr 1437-38,
2013-14, 2662, 3107). Here, both Besser and Dr. Schulze concluded that
beadwinders should have better designed chairs from which to perform
their work but failed to indicate how sitting in the "wrong type" of
chair leads to the development of a cumulative trauma disorder. Indeed,
Besser's testimony that sitting in an unadjustable, unpadded chair
"causes contact trauma to the back of the legs which reduces the blood
flow to the feet" does not establish the type of harm alleged here by
the Secretary (Tr. 6077).

Even if the Secretary had proven injury, her case would still fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among beadwinders to the work activities alleged to be
ergonomic stressors. Moreover, their respective analyses lack the
element which they themselves acknowledge is critical to any
determination of causation: actual injury data. Moreover, the plant
doctors offered no relevant testimony regarding the beadwinder job.
Finally, absent consideration of the various non-occupational sources
which the Secretary's witnesses admit can cause or contribute to the
development of cumulative trauma disorders, the issue of causation
cannot be adequately resolved on this record. Accordingly, the Secretary
has failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance J - Tire Builders_*

Under this instance, the citation states in relevant part:

    J) Departments #130, 173, 174 - Tire Builders go through several
    stages of laying strips of rubber, placing bead rings and removing
    the product to a storage rack. Ergonomic stressors are created
    during this process such as frequent forceful pinch grips, elevated
    reaches and lifts, torso flexions, increased compressive force, and
    high periods of standing. These stressors are consistent with the
    development of musculoskeletal injuries, low back injuries, UECTDs,
    and varicose veins.

Eight employees testified in connection with this instance: Gerald Keith
Wright (Tr. 370-533); Stephen Ray Newby (Tr. 538- 661); Jim B. Wisby
(Tr. 662-702); Robert J. Pietrowicz (Tr. 703- 818); Donna Luretha Nolan
(Tr. 827-911); Larry Gene Reeves (Tr. 911-998); Larry Conaway (Tr.
1010-54); and Ronald Eugene Lindsey (Tr. 4946-89). Tire builders are
primarily responsible for assembling a tire's components into one unit,
a process that occurs in two stages. In the first stage,[65] the tire
builder places two beads inside the rings of a tire assembly machine and
using floor-level pedals to operate the machine, spools rubber inner
liner onto the machine's drum (Tr. 377, 386-88, 434, 756- 57, 841;
Exhibit C -962, Segment starts 0:42:10 & 1:00:35). This requires the
tire builder to reach for the beads which hang from an elevated pin, and
bend, twist, and reach, to place them inside the machine's rings (Tr.
386-88, 436-37, 484-86, 561, 569, 765, 842). After a complete revolution
of the drum, the tire builder cuts the liner with a sliding blade, then
splices and seals the ends of the liner together (Tr. 377, 388-89, 438,
582-83, 619-20, 756).

The same process is then repeated for the application of one or two
layers of body ply, but instead of a sliding blade, a hot knife is used
to cut the ply (Tr. 378-82, 389-90, 438, 756). To cut and splice the
body ply, the tire builder must bend and use some force, making at least
one cut per tire with a hot knife which, according to Mr. Pietrowicz, is
gripped tightly (Tr. 438- 39, 562-63, 766-67). In an automatic process,
the tire assembly machine then sets the beads into the tire "carcass"
created on the drum (Tr. 382-83, 386). The final step of the first stage
process requires the tire builder to spool, cut, and stitch black and
white sidewall strips onto the tire carcass (Tr. 383-84, 392- 93,
398-400, 486-87, 756-57).[66] To stitch the sidewall, the builder uses a
hand tool and applies pressure with both hands; the sidewall is stitched
at least three times per tire (Tr. 487- 88, 562, 766-67, 836-37, 939,
996, 1040). To spot materials onto the machine's drum, the tire builder
must use both hands (Tr. 378, 383). Once the process is complete, the
carcass is broken free of the drum and placed on either a two-foot high
tire rack or a two-foot high conveyor belt (Tr. 387-88, 391, 440,
565-66, 757, 768-69)

At the second stage of the tire building process, the tire builder takes
the carcass from a conveyor belt or BPA rack and places it onto a
lubricated drum where the steel belts and treads are applied in an
automatic process that inflates the tire (Tr. 412, 414, 426-27, 920,
926-28, 935-36, 974-75, 984). In Department 173, the tire builder lifts
tire carcasses from a one- foot high conveyor belt, while in Department
174, the tire builder reaches as high as eight feet to remove carcasses
from the upper pins of a BPA rack (Tr. 442-44, 926-27, 976). To create
the steel belt band, the tire builder spools steel belt around a drum,
clips it into place with a metal clip, cuts it with a hot knife, then
splices the belt together (Tr. 412-13, 523, 921, 927, 940-41).

The tire builder then takes a tread from the tread tray and loads it
onto the machine's "server" (Tr. 409-10, 414, 922- 23).[67] This
requires the tire builder to lift treads from the tread tray, a task
which requires him to bend, twist, and reach, to access the treads
located in the upper and lower leaves of the tray; each tread tray is
about six feet high and about one foot off the ground (Tr. 426, 444-47,
525-26, 923, 935-37, 994, 4954, 4974-75). Once the automatic inflating
process is complete, the tire builder pulls or breaks the uncured or
"green" tire free of the machine's drum and hangs it onto a beehive
rack, bending to place tires onto the lower pins of the rack located
about two feet from the floor, and reaching to place tires onto the
upper pins of the rack located at least five feet from the floor (Tr.
407, 415-20, 447, 924-25, 929, 941-45, 977). At this point of the
manufacturing process, a green tire weighs about 25 to 30 pounds (Tr. 417).

Other duties performed by tire builders include sharpening and cleaning
hot knives, placing their builder number on inner liner, lubricating the
machine's drum, and changing stock rolls (Tr. 382-83, 399-403, 440,
501-02, 564, 566, 600-01, 759-60, 798, 881, 931, 991, 1040-41). Most
stock roll changes are performed anywhere from two to twelve times per
shift; for tempa-spares, tread roll changes are done every hour (Tr.
617-18, 649, 838, 992, 1043).

Since the tires tend to stick to the drum of each machine, all tire
builders must reach, bend, twist, and pull in order to break a tire
carcass free from the drum of the tire assembly machine (Tr. 439,
564-65, 767-68, 942-43, 1041-42, 1049). While performing most of their
job duties, the tire builder stands on a concrete floor which is
sometimes covered with a mat (Tr. 386, 427, 435-36, 524, 561, 678, 764,
841, 928, 934, 1027-28). Mr. Newby testified that he initially bought
his own mat, but by 1994 the plant began providing them (Tr. 561, 651).
When changing rolls of stock, however, some employees indicated that
they stood up on the side of the machine in order to reach the area
where the new reel is fed (Tr. 566-67, 618).

Tire builders are compensated with an hourly rate of base pay plus
incentive pay for each tire produced over their base tire production
rate. If the base production rate is not met, the builders are docked
pay and/or written up (Tr. 423, 430-32, 540, 663-64, 704-06, 831, 915,
1014, 4949). The base tire production rate varies depending upon the
size of the tire being produced but ranges from about 170 to 250 tires
per 8-hour shift. Most of the employee witnesses indicated that they
produced well over their base rates producing as many as 400 tires per
shift (Tr. 503, 540, 567-70, 593, 705-06, 831, 915, 966, 970, 1014,
1051, 4955).

Mr. Wright, who worked as both a first stage and second stage tire
builder from 1990 to 1994, testified that in this position he suffered
injuries to his shoulder, right elbow, and right wrist (Tr. 372-73, 430,
495, 449). In June of 1993, Mr. Wright experienced "unbearable" pain in
his shoulder whenever he pulled or reached for something. He reported
the problem to his supervisor who sent him to the onsite clinic for
treatment (Tr. 451-52). He testified that he was diagnosed with a muscle
strain, treated with medication and assigned to light duty work (Tr.
455-56). In 1991, Mr. Wright reported having wrist pain to his
supervisor which, according to the associated accident report, was
described as a recurring injury due to a "stress factor" (Tr. 462-68;
Exhibit C-842). He was supplied with a wrist brace by the plant doctor
(Tr. 468; Exhibit C-842). In July of 1992, Mr. Wright developed pain in
his elbow which apparently worsened whenever he was building tires (Tr.
458-59, 475-78; Exhibit C-914N). According to the associated accident
analysis file, this pain was attributed to repetitive motion (Exhibit
C-914N). Mr. Wright reported his condition and visited the onsite clinic
where heat was applied and he was assigned to light duty work for a week
(Tr. 459; Exhibit C-914N). In terms of prior injuries, Mr. Wright
indicated that he injured his right wrist in 1984 when the leaf of a
tread tray fell on it, and also fractured the wrist in a motorcycle
accident when he was fifteen years old (Tr. 507, 511, 531).

Mr. Newby, who worked as a first stage tire builder for 14 years,
testified that while changing the stock on his machine in 1991 he
suffered a back injury which he claims was initially diagnosed as a
pulled muscle, but later rediagnosed as a damaged disk (Tr. 539, 545-46,
549). According to the associated accident analysis file, he was pulling
out an empty liner spool when he developed pain in his lower back
(Exhibit C-802). Mr. Newby reported his condition to his supervisor and
was sent to the onsite clinic where he was supplied with a heat pack and
assigned to light duty work (Tr. 546, 552-53, 555-56; Exhibit C- 802).
He was also treated at an offsite facility where x-rays were taken and
he participated in physical therapy (Tr. 554-55). Mr. Newby stated that
upon returning to his position as a tire builder, he continued to
experience pain in his back for which he was provided with medication
and exercises (Tr. 556, 571-72). He claims that he filed a workers
compensation claim in connection with his injury (Tr. 574-75). Mr. Newby
also testified that while serving in the Navy he was a boxer and at that
time developed an osteoarthritic knee for which he receives a disability
check. He was told by one of his physicians that his knee problem
contributed to his back injury (Tr. 544, 597-99)

Mr. Wisby, who became a tire builder in 1983, testified that while
working in this position he suffered from a cyst on his right wrist (Tr.
670-73). He reported the problem to his supervisor and was sent to the
onsite clinic where he was supplied with a wrist brace and assigned to
light duty work for three weeks (Tr. 671-73, 676). Mr. Wisby testified
that he was told by the plant doctor that his injury was caused by
repetitive motion (Tr. 673-76). Since his return to tire building the
cyst has not returned and he has not experienced further pain (Tr.
676-77, 698). Mr. Wisby also testified that in 1985 he had a cyst on his
left wrist which, according to the plant doctor, was the result of a
sprain (Tr. 690-91, 698-99).

Mr. Pietrowicz, who worked as a tire builder for 13 years, testified
that while working in this position he developed carpal tunnel syndrome
in both hands and cubital tunnel syndrome in both elbows (Tr. 703-04,
717-18, 806). In August of 1991 Mr. Pietrowicz experienced pain in his
left shoulder and wrist while pulling a bead loose from a bundle.
According to the accident report, his pain was attributed to repetitive
use (Tr. 742-45; Exhibit C-812). In 1992 he reported to his supervisor
that he was having pain in his right hand and visited the onsite clinic
where he was given medication and assigned to light duty work for two to
three weeks. According to the associated accident report, the pain was
attributed to repetitive motion (Tr. 721-24, 751-52; Exhibit C-903).
After returning to tire building his pain recurred and when he visited
the onsite clinic he was told that his symptoms were consistent with
carpal tunnel syndrome (Tr. 725-29). Mr. Pietrowicz was given medication
and his arm was splinted for three weeks, then put in a cast (Tr.
729-30, 736- 37). After the cast was removed he was sent to physical
therapy for 21 days, then returned to work for two weeks of light duty
(Tr. 730-34). In March of 1993 Mr. Pietrowicz visited his personal
physician for this injury and was diagnosed with right carpal tunnel
syndrome and cubital tunnel in his right elbow. Surgery was performed
for both conditions (Tr. 738-39, 806-07). In 1994 surgery was also
performed on his left elbow and hand, apparently for the same conditions
(Tr. 718, 739-41, 806-07). Mr. Pietrowicz filed a workers compensation
claim in connection with these injuries (Tr. 814-15; Exhibit C-948).

Ms. Nolan, who worked for at least three years as a tire builder until
1993 testified that in March of 1991 she reported to her supervisor that
she was experiencing back pain (Tr. 828- 29, 869-70, 876-79; Exhibit
C-808). According to the accident analysis file, she was diagnosed with
a muscle spasm, treated with medication, and assigned to restricted work
activity (Exhibit C-808). Also in 1991 Ms. Nolan sustained an injury to
her shoulder and neck when she was struck in the back by a chain (Tr.
845-47, 896-99). She was treated with medication and assigned to light
duty work, but continues to experience pain in her neck (Tr.
898-900).[68] In 1994, she injured her right knee and broke her toe (Tr.
848-49). It is not known, however, whether these injuries were work
related. Ms. Nolan also testified that while working as a tire builder,
she developed a cyst on her left wrist and her condition required
surgery (Tr. 903-05, 908). A workers compensation claim was filed by Ms.
Nolan in connection with this injury (Exhibit C-945).

Mr. Reeves, who has worked as a tire builder for eight years, testified
that in 1993 he developed numbness and swelling in both hands (Tr. 982,
948). He was seen by the plant doctor who diagnosed carpal tunnel
syndrome in his left hand and radial tunnel in his right elbow (Tr.
949-51, 984-85). The plant doctor then referred him to an offsite
physician who operated on Mr. Reeves' left hand and right elbow in April
and June, respectively, of 1994 (Tr. 951, 955). Mr. Reeves was out of
work from June 1994 until October of 1996 due to his recovery and the
labor strike (Tr. 955-56). The offsite physician placed permanent
restrictions on Mr. Reeves upon his return to work, telling him that he
could not perform any repetitive work (Tr. 951-54). Mr. Reeves testified
that after returning to tire building for one day, he was unable to
continue due to the pain in his arms and he has not returned to work
since (Tr. 952-58). He claims to have filed a workers compensation claim
in connection with these injuries (Tr. 959).

Mr. Conaway, who worked as a tire builder from 1988 to 1994, testified
that at an unknown date while pulling a tire from a drum he suffered a
back injury which he reported to his supervisor. He did not lose any
work (Tr. 1011-12, 1021-23). In 1990, Mr. Conaway's right wrist was
pierced by a bead wire and when he was sent by the plant doctor for
treatment at an offsite facility, he was told he had carpal tunnel
syndrome (Tr. 1025, 1046).[69] In 1992, he developed a cyst on the same
wrist and at the time the cyst was surgically removed, Mr. Conaway
underwent carpal tunnel release surgery. He was out of work for four
months (Tr. 1024-26, 1046).

Mr. Lindsey, who worked as a tire builder for over 17 years until 1993,
testified that in 1991 he developed a muscle spasm under his left
shoulder blade (Tr. 4957, 4959, 4975-76, 4979). When he called the plant
two days later to report the problem, a security guard recommended that
he visit an offsite facility where he was treated with medication and
referred back to the onsite clinic's physician (Tr. 4959-60). Mr.
Lindsey reported to the plant doctor who provided him with muscle
relaxers (Tr. 4960). However, the pain in his left shoulder continued
and in 1993 he was referred to a physician who told him that his problem
was due in part to a slipped disk in his neck. In 1994 he had separate
surgeries on his neck and shoulder (Tr. 4961-62, 4977- 79). He also
testified that he had relief from his shoulder pain whenever he would
move it and acknowledged that building tires alleviated the pain. He
testified, however, that he took medication for his shoulder when he was
at work (Tr. 4976-77, 4988-89). A workers compensation claim was filed
in connection this condition (Exhibit C-939). Mr. Lindsey testified that
he works on race cars as a hobby outside of work (Tr. 4979-82, 4986-
87)[70].

Mr. Besser as Complainant's representative, identified forceful pinch
grips, elevated reaches, torso flexions, and long periods of standing,
as the stressors associated with this job which form the basis for the
citation (Tr. 6081, 6086; Exhibit R- 5586 at 28-32). He testified that
torso flexions create stress on the back increasing the hazard of low
back injury, and long periods of standing lead to generalized fatigue
and varicose veins (Tr. 6082-83 ; Exhibit R-5586 at 29, 32). Besser also
testified that extended reaches are consistent with the development of
shoulder fatigue which in turn leads to cumulative trauma disorders such
as strains, sprains, and tears in the shoulder and upper back (Tr. 6084;
Exhibit R-5586 at 30). In his report, he associated forceful pinch grips
with the wrist deviation required for the tire builder to pull rubber
around the drum, and concluded that this activity is consistent with the
development of cumulative trauma disorders such as tendinitis and carpal
tunnel syndrome (Exhibit R-5586 at 29). Besser also analyzed the tire
lifting task, but unlike Dr. Schulze, concluded that under the 1981
NIOSH lifting guidelines, the lift was hazardous because the weight of
the tire lifted, 32 to 45 pounds, exceeded the action limit of 24 pounds
(Tr. 6084-85; Exhibit R- 5586 at 31-32).[71]

All of the plant doctors provided testimony about the tire builder job.
Dr. Smith-Horn testified that she treated several first stage tire
builders, including Mr. Wright and Mr. Lindsey (Tr. 4428, 4433-44, 4467,
4470). Dr. Root testified that many of the tire builders she treated
suffered from shoulder or elbow problems, a potential "trend" which she
believes should have been addressed by Dayton (Tr. 4541, 4544-45, 4548).
Dr. Parrish testified that he recalls going out on the plant floor to
observe the tire builder job because the employees were complaining of
injuries (Tr. 4864-65). Of the four doctors, Dr. Lundy's testimony was
the most specific, identifying three tire builders whose injuries he
believed were attributable to the repetitive and/or forceful work which
they performed at Dayton (Tr. 4697-4701, 4704-06, 4712-14, 4716-20,
4739-41, 4797-99).[72]

As evidence of actual injury, the Secretary relies upon the testimony of
six of the eight tire builders who testified at the hearing, as well as
the workers compensation records for three tire builders who did not
appear at the hearing (Secretary's Brief at 71-82).[73] Of the fourteen
workers compensation records submitted into evidence by the Secretary,
only four relate to employees who testified at the hearing, and two
involve injuries which apparently occurred after the citation was
issued. When these records were offered into evidence by the Secretary
at the close of her case, there was considerable debate between the
parties over their admission. At that time, counsel for the Secretary
made it clear that all fourteen records were being offered to prove only
that the documents "exist" and that Dayton was aware of their contents
(Tr. 6550, 6579-81). The Secretary concedes that these documents were
not offered for the truth of their contents but to establish knowledge
of their contents on the part of Dayton (Tr. 6579-81). As such, these
records have been relied upon for the sole purpose of confirming or
establishing that a claim for compensation was filed in connection with
an injury or condition testified to by an employee witness. Therefore,
given the Secretary's limited basis for offering these records, their
factual content cannot be relied upon to establish actual harm to any
employees, including those who testified at the hearing.

With regard to the tire builders who appeared at the hearing, only
injuries testified to by Ms. Nolan and Mr. Lindsey were reliably
confirmed by accident analysis files or medical records. For the
remaining employees, the record simply lacks the adequate documentation
to conclude that the injuries and conditions to which they have
testified were accurately diagnosed such that they may be considered
proof of actual harm as alleged by the Secretary. For instance, Mr.
Pietrowicz testified that in March of 1993, he was diagnosed with carpal
tunnel syndrome in both hands and cubital tunnel in his elbow, but the
associated accident analysis files indicate only that he experienced
pain in both hands on two separate occasions in 1991 and 1992 (Exhibits
C-812 & C-903). Without his medical records, it cannot be determined
whether his injuries were reliably diagnosed such that they may be
properly considered here. Similarly, Mr. Wisby testified that he
suffered from a cyst on his right wrist due to repetitive motion, but
there is nothing in the record to confirm either his diagnosis or its
alleged cause.

Of the three injuries testified to by Mr. Wright, only one appears to
have been diagnosed i.e., a shoulder muscle strain occurring in
1993.[74] This injury, however, does not appear in any of the relevant
injury records submitted into evidence here. Although Dr. Smith-Horn
testified that she provided follow-up treatment for Mr. Wright's
shoulder condition, the actual diagnosis and any determination of its
cause was actually made by Dr. Root who was not questioned about Mr.
Wright's injury during her testimony (Tr. 4432- 34). Finally, Mr.
Conaway testified that he suffered from carpal tunnel syndrome in 1990
and developed a cyst on his right wrist in 1992. Although an undated
accident analysis form indicates that he suffered from right wrist pain,
the form does not contain a definitive diagnosis and neither of these
injuries appear in any of the relevant injury records in evidence here
(Exhibit C-857).[75]

In contrast, the injuries testified to by Ms. Nolan and Mr. Lindsey are
sufficiently corroborated by relevant injury records. A medical report
contained in the associated accident analysis file confirms that in
February of 1991, Ms. Nolan reported suffering from back pain for two
weeks and was diagnosed by Dr. Parrish with a muscle spasm in her upper
back (Exhibit C-808).[76] As the only tire builder witness for whom
detailed medical records were submitted into evidence, the injuries to
which Mr. Lindsey testified are also well-documented. Indeed, these
records confirm that from January through September of 1993, he suffered
from muscle strains in both shoulders (Exhibit C-173).

In addition to these injuries, the record contains further proof of
actual harm. Though not relied upon by the Secretary, an injury suffered
by Huu Pham, a tire builder who did not testify at the hearing, is
documented in a two- page medical report which has been made part of the
record (Exhibit C-241). According to this report, on October 6, 1993,
Mr. Pham reported experiencing pain in both elbows for the past two
months and was diagnosed at the onsite clinic with bilateral
epicondylitis (Exhibit C-241). Dr. Smith- Horn, whose signature appears
on the medical report, confirmed this diagnosis as well as her treatment
of Mr. Pham's condition (Tr. 4467, 4516).

Moreover, the fact that all four plant doctors testified that they
treated tire builders for similar medical problems is significant. In
terms of specific employees, Dr. Lundy provided testimony about an upper
back injury suffered by Mr. Lindsey, as well as two first stage tire
builders, Homer Dade and a Mr. Jolley, both of whom he diagnosed with
carpal tunnel syndrome (Tr. 4697, 4712, 4717-19, 4723).[77] Dr.
Smith-Horn indicated that she also treated Mr. Lindsey, as well as Mr.
Pham and two additional tire builders, Brent Quintero and Darryl Adams,
both of whom were diagnosed with shoulder strains (Tr. 4467).

For the reasons discussed /supra/, Dr. DeHart's identification of 215
tire builder injuries is unreliable for the purposes of establishing
actual harm. Indeed, most of the tire builders who testified at the
hearing either are not included in his analysis or appear for injuries
that are unrelated to those to which they testified. For instance, Mr.
Wright's only diagnosed condition was a shoulder strain in 1993, but Dr.
DeHart's data references three pain complaints from 1990, 1991, and 1992
for Mr. Wright's right hand, wrist, and arm, respectively (Exhibit C-987
at 9, 14). Similarly, Mr. Conaway testified to suffering carpal tunnel
syndrome in 1990 and a cyst on his right wrist in 1992, but Dr. DeHart's
data only references a "left L/S strain" occurring in 1993 (Exhibit
C-987 at 8). On the other hand, it is not surprising that Dr. DeHart's
data includes some of the tire builder injuries which have been found to
constitute reliable proof of actual harm, such as Mr. Jolley's 1991
carpal tunnel syndrome and Mr. Lindsey's 1993 shoulder strain.

Taken together, this evidence supports the Secretary's claims with
regard to proof of actual harm or, as the Commission described it in
/Pepperidge Farm/, /supra/ at 2014, the "evidence of effect". However,
as with previous citation items, the Secretary's case begins to falter
when it comes to proving the cause, both specifically and generally, of
any established harm. Beginning with Ms. Nolan's upper back injury, the
citation specifically alleges that the stressors alleged under this
instance of violation are consistent with the development of /low/ back
injuries. It is also not evident from the record whether a muscle spasm,
as opposed to a muscle strain or sprain, can be considered a
musculoskeletal injury of the type that is consistent with the stressors
alleged. Indeed, if their testimony were to be credited, both Dr.
Schulze and Besser identified only low back injury as a likely result of
the stressors associated with the tire builder job, and both mentioned
only strains, sprains, or tears to various muscle areas, not spasms, as
other potential injuries. Without a definitive link between Ms. Nolan's
injury and the stressors alleged, causation has not been established.

Mr. Lindsey's injuries raise additional concerns. First, his medical
records suggest that his injuries may have been acute in nature since
they were precipitated on at least four occasions by the performance of
a specific task, e.g. pulling on a tread or popping a tread loose
(Exhibit C-173 at 6941, 6973, 6928, 6927). In fact, Dr. Smith-Horn, who
testified that she treated Mr. Lindsey's right shoulder strain, admitted
on cross-examination that as described in the associated medical report,
this injury "sounds like" an acute injury (Tr. 4467, 4515; Exhibit C-173
at 6927). Moreover, the medical reports generally confirm Mr. Lindsey's
testimony that tests performed by an offsite physician indicated he was
suffering from a disk problem in his neck which required him to have
surgery in September of 1993 (Exhibit C-173 at 6982, 6940). According to
Mr. Lindsey, this physician told him his shoulder problems were due, in
part, to his neck problem (Tr. 4961-62, 4977-79).

Dr. Lundy testified that he believed Mr. Lindsey's "upper back" injury
was attributable to his work as a tire builder, caused by either the
manner in which he had to pull on tire carcasses in order to remove them
from the machine's drum, or the manner in which he had to reach in order
to access treads at the top of a tread tray or a combination of the two
tasks (Tr. 4697-4701, 4704-06, 4793, 4798-4801). But it is not entirely
clear to which injury Dr. Lundy is referring. According to his
testimony, Dr. Lundy worked at the Dayton plant from August of 1991
until November of 1992, well before Mr. Lindsey's shoulder problems
developed in 1993 (Tr. 4726). Not surprisingly, therefore, Dr. Lundy's
signature does not appear on any of the medical reports in evidence
here. Although one of these reports documents a March 8, 1991 injury
that seems to correspond with Dr. Lundy's description of Mr. Lindsey's
injury as one affecting his "upper back", it is not clear how Dr. Lundy
became aware of this condition since he did not begin working at the
plant for another six months (Exhibit C-173 at 6973).

Dr. Lundy also attributed Mr. Dade's and Mr. Jolley's respective carpal
tunnel syndrome diagnoses to their work, specifically the manner in
which they extend their arms and flex their wrists while cutting rubber
liner with a knife (Tr. 4712-14, 4716-20, 4723-25, 4718-21, 4797,
4814-46). For all three men, Dr. Lundy was concerned with the force and
frequency with which the identified tasks were performed, but did not
identify the levels at which these activities became hazardous or even
measure the force or frequency at which the men actually performed these
tasks (Tr. 4798-4804, 4739-40). He also acknowledged that he did not
know the production rates at which any of the men actually built tires
(Tr. 4745, 4800). This is critical given that the tire builders who
appeared at the hearing indicated that each employee, apparently driven
by the incentive pay system, sets his own tire building pace, and that
their individual production rate varied depending on a wide range of
factors including which machine they were assigned, what stock was
available and how well it performed, how much down time they
experienced, and what type of tire was being produced (Tr. 502-05,
520-21, 586-87, 591-96, 631-32, 679-81, 683, 694-95, 785-86, 792-94,
901, 966-70, 980-81, 1051-52). Under these circumstances, the frequency
and even the force with which certain tasks may be performed will vary
from tire builder to tire builder and may even depend, as Dr. Lundy
conceded, on the individual tire builder's size or stature (Tr. 4799-4804).

Finally, Dr. Lundy conceded that it is not possible to identify the
degree to which any of these injuries may be attributed to work (Tr.
4727-28). He testified that taking a history of the patient's activities
both in and out of the workplace is necessary to determine the cause of
an injury (Tr. 4728). There is no evidence, however, that he obtained
such a history from any of the three tire builders in question, or
whether he considered such factors in reaching his conclusions regarding
the cause of their injuries. Given these gaps in Dr. Lundy's testimony,
his conclusions regarding the cause of these injuries cannot be credited.

In addition to these factors, the same general problems which have
plagued the Secretary's proof of causation under previous citation items
make it impossible to determine if any of the other tire builder
injuries identified here can be associated with their work. Indeed,
there is nothing in the record to even suggest the cause of the injuries
suffered by Mr. Pham, Mr. Quintero, or Mr. Adams. The record also lacks
the kind of detailed epidemiological evidence which might shed some
light on any alleged link between these injuries and the stressors
alleged to be present in the tire builder job.[78] Also, as indicated
/supra/, neither Dr. Schulze nor Besser possess the medical expertise
necessary to associate the activities they consider ergonomic stressors
under this instance to any type of injury suffered by tire builders.

Moreover, as Dr. Lundy recognized, the issue of causation is further
clouded by the multitude of non-occupational risk factors for cumulative
trauma disorders, as well as the role an individual's medical history
and personal characteristics can play in the development of such
injuries. Having failed to account for such factors in his analysis, Dr.
DeHart, like Dr. Lundy, was unable to identify the degree to which
occupational sources, as opposed to non-occupational ones, caused or
contributed to the injuries identified.

For all of these reasons, the Secretary has failed to prove that any of
the work activities alleged under this instance of violation are
hazardous to the employees who perform them.

*_Instance K - Radial Dopers_*

Under this instance, the citation states in relevant part:

    K) Department #132 - Curing; Radial Doper(s) lift tires from storage
    spools and place them on a roller conveyor for further processing.
    After tires are processed they are lifted from the conveyor back to
    the storage spools. Ergonomic stressors are created during this
    operation such as high lifting frequencies, long periods of
    standing, repeated reaches above the shoulder height, and torso
    flexions. These stressors are consistent with the development of low
    back pain and injury, musculoskeletal injuries, various UECTDs in
    wrist, arms and shoulder, and varicose veins.

Four employees testified in connection with this instance: /Philip V.
Burrous/, Sr. (Tr. 1208-61); Daryl Robert Kindrick (Tr. 1262-1319);
Willy Lee Hill, Jr. (Tr. 1321-51); and Brian Lane Ferguson (Tr.
1689-1763). Radial dopers are primarily responsible for loading and
unloading the doper machine with "green" tires (Tr. 1227-29, 1698;
Exhibit C-962, Segment starts 1:03:40). The doper machine consists of a
series of conveyor belts, one of which carries each tire into a paint
cabinet where it is sprayed with three materials: blemish paint, tread
wash, and a mold release agent known as "dope" (Tr. 1210-11, 1221-22,
1229, 1255, 1280). Once this automatic process is complete, the tire
exits the machine on another conveyor belt (Tr. 1228-29). Other duties
performed by radial dopers include initialing dope weight charts,
cleaning the paint cabinet and its spray nozzles, adjusting the spray
nozzles, and repositioning the "beehive" racks on which the tires are
transported to and from the work area (Tr. 1256-57, 1272-73, 1290-91,
1310, 1348, 1702-04, 1708- 09, 1741, 1752-53). Radial dopers are
required to stand on a steel platform with a mat underneath their feet
while loading and unloading tires (Tr. 1241, 1327).

Radial dopers first remove green tires from a beehive rack then lift
them onto the intake conveyor belt. Once processed through the paint
cabinet, the tires are lifted from the exit conveyor belt and placed
back onto the beehive rack (Tr. 1224, 1228, 1278-80, 1704-05, 1707). The
tires vary in both size and weight but weigh anywhere from 5 to 35
pounds (Tr. 1257-59, 1350- 51). Depending upon the size of the tire,
each beehive rack contains 12 or 16 arms or "pins" on which the tires
are placed and each rack is about six feet tall (Tr. 1227, 1231, 1258,
1278). Tires lifted from or placed upon the upper pins of each beehive
rack require the radial doper to reach above his or her shoulders and
tires lifted from or placed upon the bottom pins of each beehive rack
require the radial doper to bend (Tr. 1225-30, 1233-34, 1277-78).
Because the tires tend to stick to the beehive pins, the radial doper
often must use force to break them loose (Tr. 1230). At the time that
the citation was issued, one radial doper was assigned to each machine
and he was required to process between 1,988 and 2,000 tires during an
8-hour shift (Tr. 1219-21, 1271-72, 1324-25, 1700-02, 1754).[79]
According to Mr. Ferguson, about 6 « hours of his 8-hour shift was spent
loading and unloading tires (Tr. 1763).

Mr. Burrous, who worked as a radial doper for three years, testified
that within two months of starting his job he complained to his
supervisor that the "rates" were too high and continued his complaints
throughout his three-year tenure (Tr. 1208, 1238-39). In terms of
injuries, Mr. Burrous indicated that as a radial doper he incurred a
neck injury in April of 1994, and a lower back injury in July of 1995
(Tr. 1239, 1241-43, 1249). He testified that he played football in high
school, at which time he sustained a shoulder injury, and has played
darts for a couple of years (Tr. 1216-17, 1249-50).

Mr. Kindrick, who became a radial doper in 1992, testified that he began
experiencing wrist pain in 1991, which he reported to his supervisor. He
was referred to an offsite facility by the plant doctor and diagnosed
with carpal tunnel syndrome (Tr. 1264, 1282-85, 1305). He was treated
with medication, supplied with wrist braces, and assigned to light duty
work (Tr. 1273, 1283, 1307). Mr. Kindrick also testified that working as
a radial doper has strengthened his back muscles and "substantially
decreased" the back pain he felt prior to taking the job (Tr. 1297-98).
In addition, he indicated that the amount of work he performed as a
radial doper did not always correspond with the amount of pain he
experienced (Tr. 1300-02, 1309-10, 1314-15).

Mr. Hill, who worked as a radial doper from 1986 until February of 1993,
also claims to have complained to management about the working
conditions he experienced as a radial doper (Tr. 1323, 1327-28).
According to Mr. Hill he incurred a back injury, a wrist injury, and a
shoulder injury (Tr. 1328-29, 1331, 1334-35). The wrist injury persisted
throughout his tenure as a radial doper and was treated at the onsite
clinic where he was supplied with a wrist band (Tr. 1329-30). Mr. Hill
claims that he was questioned by Dayton management regarding the number
of injuries he had incurred and was told he would be suspended if he was
involved in another incident (Tr. 1340-43). Mr. Hill testified that he
has engaged in non-occupational weight lifting most of his life (Tr.
1346-47).

Mr. Ferguson, who has worked as a radial doper for two years, claims
that he recommended to the plant's safety director that a study be
conducted of the radial doper job because of the large number of
injuries incurred by the dopers (Tr. 1732-33). He also testified that in
July of 1991, he began experiencing numbness in both hands at night. He
reported his symptoms to his supervisor in August of 1991 (Tr. 1691-92,
1713-15, 1720-21, 1743-44, 1761). After multiple visits to the onsite
clinic, he was treated with medication, supplied with wrist braces, and
assigned to light duty work (Tr. 1721-23). Mr. Ferguson was ultimately
diagnosed with carpal tunnel syndrome and elected not to have surgery
(Tr. 1745-46, 1763). Mr. Ferguson testified that he was previously
employed as a jeweler and continues to perform jewelry work (Tr. 1695,
1746).[80]

Mr. Besser identified frequent lifts, torso flexions, repeated overhead
reaches, and long periods of standing as the stressors associated with
the radial doper job (Tr. 6087; Exhibit R-5586 at 33-36). According to
his report, the repeated overhead reaches performed by the radial doper
"loads" the shoulder muscles and upper arms, a condition which,
according to the Secretary is consistent with the development of muscle
fatigue, pain and injury (Exhibit R-5586 at 34). The report also
indicates that performing frequent torso flexions while carrying a load
increases low back stress and the hazard of low back injuries (Exhibit
R-5586 at 34). Using the 1981 NIOSH guidelines, Besser analyzed the tire
lifting task using two different frequency levels, one provided by
Kearney and one which he calculated after viewing the job on videotape
(Tr. 6087-89; Exhibit R-5586 at 35). According to his calculations, at
the videotape's frequency level of 15 lifts per minute, the action limit
for this task is zero; at Kearney's frequency level of 8 lifts per
minute, the action limit is seven pounds, well below the tire weights
lifted by the radial dopers (Tr. 6087-89; Exhibit R-5586 at 35). Based
on his calculations, Besser's report states that the lift is hazardous
and consistent with the development of low back and shoulder injury
(Exhibit R-5586 at 36).[81]

Among the plant doctors, only Dr. Root made what could be construed as a
reference to the radial doper job. She recalled discussing the beehive
racks at medical committee meetings as an area of concern since the top
levels of the rack are above shoulder level and the lower levels of the
rack require employees to bend down (Tr. 4537-38, 4579). However,
beehive racks are used by employees in several of the other jobs cited
here and Dr. Root did not indicate whether her concern extended to all
such jobs or one in particular.

As evidence of actual injury, the Secretary relies upon the testimony of
three of the four radial dopers who testified at the hearing
(Secretary's Brief at 92-93).[82] Mr. Kindrick, however, appears to have
been diagnosed with carpal tunnel syndrome prior to his becoming a
radial doper. Moreover, his condition was not documented in any of the
relevant injury records in evidence here nor is it recorded in Dayton's
OSHA 200 log for 1991. Mr. Hill testified that throughout his seven-year
tenure as a radial doper, he suffered injuries to his back, wrist, and
shoulder. However, there is no definitive indication that Mr. Hill's
conditions were ever diagnosed and none appear in the relevant injury
records in evidence here.

Finally, Mr. Ferguson testified that he was diagnosed with carpal tunnel
syndrome. Without documentation to support his testimony, however, it
cannot be determined whether an accurate diagnosis was made such that
his injury may be properly considered as proof of harm in the context
alleged here. Dayton's OSHA 200 log for 1991 contains an August entry
which indicates that Mr. Ferguson's right wrist "hurts from regular
work", but there are no subsequent entries in the log indicating a
diagnosis of carpal tunnel syndrome. His condition does not appear in
any of the other relevant injury records in evidence here. Although Mr.
Ferguson testified that electrodiagnostic testing indicated he had
carpal tunnel syndrome, there is nothing in the record to confirm that
his test results were judged to be abnormal (Tr. 1723, 1745).
Accordingly, I am not persuaded on the basis of his testimony alone that
this injury can reliably be considered proof of the harm alleged by the
Secretary.

As indicated /supra/, the plant doctors failed to provide any testimony
regarding specific radial doper injuries and Dr. DeHart's identification
of 30 such injuries cannot be considered reliable for the reasons
discussed above. This remains the case even though Dr. DeHart included
two entries for Mr. Ferguson in his final set of injury data - bilateral
carpal tunnel on July 24, 1992, and carpal tunnel on an illegible date,
also in 1992 (Exhibit C-987).[83] The fact that Mr. Ferguson's condition
was apparently counted twice, coupled with Dr. DeHart's admission that
many of the underlying medical records he reviewed lacked a diagnosis,
makes it impossible to assume that these entries are accurate. Thus,
there is nothing in the record which can properly be considered proof of
actual harm under this instance of violation. Therefore, the Secretary
must establish potential harm and indicate, with some specificity, the
"threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are high lifting frequencies, long periods of standing,
repeated reaches above the shoulder height, and torso flexions. There is
no question that these elements are part of the radial doper job.
Indeed, Dayton itself acknowledges in its job evaluation form for the
radial doper position that standing, lifting, carrying, bending, and
reaching, are all physical elements of this job (Exhibit C-650).

As established /supra/, the Secretary has been unable to prove that long
periods of standing pose potential harm to employees. With regard to the
three remaining activities - lifting, reaching, and bending - the
Secretary has alleged that it is the frequency with which they are
performed that poses the potential for harm.[84] However, as discussed
/supra/, there is nothing in the record which establishes the number of
times these activities must be performed before a hazard is presented.
Moreover, Besser admitted to having difficulty establishing the
frequency of the lifting task because the frequency level depicted on
videotape did not correspond with that supplied by Kearney. This is not
surprising given that all four employee witnesses acknowledged they
control their own work flow simply by the number of tires they place on
the intake conveyor. They also decide the order in which the tires are
lifted from or placed onto the beehive racks, and can stop the conveyor
belts at any time (Tr. 1252-53, 1258-59, 1281-82, 1293-94, 1320,
1349-50, 1705, 1756-59). As such, each radial doper performs these
activities at varying paces, making it difficult to determine with any
degree of certainty the level at which harm may occur. This is
particularly true of the lifting task whose impact, as discussed
/supra/, depends upon the physical exertion of each individual employee.

Even if the Secretary had proven harm here, her case would still fail
the causation element of her burden of proof. As discussed /supra/,
without the proper foundation, neither Besser nor Dr. Schulze are
qualified to attribute the development, potential or actual, of
cumulative trauma disorders among radial dopers to the work activities
alleged to be ergonomic stressors. Moreover, their respective analyses
lack the element which they themselves acknowledge is critical to any
determination of causation: actual injury data. Given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis fails to
reliably assess causation and the plant doctors offered no relevant
testimony regarding the radial doper job. Finally, absent serious
consideration of the various non- occupational sources which the
Secretary's witnesses admit can cause or contribute to the development
of cumulative trauma disorders, the issue of causation cannot be
adequately resolved on this record. Accordingly, the Secretary has
failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance L - Curing Press Operators_*

Under this instance, the citation states in relevant part:

    L) Department #132 - Curing; Curing Press Operator(s) lift tires
    from storage spools and place them on a mandril from which an
    automated arm retrieves them and performs an operation. Ergonomic
    stressors are created during this task such as increased static
    posture times, repeated reaches above shoulder height, frequent
    torso flexions, high lifting frequencies, and high amounts of heat.
    These stressors are consistent with the development of low back pain
    and injury, musculoskeletal injuries, various UECTDs (tendinitis,
    bursitis, swelling, frozen shoulder syndrome), reduction of blood
    flow and excessive fatigue.

One employee testified in connection with this instance: Gladys Joyce
Wilson (Tr. 4200-26). Cure press operators are required to keep the
curing machines loaded with tires (Tr. 4203 ; Exhibit C-962, Segment
starts 1:06:33). Each operator is assigned to 50 machines, each of which
has two floor-level "top hats", the apparatus which holds the tire until
the machine's automated arm retrieves it for processing (Tr. 4206). The
curing press operator walks up and down the concrete aisle along which
her assigned machines are located, filling empty top hats with tires
taken from a nearby beehive rack (Tr. 4204, 4206, 4217-18; Exhibit
C-962). The beehive rack, brought to the work area from the doper
machine, rests on a large rotating disc known as a "turntable" (Tr.
4208). Tires lifted from the upper pins of the rack require the cure
press operator to reach above her shoulders, and tires lifted from the
lower pins of the rack require her to bend (Tr. 4207-09, 4216-17). Each
tire weighs at least 12 to 14 pounds (Tr. 4209-10). According to Ms.
Wilson, it takes about fifteen minutes to load all 100 top hats and each
operator processes about 3,000 tires per 8-hour shift (Tr. 4206- 07,
4209-10, 4217). Other duties performed by cure press operators include
running the curing machines, reporting any malfunctions to the
supervisor and cleaning tires with a wire brush as needed (Tr. 4203,
4207-08). Because the environment in which the cure press operators work
is very hot, plant management provides liquids and fans, which are often
inoperable, and allows workers to take heat breaks every thirty minutes
(Tr. 4204-05, 4219).

Ms. Wilson, who worked as a cure press operator for an unspecified
period of time in 1993, indicated that she began experiencing numbness
in her fingers while at home, particularly in the morning (Tr. 4202-03,
4210, 4219-20). When she visited her personal physician for a routine
check-up, she told him about the numbness in her hand and he ultimately
diagnosed her with carpal tunnel syndrome (Tr. 4211, 4221-22). She also
reported the numbness to her supervisor who sent her to the onsite
clinic where she was offered light duty work, but did not take it, and
was supplied with wrist braces. The plant doctor apparently thought she
had tendinitis (Tr. 4211-12, 4222-23). Ms. Wilson also testified that
she experienced pain in her leg and back, while working the cure
presses, both of which she reported to her supervisor, but was not sent
to the onsite clinic (Tr. 4212, 4214-15, 4220-21, 4224). She indicated
that she treated these pains with over-the-counter medication (Tr.
4212-13, 4215).[85]

Mr.Besser identified frequent lifts, frequent torso flexions, frequent
overhead reaches, continuous periods of walking, and high heat as the
stressors that the Secretary associated with this job (Tr. 6110 ;
Exhibit R-5586 at 37). In his report, he associated torso flexions and
overhead reaches with conditions such as low back injury and frozen
shoulder syndrome (Exhibit R-5586 at 38). According to Besser, the
continuous walking required of the curing press operator fatigues the
employee, making her more susceptible to the development of
musculoskeletal injury (Exhibit R-5586 at 41). His report also states
that the high heat in this department reduces blood flow to the muscles,
producing excessive fatigue and making employees more susceptible to
acute and chronic injury (Exhibit R-5586 at 41). Finally, using the 1981
NIOSH guidelines and assuming a frequency rate of 9 lifts per minute,
Besser analyzed the tire lifting task and concluded that the 18 to 37
pound load lifted exceeds the action limit of ten pounds (Tr. 6111;
Exhibit R-5586 at 39-40).[86]

The plant doctors provided no specific testimony regarding the curing
press operator job and the stressors alleged to be associated with it.

As evidence of actual injury, the Secretary relies upon Ms. Wilson's
testimony that she was diagnosed with carpal tunnel syndrome and has
suffered from pain in her legs and back (Secretary's Brief at 98).
However, Ms. Wilson's only diagnosed condition does not appear in any of
the relevant injury records in evidence here nor is it recorded in the
OSHA 200 log for 1993. Without such documentation, it cannot be
determined whether an accurate diagnosis was made of Ms. Wilson's
condition such that it may be considered proof of harm in the context
alleged. None of the plant doctors testified about any specific injuries
suffered by cure press operators and Dr. DeHart's identification of 17
such injuries remains unreliable for the reasons discussed /supra/. In
fact, Ms. Wilson's injury does not even appear in Dr. DeHart's final set
of injury data (Exhibit C-987). As such, there is nothing in the record
which can be considered proof of actual harm under this instance of
violation. Therefore, the Secretary must establish potential harm and
indicate, with some specificity, the "threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are increased static posture times, repeated reaches above
shoulder height, frequent torso flexions, high lifting frequencies, and
high amounts of heat. There is no question that these elements are part
of the curing press operator job. Indeed, Dayton itself acknowledges in
its job evaluation form for the curing press operator that bending,
carrying, lifting, reaching, standing are all part of the job's physical
activities (Exhibit C-651). Under work conditions, the form also lists
"presence of heat and humidity" (Exhibit C-651).

As was the case with the tuber operator job, the Secretary has failed to
prove that the high heat experienced in the curing department may harm
employees in the context alleged here. Indeed, Dr. Schulze specifically
linked the high temperatures to conditions, such as heat stress and heat
prostration, that are completely unrelated to cumulative trauma.
Furthermore, his contention, together with Besser, that heat causes
fatigue in an employee such that injury becomes more likely is simply
too tenuous to sustain a claim of potential harm.

With the exception of high static posture times, the remaining stressors
- reaching, bending at the torso, and lifting - all rely upon the
Secretary's ability to prove that the frequency with which these tasks
are performed creates the potential for harm. But as indicated /supra/,
the record fails to definitively indicate the point at which these
activities become hazardous. This is particularly true of the lifting
task whose impact, as discussed /supra/, depends largely upon the
physical exertion of each individual employee.

Though worded awkwardly, "increased static posture times" suggests that
the Secretary's concern, as was the case with "long periods of static
posture", is with the length of time the cure press operator assumes a
particular posture. However, there is nothing in the record to indicate
a definitive amount of time at which a "static posture" becomes harmful,
nor is it clear what constitutes a "static posture" in the context of
this particular job since neither Dr. Schulze nor Besser identified this
activity as an ergonomic stressor in their respective analyses.

Even if the Secretary had proven harm here, her case would still fail
the causation element of her burden of proof. As discussed /supra/,
without the proper foundation, neither Besser nor Dr. Schulze are
qualified to attribute the development, potential or actual, of
cumulative trauma disorders among cure press operators to the work
activities alleged to be ergonomic stressors. Moreover, their respective
analyses lack the element which they acknowledge is critical to any
determination of causation: actual injury data. Given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis fails to
reliably assess causation and the plant doctors offered no relevant
testimony regarding the curing press operator job. Finally, absent
serious consideration of the various non- occupational sources which the
Secretary's witnesses admit can cause or contribute to the development
of cumulative trauma disorders, the issue of causation cannot be
adequately resolved on this record. Accordingly, the Secretary has
failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance N - Final Inspectors_*

Under this instance, the citation states in relevant part:

    N) Department #133 - Final Inspection; Tire Final Inspector(s)
    retrieve tires from a roller conveyor and places it on a work stand
    where it is inspected for defects. Ergonomic stressors are created
    during this task such as increased static posture, shoulder and
    upper arm stresses, and back injury.[87] These stressors are
    consistent with the development of musculoskeletal injuries,
    tendinitis, bursitis, generalized fatigue, and weakening of the
    spinal structure.

Two employees testified in connection with this instance: Shirley Ann
Cooks (Tr. 2857-2967) and Nora McCuin (Tr. 2998- 3047). Final tire
inspectors are responsible for inspecting tires for defects (Tr. 3002;
Exhibit C-962, Segment starts at 1:18:34). This is accomplished by
performing a series of steps to visually and manually check the entire
surface area of the tire (Tr. 2887). Tires enter the inspection area
from the curing department on a conveyor belt positioned behind the tire
inspector (Tr. 2889, 3003). Two inspectors are assigned to each line or
belt (Tr. 3019). Each tire is first lifted from the conveyor belt and
laid flat on the inspection stand. The inspector runs a hand around the
tire's bead to check for defects, then flips the tire over and repeats
the process (Tr. 2879-80, 2891-92, 2901-03, 2910-11, 2934-36, 3004-05,
3011- 12).[88] Lifting the tire requires the inspector to use arms and
shoulders, particularly if the tire is large, and manually inspecting
the tire requires the use of the inspectors shoulders (Tr. 2903-04,
2906, 3012-13).

The tire is then set upright onto a roller built into the inspection
stand and operated with a floor pedal. As the tire spins on the roller,
it is supported by the inspector's hand as she/he feels along the
surface of the tire for defects (Tr. 2879- 80, 2886-87, 2892-94,
2936-37, 3013-14). In doing so, Ms. Cooks testified that her shoulders
are not straight since the shoulder which corresponds with the foot
operating the floor pedal is positioned lower than the other (Tr. 2894,
2900). While supporting the tire and manually inspecting its surface,
the inspector's upper arm is also raised (Tr. 2895, 2900).

If defects are found, the inspector must decide whether the tire can be
repaired or should be rejected, mark it accordingly with chalk, and
place it onto the appropriate conveyor belt (Tr. 2906-07, 2909, 3008).
Inspectors also perform minor tire repairs, such as trimming the bead of
a tire with a hand held tool or knife (Tr. 2880, 2895, 3014-15). Ms.
Cooks testified that her shoulder may be positioned downward and force
may be used when trimming the bead of a tire (Tr. 2896, 2899). Tires
that are found to be acceptable are placed onto a conveyor belt which
leads to the sorting department. The tires are pushed off by the
inspector onto the belt requiring the inspector to elevate arms and use
force (Tr. 2899-2901, 3002, 3014-16). The inspector uses arms and
shoulders to place rejected tires onto a low-level conveyor belt (Tr.
2906-07). Tire inspectors are required to process between 964 and 995
tires per 8-hour shift (Tr. 2877, 2908, 3003-04). According to Ms.
McCuin, the largest tire handled by an inspector weighs about 40 pounds
(Tr. 3016-17).

Ms. Cooks, who became a tire inspector in 1993, testified that since
1985, she has suffered from a range of injuries to various parts of her
body, including her back, shoulder, nose, knee, and foot (Tr. 2860-61,
2924, 2926-31, 2941, 2944-45, 2948- 50).[89] As a tire inspector, she
aggravated a preexisting shoulder injury while pulling tires from the
inspection stand (Tr. 2924-25). Ms. Cooks reported the injury to her
supervisor and was sent to the onsite clinic where she was treated with
medication and assigned to light duty work (Tr. 2925-26). Generally, Ms.
Cooks experienced pain in her wrists, arm, elbow, shoulder, back, and
neck while working as a tire inspector but never reported this to her
supervisor because of her extensive prior injury history (Tr. 2938-40,
2952-53, 2963). Ms. Cooks testified that she suffered an injury outside
of work to her left arm in 1992 or 1993 (Tr. 2959-60).

Ms. McCuin, who worked as a tire inspector from 1992 to 1994, testified
that since 1987, she has suffered injuries to her shoulder, neck, chest,
hip, and back (Tr. 3001-02, 3020-27 ).[90] In 1989, and again in 1991,
torn ligaments in her right shoulder required surgery on two separate
occasions, as well as time off from work and restrictions on her lifting
activities (Tr. 3020- 23, 3025-26). When she first started working as a
tire inspector, Ms. McCuin was restricted to lifting no more than ten
pounds of weight. After a reevaluation of her condition, however, her
offsite physician raised this limit to thirty pounds (Tr. 3027-29).
Although she indicated that she has experienced no further problems with
her shoulder since becoming a tire inspector, she acknowledged feeling
pain in her arms and shoulders, particularly on the right side, from the
lifting associated with the job (Tr. 3029, 3036-39). While working as a
tire inspector in 1992, Ms. McCuin fell while on her way the
supervisor's office injuring her right hip and back, and in 1993,
suffered an injury to her left foot (Tr. 3027, 3029, 3047).[91]

Mr. Besser identified frequent reaches, lifting, torso flexions,
twisting, and long periods of standing as stressors which the Secretary
associated with this job (Tr. 6111-13 ; Exhibit R-5586 at 45). He
testified that the frequent reaches performed by the inspector stress
the upper arm and shoulder and are consistent with the development of
bursitis and tendinitis (Tr. 6113; Exhibit R-5586 at 45). In his report,
Besser also stated that frequent lifts cause upper body strain and
generalized fatigue, while repetitively twisting the torso is consistent
with the development of back injury (Exhibit R-5586 at 45). His report
does not contain a lifting analysis for this job.[92]

Neither the plant doctors nor Dr. Hadler provided specific testimony
regarding the final tire inspector job or the stressors alleged to be
associated with it.

As evidence of actual injury, the Secretary relies upon the testimony of
both tire inspectors who testified at the hearing (Secretary's Brief at
104-05). Specifically, the Secretary cites Ms. Cooks' testimony that she
was diagnosed with carpal tunnel syndrome in 1986, and Ms. McCuin's
testimony that she suffered a torn ligament in her right shoulder.
However, Ms. Cooks' injury did not occur while she was employed as a
tire inspector since, as her testimony indicates, she was assigned as
tire inspector during 1993 (Tr. 2926-28). Moreover, the only relevant
injury which Ms. Cooks apparently suffered while working as a tire
inspector was the aggravation of a prior shoulder injury with a long
recurrent history, raising serious questions as to whether the condition
can be attributed to her work as an inspector. There is also no
indication that Ms. McCuin's shoulder injury occurred at a time when she
was employed as a final tire inspector. She apparently experienced pain
in her arms and shoulder from lifting tires, but there is no
definitively diagnosed condition.[93] Finally, none of these conditions
appear in any of the relevant injury records submitted into evidence here.

None of the plant doctors testified as to any specific injuries suffered
by final tire inspectors and Dr. DeHart's identification of 24 such
injuries remains unreliable for the reasons discussed /supra/. In fact,
neither Ms. Cook nor Ms. McCuin appear in Dr. DeHart's final set of
injury data (Exhibit C-987). As such, there is nothing in the record
which can properly be considered proof of actual harm under this
instance of violation. Therefore, the Secretary must establish potential
harm and indicate, with some specificity, the "threshold" at which
injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are increased static posture, shoulder stresses, and upper arm
stresses. However, it is not clear from the record how these conditions
actually relate to the final tire inspector job. According to Dr.
Schulze, "increased static posture" does not refer to the standing
required of the inspector, but to the use of the foot pedal to operate
the tire roller (Tr. 3441-43). Besser, on the other hand, does not
identify static posture as a stressor of this job, focusing instead on
long periods of standing. Similarly, as cited, "shoulder and upper arm
stresses" are not necessarily activities which an inspector performs,
but are essentially the result of some unnamed activity. Besser
concluded that the frequent reaches which an inspector performs to
access tires stresses the shoulder and upper arm. Dr. Schulze, however,
associated these "stresses" with the tire flipping task and claimed that
only inspectors who are shorter in height will experience them (Tr.
2037). With no consensus on the record as to what these vague activities
may refer to or how they constitute ergonomic stressors, the Secretary
has failed to adequately identify what aspect of this job she believes
to be hazardous.

Even if the Secretary had proven harm here, her case would still fail
the causation element of her burden of proof. As discussed /supra/,
without the proper foundation, neither Besser nor Dr. Schulze are
qualified to attribute the development, potential or actual, of
cumulative trauma disorders among final tire inspectors to the work
activities alleged to be ergonomic stressors. Moreover, their respective
analyses lack the element which they acknowledge is critical to any
determination of causation: actual injury data. Given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis fails to
reliably assess causation and the plant doctors offered no relevant
testimony regarding the tire inspector job. Finally, absent serious
consideration of the various non-occupational sources which the
Secretary's witnesses admit can cause or contribute to the development
of cumulative trauma disorders, the issue of causation cannot be
adequately resolved on this record. Accordingly, the Secretary has
failed to prove that any of the work activities alleged under this
instance of violation are likely to cause injury to the employees who
perform them.

*_Instance P - Module Operators_*

Under this instance, the citation states in relevant part:

    P) Department #133 - Final Inspection; Module Operator(s) inspecting
    tires, placing labels, and stacking tires on racks were exposed to
    ergonomic stressors such as frequent elevated and extended reaches,
    long periods of standing, and repetitive actions. These stressors
    are consistent with the development of musculoskeletal injuries,
    UECTDs (tendinitis, bursitis, rotator cuff problems), and low back
    injuries.

Three employees testified in connection with this instance: Mary Almeda
Parks (Tr. 2760-2854); Steven E. Dyer (Tr. 4226-56); and Rebecca Tomlin
(Tr. 4898-4941). Module operators are primarily responsible for loading
and unloading the module machine with tires (Tr. 4232, 4256 ; Exhibit
C-962, Segment starts at 1:27:34). The module operator loads tires from
a pallet onto an intake conveyor belt then walks around the machine to
unload the tires from a conveyor belt on the other side (Tr. 2788-89,
2792, 4233, 4239-40). When loading the module machine, the operator must
reach to lift tires from the top of the pallet stack, then turn to place
the tire onto the conveyor belt (Tr. 2792-94, 4240). When unloading the
machine, the operator must lift the tire from the conveyor belt and
place it on a pallet. For tires at the bottom of a stack, the operator
has to bend, and for tires at the top of the stack, the operator has to
reach (Tr. 2777, 2779-80, 4237-38). Ms. Parks indicated that sometimes
the operator must reach to pull a finished tire off of the conveyor belt
when there are no other tires behind it to push it along (Tr. 2781).

Before removing a finished tire from the waist-high conveyor belt, the
module operator marks it with a stamp and places a label on the tire's
tread (Tr. 2773, 2782-83 , 4232, 4236). Each tire is stamped at least
once, while defective tires are stamped twice (Tr. 2782-83, 4236). Each
finished tire is stacked onto an elevated pallet located behind the
operator on a rotating turntable. The tires are usually stacked on the
pallet in piles over five feet high (Tr. 2777-79, 2783-84, 4237,
4239-40). As each corner of a pallet is filled or emptied, the module
operator uses force to spin the pallet around on its turntable to access
the next section on the pallet (Tr. 2783-84). Defective tires are
stacked onto a separate pallet designated for the classifying department
(Tr. 2786, 2788, 4253-54). Each pallet holds up to 50 tires (Tr.
2778-79, 4237). Module operators are required to process anywhere from
500 to 800 tires per 8-hour shift and the tires range in weight from 25
to 40 pounds (Tr. 2771-72, 2778, 2790, 2796, 4233-36). According to Mr.
Dyer, 65% of his 8-hour shift was spent loading and unloading the module
machine with tires (Tr. 4255).

Other duties performed by module operators include keeping track of the
different sizes of tires being run, operating the module machine from a
control panel, reporting to management any problems with the machine,
unjamming the machine, obtaining new tread labels and threading them
into the label dispenser, cleaning paint nozzles and the marking stamp,
and hand grinding tire imperfections as necessary (Tr. 2791, 2799-2800,
2840-43, 4248-52). Module operators are also required to adjust and
"change" the module machine for each size of tire processed. Adjustments
are made three or four times per shift, while the various changes are
performed anywhere from once or twice a week to daily (Tr. 2772,
2798-99, 2831-33, 2839-40, 4233). Module operators perform all of their
duties while standing on a concrete floor (Tr. 2772, 2833 ).

Ms Parks testified that she worked as a module operator from 1987 to
1990 and for unspecified periods of time after that as a relief module
operator (Tr. 2767-69). According to her testimony, she has suffered
multiple injuries to her back and wrist as a Dayton employee. In 1991,
while working as a module operator, she experienced numbness and pain in
her arm and wrist after lifting large tires (Tr. 2810-12, 2824-25,
2836-37). Although Ms. Parks reported the injury to her supervisor, she
was not sent to the onsite clinic but visited the clinic on her own
initiative (Tr. 2812-13, 2825-26). The plant doctor gave her medication
placed wrist splints on her arms and assigned her to two weeks of light
duty work (Tr. 2813-15). In 1992, Ms. Parks suffered a back injury when
she slipped on a tire label and fell (Tr. 2802-05, 2809). She reported
the injury to her supervisor and because it occurred during the
graveyard shift, was sent to an offsite facility where she was treated
with medication (Tr. 2805-06). The following day Ms. Parks visited the
onsite clinic, was treated with medication, and remained out of work for
at least three months (Tr. 2807-08). Ms. Parks reinjured her back in
December of 1992 while working as a sorter, and at some unspecified time
while working as a module operator. She also reinjured her wrist in May
of 1993 while working in repair (Tr. 2818-21, 2836-37). According to her
testimony, she is permanently restricted to lifting no more than 25
pounds (Tr. 2770, 2826-27).

Mr. Dyer, who worked as a module operator for an unspecified period of
time which included May of 1993 testified that while working in this
position in 1990 or 1991, he was diagnosed with a ganglion cyst on his
left wrist (Tr. 4230, 4242-43). He was treated at the onsite clinic with
wrist braces and assigned to light duty work (Tr. 4242). According to
Mr. Dyer, the cyst manifests itself when he is working and swells
whenever he moves it a certain way. He stated that the wrist continues
to be painful (Tr. 4243, 4248). As a module operator in 1993, he was
placed on light duty after suffering a double hernia which he claims
occurred while lifting tires (Tr. 4243-47). Mr. Dyer has also suffered
sprains to his left ankle and right wrist due to slipping (Tr. 4242,
4247-48, 4254). Finally, Mr. Dyer indicated that he shattered his knee
cap while playing softball in 1974 when he was serving in the military
(Tr. 4228, 4247).

Ms. Tomlin testified that she worked as a module operator for seven
years until November of 1992 at which time she suffered an injury to her
right ankle and foot while walking around a module machine (Tr. 4901,
4904, 4924, 4927-28, 4930). She reported the injury to her supervisor
and was sent by the plant doctor to an offsite facility where she was
diagnosed with a fractured heel (Tr. 4928-30, 4936). She also apparently
had a benign growth removed from her ankle (Tr. 4939). Ms. Tomlin wore a
cast for several weeks and has been unable to return to work (Tr.
4929-30). She claims she was told by one of the seven physicians who has
treated her that the bones in her foot were deteriorating due to the
hard surfaces on which she walks (Tr. 4930-31, 4936-38, 4941). A workers
compensation claim was filed in connection with this condition (Exhibit
C-956). Ms. Tomlin states that she lives on a sixty-acre farm and shares
farming duties with her husband (Tr. 4939-40).[94]

Mr. Besser identified elevated and extended reaches, repeated lifting,
and long periods of standing as the stressors which the Secretary
asserts are associated with this job, but added torso flexions with
twists to the list (Tr. 6115; Exhibit R-5586 at 47-48). His report
indicates that the reaches, torso flexions, and lifts performed by the
module operator are consistent with the development of low back injuries
and shoulder ailments such as tendinitis, bursitis, and rotator cuff
problems (Exhibit R-5586 at 47).[95] Neither the plant doctors nor Dr.
Hadler provided specific testimony regarding the module operator job or
the stressors alleged to be associated with it. As evidence of actual
injury, the Secretary relies upon the testimony of all three module
operators who testified at the hearing (Secretary's Brief at
110-15).[96] According to Ms. Parks' testimony, the pain and numbness
which she experienced in her wrist while working as a module operator
was never actually diagnosed and her condition is not documented in any
of the relevant injury records submitted into evidence here.[97] Mr.
Dyer indicated that he was diagnosed with a ganglion cyst while working
as a module operator, but his condition is also not documented in any of
the relevant injury records submitted into evidence here.[98] Without
underlying documentation to support his claims, it cannot be determined
whether an accurate diagnosis was made such that his injury may be
properly considered as proof of harm in the context alleged.[99]
Finally, while Ms. Tomlin offered compelling testimony regarding the
injuries she incurred to her right foot and ankle, there is no
indication in the record that her conditions - a fractured heel, a
benign growth, and "deteriorating bones"- can be considered injuries of
the type alleged under this citation instance.[100] That her injuries
were the subject of corresponding claim for workers compensation does
not alter this fact. See discussion, /supra/. Thus, none of the injuries
to which these module operators testified provide adequate proof of
actual harm.

The plant doctors provided no specific testimony regarding module
operator injuries and Dr. DeHart's identification of 26 such injuries
remains unreliable for the reasons discussed /supra/. As such, there is
nothing in the record which can properly be considered proof of actual
harm under this instance of violation. Therefore, the Secretary must
establish potential harm and indicate, with some specificity, the
"threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent elevated and extended reaches, long periods of
standing, and repetitive actions. It has been previously established
that the Secretary is unable to identify the point at which standing and
reaching - be it elevated, extended, and/or frequent - pose the
potential for harm. As for the vague "repetitive actions", it is simply
not clear from the record what type of conduct the Secretary has
identified as hazardous. Module operators perform many actions
repetitively. For instance, every tire a module operator handles is
labeled, then stamped at least once (Tr. 2782-83, 4236). When questioned
about the meaning of this generic phrase, Dr. Schulze reasoned, in
somewhat circular fashion, that it refers only to those activities
performed repetitively which constitute ergonomic stressors, such as
lifting, reaching, and bending (Tr. 2055-59, 3460-64). This is simply
not clear from the citation nor is it consistent with the citation as a
whole. Where the Secretary has alleged that repetitive lifting or
bending poses a hazard to Dayton employees, she has specifically
indicated as much under previous citation instances. Even Besser was
confused as to how to determine what repetitive actions this phrase
refers to, indicating that he would not have used this terminology had
he drafted the citation (Tr. 6116-20). This is not what the Commission
contemplated when it held that the Secretary must define a hazard
alleged under the general duty clause in a way that "apprises the
employer of its obligations." /Pelron Corp/, 12 BNA at 1835. Leaving it
to an employer to guess what citation language means or does not mean
does not constitute adequate notice of the violations with which it has
been charged.

Even if the Secretary had proven a hazard, her case would still fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among module operators to the work activities alleged to be
ergonomic stressors. Moreover, their respective analyses lack the
element which they acknowledge is critical to any determination of
causation: actual injury data. None of the plant doctors offered
relevant testimony regarding the module operator job and given its
numerous flaws, reviewed /supra/, Dr. DeHart's incident rate analysis
fails to reliably assess causation. In fact, his relative risk analysis
under this particular instance suggests that there is no significant
difference between the Dayton injury rate for module operators and the
national tire industry injury rate. According to Dr. DeHart's testimony,
as the relative risk approaches one, the population groups being
compared can be said to have equivalent rates of injury. The relative
risk in this instance was calculated to be 1.04 (Tr. 5291-92). Finally,
absent serious consideration of the various non-occupational sources
which the Secretary's witnesses admit can cause or contribute to the
development of cumulative trauma disorders, the issue of causation
cannot be adequately resolved on this record. Accordingly, the Secretary
has failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance Q - Classifiers_*

Under this instance, the citation states in relevant part:

    Q) Department 133 - Final Inspection; Classifier(s) sorting tires
    and entering codes into a computer were exposed to ergonomic
    stressors such as increased static posture times, repetitive
    movements, increased torso flexion, stress on the shoulder, low back
    and abdominal muscles, forearm or wrist injury and extended periods
    of standing.[101] These stressors are consistent with the
    development of musculoskeletal injuries, low back injuries, muscle
    strains, pulls, herniations, tendon strain, tendinitis, nerve
    injuries, restriction of blood flow, and varicose veins.

One employee testified in connection with this instance: Russell James
Wernli (Tr. 3971-4019). Classifiers are primarily responsible for
examining defective tires and determining whether they can be repaired,
should be scrapped, or are acceptable (Tr. 3977; Exhibit C-962, Segment
starts 1:31:04). Two classifiers are assigned to each line, splitting
their time between the front end of the work station and the back end
(Tr. 3994, 4013-15). One classifier loads tires from a pallet onto a
conveyor belt at the back end of the work station (Tr. 3993). The tires
are lifted from stacks as high as six feet (Tr. 4011-12). Once the belt
is full, the second classifier examines each tire at the front end of
the work station and enters the defect information written on the
outside of the tire into a computer; there are 75 defect classifications
(Tr. 3993, 3979, 3995). Mr. Wernlii testified that every tire that comes
down the line must be spun around in order to access the information
that must be entered into the computer (Tr. 3989-90). Mr. Wernli
testified that he uses his forearms, hands, and wrists to flip a tire.
He indicated, however, that each classifier performs this task
differently (Tr. 3990, 4016-17). Classifiers are also required to cover
any minor imperfections on the tires with paint (Tr. 3991). When
possible, the classifier assigned to the back end will help the front
end classifier enter the defect information into the computer (Tr.
4013-14).

The classifier then lifts the tire and places it in the designated area
for its classification. For instance, tires to be sent to repair are
stacked in piles of four on a conveyor belt. If the belt is full, the
tires are placed onto a pallet (Tr. 3986-87). Tires to be scrapped are
placed on pallets located behind the computer (Tr. 3986). If a conveyor
belt is full, the classifier may have to toss or throw tires into a
designated area until a pallet becomes available to load (Tr. 3990-91).
When stacking tires onto a pallet, classifiers must reach above their
shoulders (Tr. 3992). There is no quota specified for this job but each
classifier handles about 1,000 to 1,200 tires per 8-hour shift (Tr.
3976, 3994, 4015). The tires range in weight from less than one pound to
thirty pounds (Tr. 4011). All job duties are performed while standing
(Tr. 3995- 96).

Mr. Wernli has worked in the tire inspection department for about ten
years and since February of 1993, has been working as a classifier (Tr.
3973-74, 3987, 4008). Upon assuming this job, he injured his back and in
January of 1994, he suffered a tear in his shoulder muscle (Tr. 3981-82,
3998, 4006-08). The back injury was recorded in Dayton's OSHA 200 log
for 1993 (Exhibit C- 673). Mr. Wernli has also suffered back strains
while at home but indicated that his work did not make these injuries
worse (Tr. 3982, 3986, 4017-18). He testified that he was on a bowling
league while in the Marines thirty years ago and has been a past
participant in various sports activities (Tr. 3972, 4018).[102]

Mr. Besser identified frequent lifting and throwing of tires, torso
flexions, and long periods of standing as the stressors which the
Secretary associated with this job (Tr. 6126-27; Exhibit R-5586 at
48-51). He testified that throwing tires places stress on the
classifier's shoulder, low back and abdominal muscles that is consistent
with the development of strains, pulls, and herniations (Tr. 6127-28;
Exhibit R-5586 at 50-51). In his report, Besser also stated that
frequent torso flexions while holding a tire increases the hazard of low
back injury (Exhibit R-5586 at 49). Finally, using the 1981 NIOSH
guidelines and assuming a frequency rate of 5 lifts per minute, he
analyzed the tire lifting task and concluded that the 20 to 28 pound
weight lifted exceeds, in some cases, the action limit of 25 pounds
(Exhibit R-5586 at 49-50).[103] Among the plant doctors, Dr. Smith-Horn
specifically testified that she never treated any classifiers during her
tenure at Dayton, while the other doctors made no mention of the
classifier job (Tr. 4407-08).

As evidence of actual injury, the Secretary relies upon the testimony of
Mr. Wernli that he suffered a back injury and tear in his shoulder
muscle while working as a classifier (Secretary's Brief at 120-21).
According to Mr. Wernli's testimony, however, the shoulder injury
occurred in January of 1994 and is, therefore, outside the scope of the
citation. With regard to his back injury, neither Mr. Wernli nor the
relevant OSHA 200 log entry provides a specific diagnosis for his
condition. The injury is not documented in any of the relevant injury
records submitted into evidence here. Moreover, Mr. Wernli admitted that
he has suffered back strains outside of work raising serious questions
about the cause of any back injury he may have sustained. Under these
circumstances, it cannot be determined whether his injury may be
considered proof of actual harm as alleged by the Secretary. As
indicated, none of the plant doctors provided testimony regarding
specific injuries suffered by classifiers, and Dr. DeHart's
identification of four such injuries cannot be considered reliable for
the reasons discussed /supra/. Indeed, Mr. Wernli does not appear in Dr.
DeHart's final set of injury data (Exhibit C-987). Therefore, the
Secretary must establish potential harm and indicate, with some
specificity, the "threshold" at which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are increased static posture times, repetitive movements,
increased torso flexion, stress of the shoulder, low back and abdominal
muscles, and extended periods of standing. It has been established that
the Secretary is unable to identify the point at which standing and
bending pose the potential for harm. Although Dr. Schulze initially
equated "increased static posture times" with standing in front of the
conveyor, on cross- examination, he denied that this phrase is
synonymous with standing constantly and failed to explain exactly what
it means in the context of this job (Tr. 2029, 3469-70; Exhibit C-628 at
136). Indeed, it would seem redundant for the Secretary to allege both
standing and static posture as separate stressors associated with this
job if the latter encompasses the former. Similarly, as discussed
/supra/, the "stress" which a classifier allegedly experiences on his
shoulder, back, and abdominal muscles, is not an activity which the
classifier performs, but the /result/ of some unidentified activity.
According to Besser, it is the frequent tire throws which a classifier
must perform which /stress/ these areas of the body; however, this
activity has not been identified as a stressor in the citation. With no
consensus on the record as to what the alleged activities or conditions
refer to or how they constitute ergonomic stressors, the Secretary has
failed to identify the aspects of this work activity which she believes
to be hazardous.

Finally, the phrase "repetitive movements" creates the same problems for
the Secretary as the phrase "repetitive actions" alleged under the
previous citation instance. Classifiers perform a variety of movements
repetitively. For instance, the defect information written on every tire
a module operator handles must be entered into a computer. Dr. Schulze
reiterated that this phrase refers to those activities which a
classifier performs repetitively such as lifting, tire flipping, wrist
deviations, and torso flexions (Tr. 3464-67). However, this is simply
not clear from the citation nor is it consistent with the citation as a
whole. Where the Secretary has alleged that repetitive lifting or
bending poses a hazard to Dayton employees, she has specifically
indicated as much under previous citation instances. Indeed, Besser
again stated that had he drafted the citation he would have specifically
identified the repetitive movements at issue (Tr. 6127). As indicated
/supra/, leaving it to an employer to guess what citation language means
or does not mean does not constitute adequate notice of the violations
with which it has been charged. /See Pelron Corp/, 12 BNA at 1835
(hazard alleged under general duty clause must be defined in a way that
"apprises the employer of its obligations").

Even if the Secretary had proven harm here, her case would fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among classifiers to the work activities alleged to be
ergonomic stressors. Moreover, their respective analyses lack the
element which they acknowledge is critical to any determination of
causation: actual injury data. None of the plant doctors offered
relevant testimony regarding the classifier job and given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis fails to
reliably assess causation. In fact, he admitted that the injury incident
rate he calculated for the classifiers took into consideration injuries
that are related to stressors not alleged in the citation (Tr. 5556-60).
Finally, absent any consideration of the various non-occupational
sources which the Secretary's witnesses admit can cause or contribute to
the development of cumulative trauma disorders, the issue of causation
cannot be adequately resolved on this record. Accordingly, the Secretary
has failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance R - Verifiers_*

Under this instance, the citation states in relevant part:

    R) Department 791 - Warehouse; Verifier(s) pulling carts to
    different sections of the warehouse were exposed to ergonomic
    stressors such as increased pull force, which is consistent with the
    development of injuries to the elbow, shoulder, and ankle.

One employee testified in connection with this instance: Stephen Michael
Pennington (Tr. 3759-3821). Verifiers are primarily responsible for
pulling large, wheeled carts carrying pallets of tires to the
appropriate trucking bay for loading (Exhibit C-962, Segment starts
1:34:40). Before pulling the carts to a designated area, the verifier
checks a manifest sheet in order to ensure that each tire cart
corresponds to a given customer order and is loaded into the correct
truck. This requires the employee to count the number of tires per
pallet (Tr. 3765, 3776, 3804-06). Depending upon the size of the tire, a
full pallet can hold anywhere from 16 to 50 tires (Tr. 3766- 69). The
individual tires range in weight from 15 to 71 pounds and the total
weight of a full tire cart ranges from 1350 to 1560 pounds (Tr. 3768-69,
3770-71). Over an 8-hour shift, a verifier pulls anywhere from 30 to 50
carts per truck, for a total of six trucks (Tr. 3771, 3810-12, 3779).

According to Mr. Pennington, the cart-pulling process generally involves
grabbing the cart's handle with both hands, dropping his weight back to
get the cart to start moving, then turning and pulling with one arm. He
also indicated that he uses his legs and shifts his weight to pull a
cart (Tr. 3780-81, 3802-03). Mr. Pennington testified that the carts are
generally in poor condition and do not roll well (Tr. 3780-81). As a
result, the pulling process varies as to whether one or two hands are
used depending upon the cart's rolling capability (Tr. 3802- 03). The
furthest distance that a verifier may have to pull a tire cart is 60
feet (Tr. 3779, 3814). The verifier may also have to pull and shift the
carts around in order to access the one which corresponds to a given
order (Tr. 3776-78; Exhibit C-970). Once pulled to the appropriate door,
the verifier throws a tire on top of the cart so that the truck loaders,
known as "lumpers", are aware the cart has been "verified" (Tr. 3796).

Mr. Pennington, who became a verifier in 1993, testified that he
developed a tight burning sensation underneath his shoulder blade while
pulling carts near the end of a shift, a condition which he described as
a pulled muscle (Tr. 3782-83, 3786-89, 3815, 3818). The injury grew more
painful after he returned home from work, and he reported his condition
to his supervisor the following morning. He was treated at the onsite
clinic with medication and assigned to light duty work for a few days
(Tr. 3783-86, 3789-90, 3818-19). Mr. Pennington suffered a prior
shoulder and back injury in 1990 when he was pinned against a wall by a
pallet of tires (Tr. 3814-15).[104]

Mr. Besser identified forceful force exertions to haul carts as the
stressor associated with this job (Tr. 6130; Exhibit R-5586 at 51-52).
He admitted, however, that he did not know the force required to pull
the cart (Tr. 6130-31). Based on the frequency with which a verifier
must exert force to move the carts, Besser concluded that this task is
hazardous to the elbow, shoulder, and ankle (Exhibit R-5586 at 52).[105]

As evidence of actual injury, the Secretary relies solely upon Mr.
Pennington's testimony that he suffered a pulled muscle in his shoulder
(Secretary's Brief at 125). Without underlying documentation, however,
it cannot be determined whether this condition was accurately diagnosed
such that it may be properly considered as proof of harm in the context
alleged. Indeed, Mr. Pennington's shoulder injury does not appear in any
of the relevant injury records submitted into evidence here.[106]
Furthermore, given his prior injury history, it is not clear whether Mr.
Pennington's injury can be attributed to his verifier duties. As
indicated, the plant doctors provided no specific testimony regarding
verifier injuries and Dr. DeHart did not review this job as part of his
analysis. Thus, without proof of actual harm, the Secretary must
establish potential harm and indicate, with some specificity, the
"threshold" at which injury may occur.

The only ergonomic stressor alleged by the Secretary to be associated
with this job is "increased" pull force. However, the Secretary has
failed to indicate the level of "pull force" at which the potential for
injury develops or why the phrase "pull force" is modified by the word
"increased." Although Dr. Schulze provided a measurement of the average
force which he claims is required to move a cart, he was unable to
explain the significance of this amount and did not know how much the
carts he measured actually weighed. Dr. Lundy provided no information
whatsoever regarding the force measurement which he obtained and Besser,
with no information regarding the work activity, was unable to make any
definitive conclusions regarding the alleged hazard. Without proof of
how much force is "too much force", the Secretary has not established
that this alleged activity is hazardous to the employees who perform it.

Even if the Secretary had proven harm here, her case would fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among verifiers to increased pull force. Moreover, their
respective analyses lack the element which they acknowledge is critical
to any determination of causation: actual injury data. None of the plant
doctors offered relevant testimony regarding the classifier job and Dr.
DeHart did not evaluate this job under his relative risk analysis.
Finally, absent serious consideration of the various non-occupational
sources which the Secretary's witnesses admit can cause or contribute to
the development of cumulative trauma disorders, the issue of causation
cannot be adequately resolved on this record. Accordingly, the Secretary
has failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_Instance S - Mold and Bladder Changers_*

Under this instance, the citation states in relevant part:

    S) Department #132 - Curing; Mold and Bladder Changer(s) performing
    maintenance and replacement functions on tire curing presses were
    exposed to ergonomic stressors such as frequent arm abductions,
    torso flexions, extended and elevated reaches, forceful hand grips,
    long periods of standing, lifting, high heat, and vibrations. These
    stressors are consistent with the development of musculoskeletal
    injuries, low back injury, excessive fatigue, and UECTDs (carpal
    tunnel syndrome).

Two employees testified in connection with this instance: Don Perkes
(Tr. 3904-53) and Roy Weil (Tr. 4019-40). Mold and bladder changers ("MB
changers") are primarily responsible for installing and removing
aluminum molds from the curing press (Tr. 3907, 3952, 4024; Exhibit
C-962, Segment starts 1:36:37 ). This is required whenever the molds
have to be changed or cleaned. The two processes, though similar,
require somewhat different tasks (Tr. 3910, 3946). Without
complications, a mold change takes approximately 45 minutes to complete
(Tr. 3908, 4033). MB changers are also responsible for changing the part
of the mold which inflates the tire (Tr. 3908-09). When performed in
conjunction with a mold change, this task adds 30 minutes to the work
process (Tr. 3809, 3926). There are two molds per curing press and the
MB changer performs four to six changes per 8-hour shift (Tr. 3909,
3919). Molds range in weight from 480 to 900 pounds (Tr. 3911, 3944, 4033).

To remove the molds, the MB changer stands at the front of the curing
press, bends and reaches to remove four bolts attached to each part of
the mold (Tr. 3911-14, 3918-20, 4033). The maximum distance is four feet
between the upper and lower sections of each mold (Tr. 3919). The bolts
are removed with an air wrench which vibrates and weighs about 15 pounds
(Tr. 3912, 3914, 3920, 3945, 4031). The MB changer also bends to lift
the injectors, which weigh about 60 to 100 pounds, the PCI rings, the
inflating bags, known as bladders, and the split rings (Tr. 3914,
3915-18, 4030-31). The mold sections are lifted out of the curing press
with a forklift operated by the MB changer and carried to a storage area
where new molds are picked up and carried back to the press by forklift
(Tr. 3921-24 ). The MB changer then bends again to fit the new molds in
place and line up the bolt holes (Tr. 3924-25).

To change the PCI, the MB changer stands at the back of the press and
bends to pry off the tightly secured PCI rings with a bar (Tr. 3926-27).
He manually lifts the rings off of the press and carries them
approximately 30 to 40 feet to other side of press, reaching up to hang
them. The heaviest rings weigh approximately 30 to 40 pounds (Tr.
3928-29). The MB changer carries a new set of rings back to the press
and installs them (Tr. 3929-31). Mr. Perkes indicated that he has found
it is easier to use a ratchet instead of an air wrench when changing the
PCI rings (Tr. 3914, 3926, 3943-44 ).

Other duties performed by MB changers include general maintenance of the
curing presses such as tightening loose screws or plates, operating a
forklift, and changing the top hats to accommodate different tire sizes
(Tr. 3907-08, 3910, 3940-43). Except when they are operating a forklift
or standing on a top hat to reach into a mold, MB changers perform
duties at the front of the curing press while standing on a concrete
floor and at the back of the press while standing on a foot-wide steel
platform (Tr. 3909, 3915-16, 3925-27, 4028). According to Mr. Weil, 80%
of his 8-hour shift was spent standing (Tr. 4028). The employee
witnesses also testified that an MB changer's work area reaches
temperatures as high as 130 degrees in the summer due, in part, to the
curing press which reaches 383 degrees during operation (Tr. 3914, 3949,
4029).

Mr. Perkes, who worked as an MB changer in 1992 and 1993, testified that
on April 21, 1992, he complained to his supervisor of wrist pain and was
treated at the onsite clinic with medication and supplied with a hand
support (Tr. 3906, 3934-37). He also testified that he was threatened by
plant management with termination due to the high number of injuries he
has suffered (Tr. 3937-38, 3949-51). Prior to his employment with
Dayton, Mr. Perkes apparently sustained fractures in one or both of his
arms (Tr. 3948).

Mr. Weil, who worked as an MB changer in 1993, testified that at that
time, he suffered a left shoulder injury while trying to install an
injector (Tr. 4022, 4033-34, 4037-40). He reported the injury to his
supervisor and was sent to the onsite clinic where he was assigned to
light duty work for two weeks and sent to therapy for one week (Tr.
4034-35).[107]

Consistent with the citation, Besser's report identifies frequent arm
abductions, extended and elevated reaches, forceful hand grips to
support tools, long periods of standing, operating vibrating hand tools,
and high heat as the stressors, the Secretary associated with this job
(Exhibit R-5586 at 53-54). However, he added a cautionary paragraph to
the beginning of the MB changer section in his report containing the
following language:

    "This task is varied and /it is not possible/ to accurately
    determine [the] length of time in awkward postures, force
    requirement, repetitions throughout the day, or other variables
    /which would permit accurate analysis/....A more extensive
    investigation should be made, if injury data warrants, to determine
    if there are mechanical assists or procedural changes which can be
    made to reduce the risk of this task."

(Exhibit R-5586 at 52) (emphasis added). Nonetheless, Besser's report
reviews the stressors he identified, linking them to the development of
musculoskeletal injuries and low back injury (Exhibit R-5586 at 53-54).
He also associates the high heat experienced by MB changers in their
work area with excessive fatigue, which he claims makes employees more
susceptible to acute and chronic injury (Exhibit R-5586 at 54). Finally,
assuming a lift weight of 20 pounds and a minimal frequency rate, Besser
performed a lifting analysis under the 1981 NIOSH lifting guidelines and
found that the action limit for this task is 15 pounds (Exhibit R-5586
at 53-54).[108]

As evidence of actual injury, the Secretary relies upon the testimony of
both MB changers who testified at the hearing (Secretary's Brief at
131-32). However, neither Mr. Weil nor Mr. Perkes provided actual
diagnoses for their respective conditions - a shoulder injury and wrist
pain - and they do not appear in any of the relevant injury records
submitted into evidence here. None of the plant doctors provided
testimony regarding specific injuries suffered by MB changers, and Dr.
DeHart's identification of 15 such injuries cannot be considered
reliable for the reasons discussed /supra/. As such, there is nothing in
the record which can properly be considered proof of actual harm under
this instance of violation. Therefore, the Secretary must establish
potential harm and indicate, with some specificity, the "threshold" at
which injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent arm abductions, torso flexions, extended and
elevated reaches, forceful hand grips, long periods of standing,
lifting, high heat, and vibrations. There is no dispute that most of
these activities are part of a MB changer's daily work duties. Indeed,
Dayton itself acknowledges in its job evaluation form for the MB changer
position that bending, lifting, reaching, and standing, are all physical
elements of this job (Exhibit C-649). In addition, the form lists heat
and humidity under work conditions, and the use of various tools under
equipment. However, since the list of alleged stressors alleged in the
citation was culled almost verbatim from Besser's report, his opening
paragraph to the MB changer section of his report raises serious
questions about the validity of his conclusions. Indeed, Besser's
explicit admission that the very nature of this job does not allow for
an "accurate analysis" significantly detracts from the Secretary's case.

Furthermore, the Secretary remains unable to prove that these activities
and conditions cause potential harm to MB changers. It has been
established /supra/, that the Secretary is unable to identify the point
at which bending, reaching, and standing pose the potential for harm.
Similarly, there is nothing in the record to indicate the frequency with
which an MB changer must engage in an "arm abduction" - described by Dr.
Schulze as lifting one's elbow up and away from the body - in order for
harm to develop (Tr. 3482). Frequency, as well as the amount of force
required, is also lacking under the "forceful hand grips" alleged stressor.

As with previous citation instances, the Secretary has failed to prove
that the high heat experienced in the curing department will potentially
harm employees in the context alleged here. Indeed, Dr. Schulze
specifically linked the high temperatures to heat stress problems, a
condition that is completely unrelated to cumulative trauma.
Furthermore, the contention that high heat levels causes extreme or
excessive fatigue in an employee such that injury becomes more likely
remains too tenuous to sustain a claim of potential harm. With regard to
"vibrations", Dr. Schulze claims that the length of time an MB changer
operates a vibrating hand tool is not important to determining whether a
hazard exists (Tr. 1662-63). Clearly, some amount of time must pass
before, as Dr. Schulze described it, the blood flow in the arm is
constricted enough to allow pressure to build up in the employee's joint
spaces, thus creating the potential for injury to occur. Without an
indication of how long that period may be, it cannot be determined how
this activity is harmful to the MB changer.

Finally, both Dr. Schulze and Besser performed lifting analyses assuming
low frequency levels, but reached very different conclusions depending
upon the weight of the component being lifted. An MB changer lifts
several different components throughout his shift such as injectors, PCI
rings, bladders, and split rings, and it is not clear from their
respective reports which components they considered (Tr. 3914, 3915-18,
4030-31). Without a clear consensus as to which lifting task poses the
potential for harm to the MB changer, the Secretary has failed to
adequately identify the conduct which she alleges to be harmful. As
indicated /supra/, leaving it to an employer to guess what citation
language means or does not mean does not constitute adequate notice of
the violations with which it has been charged. /See Pelron Corp/, 12 BNA
at 1835 (hazard alleged under general duty clause must be defined in a
way that "apprises the employer of its obligations").

Even if the Secretary had proven harm here, her case would fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among MB changers to the work activities alleged to be
ergonomic stressors. Moreover, their respective analyses lack the
element which they acknowledge is critical to any determination of
causation: actual injury data. None of the plant doctors offered
relevant testimony regarding the MB changer job and given its numerous
flaws, reviewed /supra/, Dr. DeHart's incident rate analysis fails to
reliably assess causation. Finally, absent serious consideration of the
various non-occupational sources which the Secretary's witnesses admit
can cause or contribute to the development of cumulative trauma
disorders, the issue of causation cannot be adequately resolved on this
record. Accordingly, the Secretary has failed to prove that any of the
work activities alleged under this instance of violation are hazardous
to the employees who perform them.

*_Instance V - Creel Attendants_*

Under this instance, the citation states in relevant part:

    V) Department 122 - Calendaring; Creel attendant(s) loading 45 pound
    spools of wire from a cart to individual pegs were exposed to
    ergonomic stressors such as frequent lifts, torso flexions, reaches,
    and long periods of standing which is consistent with the
    development of musculoskeletal and low back injuries.

Two employees testified in connection with this instance: Terry D.
Church (Tr. 4100-46) and Richard L. Johnson (Tr. 4169- 4200). Creel
attendants are responsible for loading spools of wire onto the creel
calendar machine (Tr. 4136-37; Exhibit C-962, Segment starts 1:58:31).
This machine produces steel belts by coating wire strands with rubber
(Tr. 4137). To load the machine, the creel attendant lifts a spool of
wire from a pallet, places it onto one of the machine's pins or
spindles, lines it up, and turns it to lock it into place (Tr. 4143,
4145-46, 4177- 78, 4182-84). Each spool measures about one foot across
and weighs about 45 pounds. Each pallet holds about 80 spools (Tr. 4143,
4145, 4174, 4182, 4199). Creel attendants must reach a distance of two
feet to access the spools located at the back of a pallet and each spool
is lifted with two hands and carried to the spindle (Tr. 4178-79).

The creel room consists of three aisles, each containing 240 spindles,
120 on each side, for a total of 720 spindles (Tr. 4146, 4188-91). There
are six levels of 20 spindles on each side of the aisle. The lowest
level of spindles is about one foot from the floor, the highest level,
about six feet (Tr. 4144-46, 4179). To load the lower spindles, the
creel attendants must bend and squat down; to load the higher spindles,
they must reach above their shoulders (Tr. 4180-81). Two creel
attendants are assigned to the machines and together they load about 720
to 800 spools per 8-hour shift (Tr. 4137, 4145, 4179-80, 4190-91, 4199).
According to Mr. Johnson, the creel attendant sets the pace at which the
spindles are loaded and can load them in any order (Tr. 4192-95). Other
duties performed by creel attendants include operating a forklift to
transport pallets of spools to and from the machines, cleaning up the
work area and threading the machines with wire (Tr. 4176, 4196). When
not operating the forklift, all of the creel attendant's duties are
performed while walking or standing (Tr. 4176-77).

Mr. Johnson worked as a creel attendant from 1992 until July of 1994
(Tr. 4171, 4197).[109] In this position, he experienced pain in his
shoulder and was successfully treated at the onsite clinic with
medication (Tr. 4185). In the fall of 1992, Mr. Johnson began
experiencing elbow pain while working in the warehouse which worsened
once he began working in the creel room lifting spools (Tr. 4185-86). He
visited the onsite clinic and was told he had an injury similar to
tennis elbow. He was treated with medication and given two types of
elbow braces (Tr. 4185-87).[110]

Mr.Besser identified frequent lifts, torso flexions, twists, reaches,
and long periods of standing as the stressors which the Secretary
associated with this job (Tr. 6132; Exhibit R-5586 at 59). Assuming an
average frequency of 12 lifts per minute and a spool weight of 45
pounds, Besser analyzed the spool lifting task under the 1981 NIOSH
guidelines and found an action limit of eight pounds (Tr. 6133-35;
Exhibit R-5586 at 59-60). In his report, he associated the identified
stressors with the development of musculoskeletal injuries and back
injury (Exhibit R-5586 at 59-60).[111]

As evidence of actual injury, the Secretary relies upon the testimony of
Mr. Johnson who experienced pain in his shoulder and elbow while working
as a creel attendant (Secretary's Brief at 136). However, neither
condition appears to have been actually diagnosed. According to Mr.
Johnson, he was told only that his elbow pain was "like tennis elbow
syndrome" (Tr. 4187). Furthermore, Mr. Johnson's conditions do not
appear in any of the relevant injury records submitted into evidence
here. As indicated, the plant doctors did not provide any testimony
regarding specific injuries suffered by creel attendants and Dr.
DeHart's identification of 5 such injuries cannot be considered reliable
for the reasons discussed /supra/. As such, there is nothing in the
record which can properly be considered proof of actual harm under this
instance of violation. Therefore, the Secretary must establish potential
harm and indicate, with some specificity, the "threshold" at which
injury may occur.

The ergonomic stressors alleged by the Secretary to be associated with
this job are frequent lifts, torso flexions, reaches, and long periods
of standing. There is no dispute that all of these activities are part
of a creel attendant's daily work duties. Indeed, Dayton itself
acknowledges in its job evaluation form for the creel attendant position
that standing, bending, lifting, and reaching, are all physical elements
of this job (Exhibit C-661). However, as discussed /supra/, the
Secretary remains unable to identify the point at which any one of these
activities creates the potential for harm. Indeed, the record lacks an
indication of how many lifts, bends, or reaches must be performed before
the onset of harm. In fact, the frequency used by Dr. Schulze and Besser
in their respective lifting analyses differed dramatically. Similarly,
it remains unclear just how long is too long a period of standing for
the purposes of identifying potential harm.

Even if the Secretary had proven harm here, her case would fail the
causation element of her burden of proof. As discussed /supra/, without
the proper foundation, neither Besser nor Dr. Schulze are qualified to
attribute the development, potential or actual, of cumulative trauma
disorders among creel attendants to the work activities alleged to be
ergonomic stressors. Moreover, their respective analyses lack the
element which they acknowledge is critical to any determination of
causation: actual injury data. None of the plant doctors offered
relevant testimony regarding the creel attendant job and given its
numerous flaws, reviewed /supra/, Dr. DeHart's incident rate analysis
fails to reliably assess causation. Finally, absent serious
consideration of the various non-occupational sources which the
Secretary's witnesses admit can cause or contribute to the development
of cumulative trauma disorders, the issue of causation cannot be
adequately resolved on this record. Accordingly, the Secretary has
failed to prove that any of the work activities alleged under this
instance of violation are hazardous to the employees who perform them.

*_CONCLUSION_*

For the foregoing reasons, Complainant has failed to establish the first
element of a general duty clause violation, by a preponderance of
evidence, that the conditions or activities in respondent's workplace as
alleged in the citation, present a hazard to employees. Accordingly,
Item 2 of Serious Citation No. 1 is VACATED in its entirety.

*_FINDINGS OF FACT AND CONCLUSIONS OF LAW_*

All findings of fact relevant and necessary to a determination of the
contested issues have been made above. Fed. R. Civ. P. 52(a). All
proposed findings of fact and conclusions of law inconsistent with this
decision are denied.

*_ORDER_*

Serious citation 1, item 1, alleging violation of  5(a)(1), 29 U.S.C. §
654(a)(1), is WITHDRAWN.

Serious citation 1, item 2, alleging violation of  5(a)(1), 29 U.S.C. §
654(a)(1), is VACATED.

 

ROBERT A. YETMAN
Judge, OSHRC

Dated:

Boston, Massachusetts

------------------------------------------------------------------------

FOOTNOTES

[1]: At the hearing, the Secretary sought to amend the citation to
reflect the alleged period of investigation to May 6, 1993 to November
1, 1993 (Tr. 6294, 6556). That motion was granted on March 13, 1996.

[2]: In order to receive treatment at Dayton's onsite medical clinic,
employees had to have a dispensary pass from their supervisor (Tr. 4373,
4406, 4530, 4565-66).

[3]: "Increased risk of developing " is not an element to be proven in
an alleged general duty clause violation.

[4]: Citation Instances A, B, and C, generally allege that the ergonomic
stressors associated with the cited job exposes employees to the generic
malady known as cumulative trauma disorders.

[5]: A musculoskeletal injury is defined as one which occurs to the
musculoskeletal unit or to the ligaments of the body, typically around
the joints, the cause of which may be a variety of traumas (Tr. 5122,
5278).

[6]: There is also a 1991 version of the NIOSH lifting guidelines which,
unlike the 1981 version, includes a component to evaluate the symmetry
of a lift (Tr. 1650-51, 6102-03). The 1991 version also replaces the
term "action limit" with "recommended weight limit" (Tr. 1650).

[7]: Any references to actual Dayton injuries in Dr. Schulze's report
were stricken by stipulation of the parties (Tr. 2402-04; Exhibit C-628).

[8]: These same concerns apply to Besser who, though not offered as an
expert witness, also lacks the requisite medical training to make
credible claims linking the potential development of various cumulative
trauma disorders and musculoskeletal injuries to the work being
performed at the Dayton plant. As the record indicates, he is neither an
ergonomist nor a medical doctor, and his experience in both areas is
minimal (Tr. 6155-58).

[9]: Besser also failed to provide sufficient references to the studies
which purportedly support his conclusions. /See supra/, n. 36. At the
hearing, counsel for the Secretary was advised to provide "the specific
authority that [Besser] referred to and the page, so that we can look at
it, to support his conclusions" (Tr. 6092-93). That information was not
provided.

[10]: Dr. DeHart did not participate in this phase of the review process
(Tr. 5166).

[11]: The team analyzed data relating to 20 job classifications, but two
were dropped because the associated medical record data was insufficient
(Tr. 5204). According to Dr. DeHart, he has never reviewed the citation
(Tr. 5525, 5634).

[12]: This report, and the work which it represents, is the focus of
Dayton's renewed motion to strike new information as it relates to Dr.
DeHart's testimony (Dayton's Post-Hearing Brief at 18). This motion was
denied at the hearing on two separate occasions and is again denied
here, together with its companion motion for sanctions (Tr. 5060-61,
7015-18). As Dayton acknowledges, Fed. R. Evid. 703 allows an expert to
base his opinion on facts or data "perceived by or made known to the
expert /at or before the hearing./" As indicated at the hearing, the
report, as well as Dr. DeHart's conclusions, are essentially a
reformatting of data already provided to Dayton (Tr. 5049-52). Moreover,
given the effective cross-examination of Dr. DeHart, Dayton has not been
prejudiced or harmed by the timing of this information's receipt (Tr.
5030, 5044-46, 7016-17).

[13]: Dr. DeHart's testimony was not entirely consistent as to whether
this data truly represents the team's final set of figures (Exhibit
C-987). Although his initial testimony indicates that the February 28,
1996, data was final, he later testified that another run must have been
performed sometime between February 28 and March 5, 1996, the first day
of his testimony (Tr. 5398, 5475-76, 5484, 5686- 87).

[14]: Dr. Parrish, one of the plant doctors, and Dr. Schulze, also
testified that pain is a symptom. (Tr. 1552-53, 4873).

[15]: Dr. Hadler identified three types of analytical studies which may
be employed to assess the cause of musculoskeletal disorders for a given
population; the cross-sectional study; the longitudinal or cohort study;
and the experimental study (Tr. 6750-55; Exhibit R-5695). While all
three have specific advantages and disadvantages, he contends that the
experimental study is the most reliable (Tr. 6754-55, 6779). Only one of
the eleven studies Dr. Hadler reviewed here is an experimental study
(Exhibit R-5707).

[16]: According to Dr. Hadler, carpal tunnel syndrome is defined as
"impaired conductivity" or a slowing of the median nerve, the nerve
which travels through the wrist (Tr. 6764, 6975, 6978, 6983-84; Exhibit
R-5696).

[17]: One of the carpal tunnel syndrome studies concluded that the
repetitive work performed by employees at a meat packing plant did, in
fact, contribute to their abnormal nerve conduction tests and subsequent
carpal tunnel release surgeries (Tr. 6784-88; Exhibit R- 5700). Dr.
Hadler, however, contends that the evidence examined by this study
actually proves otherwise, since the likelihood of an abnormal nerve
conduction test among the active employee group was no greater than that
for the job applicant group (Tr. 6791-92)

[18]: Although the loss of one-third of the original study population
could be considered a possible bias of this study, Dr. Hadler indicated
this was unlikely given that the missing employees tended to be younger
workers with the least amount of exposure (Tr. 6935-36; Exhibit R-5703).

[19]: An expanded version of this study, apparently published in 1987,
was extensively analyzed by the Commission in /Pepperidge Farm, supra/
at 2023-24.

[20]: Although Rule 702 deals with `scientific technical or other
specialized knowledge", the court limited its analysis to scientific
expert testimony. As noted by Chief Judge Rehnquist, the court provides
no guidance as to determining "the difference between scientific
knowledge and technical knowledge" /Daubert/ at 2800.

[21]: As to the factors considered by the Supreme Court in determining
reliability, the Ninth Circuit found them illustrative rather than
exhaustive. It further stated that the factors are not equally
applicable, or applicable at all, in every case. /Daubert II/ at 1317.
In footnote 3, the Ninth Circuit noted that:
These factors raise many questions such as how do we determine whether
the rate of error is acceptable, and by what standard? Or, what should
we infer from the fact that the methodology has been tested, but only by
the party's own expert or experts? Do we ask whether the methodology
they employ to test their methodology is itself methodologically sound?
Such questions only underscored the basic problem, which is that we must
devise standards for acceptability where respected scientists disagree
on what's acceptable. /Id./ At 1316-17.

[22]: A computer run for less than a three year period (1995-97)
produced 107 law review articles discussing the /Daubert/ decision.
There have been over seventy reported federal court decisions during the
same time frame analyzing or referencing the decision.

[23]: The court did not discuss the applicability of /Daubert/ to expert
testimony based upon "technical or other specialized knowledge" (Rule
702). Since the court applies /Daubert/ only novel scientific testimony
based upon a particular methodology or technique, it appears that
/Daubert/ is not relevant to technical or other specialized knowledge in
the Tenth Circuit. /See also Unites States v. Jones/ 107 F.3d 1147 (6th
Cir. 1997) wherein the Sixth Circuit held that /Daubert/ applies only to
scientific expert testimony.

[24]: /Cummings v. Lyle Indus./, 93 F.3d 362, 366-371 (7th Cir. 1996);
/Peitzmeier v. Hennessy Indus., Inc./ 97 F.3d 293 (8th Cir. 1996 Cert.
Denied 117 S.Ct. 1552 (1997) See also: /Daubert II supra/; /Joiner v.
General Electric Company/, 78 F.3d 524 (11th Cir. 1996)

[25]: DeHart defines ergonomics as the study of work. He considers
ergonomics to be a science within the field of engineering (Tr. 5064,
5093-94)

[26]: Establishing that employees were exposed to "increased risk" of
injury is not a necessary element of proof for a general duty clause
violation (section 5(a)(1). The Secretary was unable to provide a
convincing explanation for the insertion of the phrase in the citation.
For purposes of this analysis the language is superfluous and irrelevant
to the Secretary's burden of proof. See Kearney testimony Tr. 5918-5920.

[27]: When initially asked, Dr. DeHart stated that the methodology could
not be identified by a particular name. (Tr. 5139-40)

[28]: The letter "X" indicated that the employee, immediately returned
to work, "Y" was used to indicate that the employee immediately returned
to work with some restriction and "Z" signified lost work time.

[29]: "Ergonomic stressor" was defined by Schulze as "a stress, force or
load to body, that has an impact on the job task that's being
performed." (Tr. 1400).

[30]: Schulze testified that ergonomics is a subspeciality in the field
of industrial engineering. He was unaware of any university which offers
a degree in ergonomics (Tr. 1402-03).

[31]: Bernardino Ramazzini is known as the father of occupation
medicine. In the preface to his book "De Morbus Artificum" (About the
diseases of workers) (1721) Ramazzini wrote :

    "...Manifold is the harvest of diseases reaped by certain workers
    from the crafts and trades that they pursue; all the profit they get
    is injury to causes. The firsthand most potent is the harmful
    character of the materials that they handle, noxious vapors and very
    fine particles, inimical to human beings, including specific
    diseases. /As the second cause I assign certain violent and
    irregular motions and unnatural postures of the body, by reason of
    which the natural structure of the living machine is so impaired
    that serious diseases gradually develop therefrom..." /(Emphasis
    added)/Industrial Environment - Its Evaluation and Control NIOSH./

[32]: Since the Secretary failed to establish by a preponderance of the
evidence that Respondent violated section 5(a)(1) of the Act, it is not
necessary to provide a /Daubert/ analysis of Dr. Hadler's testimony.

[33]: It is recognized that this ruling is a serious, and as seen
/infra/, a fatal blow to the Secretary's case and will, most likely,
form the basis for an appeal if the Secretary is so inclined. For that
reason and in fulfillment of my role as a fact finder and in order to
provide a complete record, an analysis of the testimony of Drs. DeHart
and Schulze derived from the application of their respective scientific
methodologies will be contained in footnotes accompanying the analysis
of each alleged violation, /infra/.

[34]: In /Pepperidge Farm/, the lifting tasks and repetitive motion
tasks performed by plant employees were cited under separate citation
items. Here, however, the Secretary includes lifting among the numerous
work activities listed under each instance of the one violation at issue
here, linking all such tasks to the development of cumulative trauma
disorders.

[35]: Of the three medical records in evidence, only two are admitted
for the substantive information contained therein (Exhibits C-173 &
C-241). The medical record for employee Randy Burch was admitted only to
serve as an example of the forms used by the plant doctors (Tr. 4567-71;
Exhibit C-29).

[36]: An accident analysis form was completed by an employee's immediate
supervisor whenever there was a report of injury (Tr. 6438-40, 6448).
The form, copies of which were circulated throughout the respective
department's management, was developed by Dayton's safety department as
a way to gather information regarding injuries at the plant (Tr. 6439-41).

[37]: In referencing the relevant portions of the Secretary's videotape
depicting the various jobs at issue here, it is clear that the videotape
provides only a sample of the job duties performed by an employee over
the course of an 8- hour shift. Indeed, these brief videotaped segments
do not depict all of the activities which an employee might engage in
during an average workday. For example, Mr. Nguyen testified that the
video does not depict the belt loader loading TMA onto the conveyor belt
(Tr. 4308).

[38]: Though relevant to the issue of exposure in view of the
"cumulative" nature of the hazard alleged, the Secretary failed to
elicit testimony from many of the employees who testified at the hearing
establishing the length of time which they were employed in a cited job.
For instance, it is not clear from the record how long Mr. Nguyen was
employed as a belt loader. In addition, it is not evident whether he was
employed in this position during the period alleged by the Secretary in
her amended complaint (Tr. 6556). However, for this particular instance
as well as those discussed /infra/, there is no evidence to suggest that
the duties performed by the employee witnesses were any different from
those performed by employees working in the same jobs during the period
in question (Tr. 4903). Thus, the fact that some of the employee
witnesses may not have been employed in a cited job during the alleged
period does not preclude consideration of their testimony here.

[39]: According to Dr. Schulze, the primary ergonomic stressor
associated with the belt loader job is the lifting of rubber bales, an
activity which he claims is hazardous because it is frequent and
asymmetrical (Tr. 1531-32, 1535-36, 1541-43, 1550-51, 1566, 3260, 3274;
Exhibit C-628). Using the formula found in the 1991 version of the NIOSH
lifting guidelines, he specifically concluded that manually lifting
75-pound bales of rubber at a rate of approximately five times per
minute exceeded the calculated weight limit recommended by NIOSH for a
lift of this nature (Tr. 1531-32, 1535, 1541-49, 2582, 3250; Exhibit
C-628 at 94-97). Dr. Schulze calculated a frequency rate of five lifts
per minute by observing four to six belt loaders during his visits to
the Dayton plant (Tr. 1544-49). Dr. Schulze testified that any belt
loader performing a manual lift in this manner increases his risk of
developing back pain and/or injury (Tr. 1534- 37. 1541, 1557-58,
1566-67, 2528, 3208-09. Dr. Schulze concluded that belt loaders who use
the strong arm to lift rubber bales are also exposed to the risk of
injury, but to a lesser extent than those performing a manual lift (Tr.
1538, 1555-56, 3252). Although his testimony suggests that he believes
elevated and extended reaches are also stressors associated with this
job, Dr. Schulze's report does not explicity identify such reaches or
long periods of standing, as such (Tr. 1537, 1559-60, 3253-54, 3258-59,
3261-64, 3275; Exhibit C-628). He admitted, however, that neither
activity is likely to result in injury (Tr. 1561-62, 3277). [40]: Dr.
DeHart and his team concluded that as a group, belt loaders suffered a
total of 25 musculoskeletal injuries from 1989 to 1993 (Tr. 5309-10).
According to a data entry form for one of the belt loaders evaluated,
the stressors which Dr. DeHart's team considered under this job were
frequent lifts, elevated/extended reaches, long periods of standing,
awkward positions, and forceful exertions (Tr. 5633; Exhibit R-5680).
Based on his calculations, Dr. DeHart found an injury incident rate of
35.7 for the belt loaders which, when compared to the BLS rate of 8.4,
resulted in a relative risk of 4.25 (Tr. 5310-11; Exhibit C-979).
Relying upon this data, as well as his review of the job, he concluded
that the ergonomic stressors present in the belt loader position were
sufficient to cause musculoskeletal injury (Tr. 5311).

[41]: More than half of the 68 Pepperidge Farm employees alleged by the
Secretary to have suffered actual injury were diagnosed with carpal
tunnel syndrome. /Pepperidge Farm/ at 2015.

[42]: Dr. DeHart's identification of 25 belt loader injuries is highly
suspect given his team's acknowledged inability to distinguish between
injuries that can be considered musculoskeletal and those attributable
to some type of acute trauma. As such, it would be unreasonable to base
any conclusions regarding actual injury or harm solely on Dr. DeHart's
analysis. Without the medical records underlying his analysis, it is
simply not possible to verify whether his team's identification of 25
belt loader injuries is valid. In fact, Mr. Nguyen's injury does not
even appear in Dr. DeHart's final set of injury data (Exhibit C-987).

[43]: The Commission revisited this issue in /Waldon Healthcare Center/,
16 BNA OSHC 1052, 1060,1993-95 CCH OSHD ¶ 30,021 (No. 89-2804, 1993)
("/Waldon/"), and observed that the holding in the Benzene case does not
require "that there be a `significant risk' of the hazard coming to
fruition, only that if the hazardous event occur, it would create a
`significant risk' to employees." But as Judge John Frye indicated in
/Beverly Enterp., Inc./, No. 91-3344, slip op. at 9-10 (November 13,
1995) ("/Beverly/"), this language actually refers to the Secretary's
proof of /exposure/ to a hazard, not to her proof that the hazard
actually exists. Indeed, in /Waldon/, the Commission concluded that the
Secretary had established the hazard of Hepatitis B virus ("HBV")
transmission in the cited facilities and rejected the employer's
contention that the risk of exposure had to be significant. /Waldon/ at
1059-60.

[44]: As described in the form, this is a "typical job consisting of few
operations repeated frequently in similar sequence."

[45]: Dr. Schulze conceded that he cannot say how much force or how many
repetitions places an employee at risk of injury (Tr.1533-34, 1537,
1559-62, 2002, 2133-34, 2136, 2140, 2148-49, 2158, 2161, 2176-78,
2619-20, 2657, 3255-56).

[46]: Three of the Secretary's witnesses - Besser, Dr. Root, and Dr.
DeHart - indicated that studies which attempt to quantify the level of
repetition at which harm develops do exist (Tr. 4546, 4631- 36, 5529-30,
5533-36, 5587, 5600, 6037, 6045, 6239-40, 6320, 6331-32). However, none
of these studies, which were not clearly identified, was offered into
evidence by the Secretary, nor were they reviewed in sufficient detail
by these witnesses to establish any type of consensus on the issue. In
addition, Besser's claims are contradicted by his report which not only
acknowledges the difficulty in quantifying this concept, but also fails
to apply any of these alleged principles to the jobs he evaluated.
Similarly, neither Dr. Root nor Dr. DeHart related the studies they
referenced to the work actually performed at the Dayton plant.

[47]: Although Dr. Schulze initially testified that even with some
movement, standing on a concrete floor for eight hours is "too long", he
later revised his comments to take into account the scheduled breaks
which each employee is entitled to take during an 8-hour shift (Tr.
1436-37, 3992-93). He also indicated that what actually constitutes a
"long period" is job dependent and varies from task to task, suggesting
that what may be too long for a belt loader may not be too long for some
other type of job (Tr. 1437, 2321-22). In the end, Dr. Schulze conceded
that he "can't put a number of how many hours" is too long a period to
stand, and admitted that the standing required of a belt loader is not
likely to cause injury (Tr. 1954-55, 3262-63, 3277).

[48]: Depending upon the version used, the NIOSH formula's components
include the distance the load is held above the floor, the distance
between the employee's hands to ankles, the angle at which the load is
displaced from the front of the employee's body (also known as the
symmetry of the lift), and the position of the body (Exhibit R-5675 at
5-6). Even Dr. Schulze acknowledged that the NIOSH guidelines do not
take into account the individual actually performing the lift (Tr. 1659).

[49]: Although given the assignment to identify potential stressors at
the Dayton plant and recommend abatement, both Dr. Schulze and Besser
recognized that they offered little to the issue of causation. Although
Besser expressly links each stressor identified in his report with the
development of various cumulative trauma disorders and musculoskeletal
injuries, he conceded that these injuries cannot accurately be
attributed to an individual's work activities without considering actual
injury incident rates (Tr. 6061-68, 6175, 6281, 6338-39, 6399; Exhibit
R-5674). As he explained, a significant injury incident rate allows one
to legitimately conclude that the cause of the identified injuries may
be occupational (Tr. 6061-63, 6338-39). Dr. Schulze echoed this notion,
admitting on cross- examination that his conclusions regarding the
potential injuries which may occur from the ergonomic stressors he
identified were based in part on the /actual/ injuries that occurred at
Dayton (Tr. 2181-89, 2192-93, 2202-04, 2208, 2215-17). According to Dr.
Schulze, actual injury data also plays a critical role in quantifying
the likelihood of injury occurring as the result of an individual's work
activities, as well as alerting an employer to the fact that a
particular job may be causing harm to employees (Tr. 2177, 2181, 2187,
2194, 2225, 2336, 3540, 3543-48). Even Dr. DeHart acknowledged that one
cannot determine causation simply by viewing a videotape of each
individual job. Injury data must also be considered (Tr. 5370-73). Under
these circumstances, neither Dr. Schulze nor Besser provided the basis
and analysis required to make an accurate determination of causation.
Dr. DeHart, the Secretary's key witness on this issue, also fails to
support this critical element of the Secretary's case. As discussed
/supra/, his incident rate analysis is seriously flawed by inadequate
data and a poor information gathering process. By his own admission, his
comparison of incident rates fails to prove causation on an individual
basis and despite his vague assurances to the contrary, there is no
convincing evidence establishing causation on a population basis.
Finally, since none of the plant doctors identified or reviewed any
actual belt loader injuries to the belt loaders, the record lacks their
relevant opinions as to the specific cause of any such injuries under
this instance. The Secretary's counsel specifically stated at the
hearing that the plant doctors were offered solely as fact witnesses and
were not presented to address the issue of causation (Tr. 4498-99).
However, goven their medical expertise, as well as their personal
experience in treating many Dayton employees suffering from the injuries
alleged, I believe their opinions as to the specific cause of injuries
suffered by specific employees to be relevent (Tr. 4579-80). /See
Pepperidge Farm/ at 2017-18, 2029 (opinions of medical personnel who
treated injured employees as to the cause of their injuries considered
relevant to issue of causation).

[50]: According to Dr. Schulze, the stressors associated with the tuber
operator job stem primarily from the tuber operator's lifting of the
preform (Tr. 1982-83, 3162-65; Exhibit C-628 at 353). Although he found
that this is an infrequent lift that is performed only once every 30
minutes, Dr. Schulze concluded that the awkward body posture and
asymmetry of the lift create an ergonomic hazard whose likely result is
injury to the back (Tr. 1982-83, 3151, 3160-62, 3165-66; Exhibit C- 628
at 355).

[51]: Dr. DeHart and his team concluded that as a group, tuber operators
suffered a total of 21 musculoskeletal injuries from 1989 to 1993 (Tr.
5306 ). According to a data entry form for one of the tuber operators
evaluated, the stressors which the team considered under this job were
frequent torso flexions, lifts from awkward postures, long periods of
standing, frequent awkward postures, hot environment, and forceful
exertions such as pushing or pulling (Tr. 5644- 45; Exhibit C-548).
According to Dr. DeHart's calculations, the tuber operators had an
injury incident rate of 56 which, when compared to the BLS rate of 8.4,
results in a relative risk of 6.67 (Tr. 5305-08; Exhibit C-978). Based
upon this data, as well as his review of the job, Dr. DeHart concluded
that the elevated rate of injury was caused by the "ergonomic issues and
problems" present in this job (Tr. 5308).

[52]: Dr. DeHart's identification of 21 such injuries remains unreliable
for the purposes of determining whether actual harm has been
established. In fact, Mr. Williams' injury does not even appear in Dr.
DeHart's final set of injury data (Exhibit C-987).

[53]: In fact, Dr. Schulze concedes that his report does not identify
long periods of standing as an ergonomic stressor associated with the
tuber operator job because it is not a stressor of "prime importance"
(Tr. 3159-60).

[54]: Dr. Schulze testified that although he observed tuber operators
engage in frequent torso flexions, he did not identify this activity in
his report as an ergonomic stressor because he did not focus on it as a
problem of the job (Tr. 3162-65).

[55]: Given its numerous flaws, reviewed /supra/, Dr. DeHart's incident
rate analysis fails to reliably assess causation and the plant doctors
offered no relevant testimony regarding the tuber operator job.

[56]: Dr. Schulze identified several stressors as associated with the
booker job. According to his testimony, requiring the booker to twist
from the conveyor belt to the tread tray with one leg planted and
bearing his entire body weight stresses the knee of that leg, as well as
the lower back, and could result in strains to either area (Tr. 1583-84,
3300; Exhibit C-628 at 122). Having determined that a booker lifts a
tread weighing an average of eight pounds 13 times per minute, Dr.
Schulze found that the high frequency of this task results in a
recommended weight limit of zero under the 1991 NIOSH guidelines (Tr.
1584-85, 1588, 3285-88, 3295-97, 3300; Exhibit C-628 at 124-29). He also
identified extended and elevated reaches, and long periods of standing,
as stressors which could result in injuries to the knee, back, or
shoulder (Tr. 1587-89, 3300-02; Exhibit C-628 at 122).

[57]: Dr. DeHart and his team concluded that as a group, bookers
suffered a total of 13 musculoskeletal injuries from 1989 to 1993 (Tr.
5312). According to Dr. DeHart's calculations, the bookers had an injury
incident rate of 17.4 which, when compared to the BLS rate of 8.4,
results in a relative risk of 2.1 (Tr. 5312 ; Exhibit C-980). Based upon
this data, as well as his review of the job, Dr. DeHart concluded that
"the ergonomic stressors that are present in that job are attributable
to the musculoskeletal injuries that are occurring" (Tr. 5312-13).

[58]: Mr. Davis testified only that Dr. Lundy "thought" he might be
suffering from a torn rotator cuff (Tr. 1101).

[59]: Dr. DeHart's identification of 13 musculoskeletal injuries from
1989 to 1993 remains unreliable . His final set of injury data lists Mr.
Davis' injury type only as "both shoulders", and does not include Ms.
Ramirez' knee injury (Exhibit C- 987).

[60]: In determining his frequency rate, Dr. Schulze indicated that he
did not account for the scheduled breaks to which bookers are entitled
nor did he seem aware that the third booker assigned to an operation
alternates between loading tread trays and operating a fork lift (Tr.
3288-90).

[61]: Dr. Schulze, on the other hand, seemed most concerned with the
fact that the twist is performed while lifting and with the booker's leg
planted in one spot (Tr. 1583-84, 3300). In general, he maintained that
twisting during a lift is hazardous because "you're twisting your spinal
cord...[and] vertebra at the same time...so you put a rotational torque
on the spine, as well as a compression force" (Tr. 1444- 45).

[62]: Although Dr. Schulze testified that pinching, twisting of the
wrists, sitting for long periods of time, and reaching with arms
elevated, are all stressors associated with the beadwinder job, his
report focused largely on those activities associated with the task of
aligning beads (Tr. 1474, 2655, 2658-59, 2660-66, 3344, 3349; Exhibit
C-628 at 73). He explained that this specific task creates a combination
of force, repetition, and wrist deviation, the three main factors
associated by epidemiological studies with the development of a wrist
malady, such as carpal tunnel syndrome (Tr. 1475-76, 1478-79, 1510-13,
1515, 1519-20, 2162, 2618-19). According to Dr. Schulze, this was the
most significant problem associated with the beadwinder job; hence his
failure to specifically identify either static posture or frequent
extended reaches as stressors in his report (Tr. 2660-66, 3349-50). Dr
Schulze argues, however, that his recommendation that the beadwinders be
provided with an ergonomic chair, and his observation that the
beadwinder maintains his head in a "flexed posture" 33% of the time,
constitute indirect references to the static posture stressor (Tr. 2661,
3344-47).

[63]: Dr. DeHart and his team concluded that as a group, beadwinders
suffered a total of six musculoskeletal injuries from 1989 to 1993 (Tr.
5317-18). According to Dr. DeHart's calculations, the beadwinders had an
injury incident rate of 17.1 which, when compared to the BLS rate of
8.4, results in a relative risk of 2.04 (Tr. 5317-18; Exhibit C-982).
Based upon this data, as well as his review of the job, Dr. DeHart
concluded that "the ergonomic stressors that are present...contributed
in causation to the increase in musculoskeletal injuries...[and] was the
source for the injuries that were occurring" (Tr. 5318-20). Mr.
Collier's condition is listed on Dr. DeHart's final set of data as
"right shoulder, elbow pain" (Exhibit C- 987 at 3). However, Mr. Collier
never mentioned suffering pain in his shoulder and a definitive
diagnosis is still lacking with regard to his elbow.

[64]: Dr. Schulze focused on bead alignment as the most hazardous
component of this job. For Dr. Schulze, this task is harmful because it
requires beadwinders to deviate their wrist which, when combined with
repetition and force, contributes to the development of wrist maladies
including carpal tunnel syndrome (Tr. 1475-76, 1478-79, 1510-13, 1515,
1519-20, 2162, 2618-19). Though he repeated this trilogy several times
throughout his testimony, Dr. Schulze provided no concrete basis for his
conclusion that repetition, force, and wrist deviation causes wrist
maladies (Tr. 2749). His references to research performed by a "Dr.
Rempel" regarding wrist deviations also fail to support the purported
link between this activity and cumulative trauma disorder. According to
Dr. Schulze's testimony, Dr. Rempel's study establishes only that
deviating the wrist from the neutral position places an increased amount
of pressure on the median nerve; it apparently does not identify the
result of such pressure nor does it establish how much of a deviation is
required to create this effect (Tr. 1476-77, 2141, 2746-47). However,
the Secretary has not alleged wrist deviations as a stressor under this
instance of violation, apparently electing instead to use Besser's
language, "frequent pinches". In any case, Dr. Schulze admitted that he
does not know how many wrist deviations can be considered harmful since
it depends upon the individual and the force with which the movement is
made (Tr. 1476-77, 2146-47, 2619-21, 2746-48, 2750). He also testified
that he cannot say how many pinches are too many, or even how much pinch
force would be too much (Tr. 1477, 2126-40, 2619-21, 2657-58).

[65]: The process which follows relates specifically to the first stage
machines found in Department 130 of the plant, one of the three tire
building departments cited here. The machines found in Department 173
are different in that they consist of two first stage stations and one
second stage station, known as a 2-on-1 module machine (Tr. 405-06,
421-22, 1015). These machines are more automated than the assembly
machines since materials are automatically spooled onto the machine's
drum from "server trays" rather than manually applied by the tire
builder, as indicated /infra/ (Tr. 406, 423-25, 1044-45; Exhibit C-962,
Segment starts 53:02).

[66]: This step is not performed for tires designed for use as spares,
known as "tempa-spares" (Tr. 801).

[67]: This step is not performed when tempa-spares are being produced
because the tread is fed through the back of the machine from a
continuous roll (Tr. 923, 973-74).

[68]: Although an accident analysis file dated May 7, 1992, indicates
that Ms. Nolan was experiencing neck pain due to an "old injury", she
could not recall providing the information contained in the file and
denied that the signature on the file was actually hers (Tr. 866-67,
870-71; Exhibit C- 899).

[69]: An single-page accident analysis file referencing a right wrist
pain complaint by Mr. Conaway was submitted into evidence by the
Secretary (Exhibit C-857). It is not clear, however, whether this
particular complaint is related to Mr. Conaway's testimony because the
date of injury is illegible.

[70]: In his report, Dr. Schulze identified wrist deviations, torso
flexions, extended reaches, and standing as the stressors associated
with both stages of tire building (Tr. 2076, 2079-80, 2085, 2088,
2095-96, 2519-20, 3355-56, 3360; Exhibit C- 628 at 269-70). Though not
identified as such in his report, he agreed at the hearing that an
additional stressor associated with the first stage tire builder job is
forceful pinch grips, and an additional stressor associated with the
second stage tire builder job is compressive force in the wrist (Tr.
2090-91, 2096, 3352). According to Dr. Schulze, the injuries likely to
occur as a result of these stressors are wrist and hand injuries such as
carpal tunnel syndrome and sprains, tendinitis in the elbow, shoulder
bursitis, and low back injury (Tr. 2100, 2109-10, 3370). His report also
contains a lifting analysis of the tire lifting task, which assumes a
tire weight of eight pounds and a frequency level of one lift per
minute; he concluded that the lift was not hazardous under the 1991
NIOSH lifting guidelines since it did not exceed the recommended weight
limit of about 20 pounds (Exhibit C-628 at 272-76).

[71]: Dr. DeHart and his team concluded that as a group, tire builders
suffered a total of 215 musculoskeletal injuries from 1989 to 1993 (Tr.
5264). According to a data entry form for one of the tire builders
evaluated, the stressors which Dr. DeHart's team considered under this
job were frequent forceful pinch grips, extended/elevated reaches,
lifts, torso flexions, and long periods of standing (Tr. 5625; Exhibit
C-427). According to Dr. DeHart's calculations, the tire builders had an
injury incident rate of 13.6 which, when compared to the BLS rate of
8.4, results in a relative risk of 1.62 (Tr. 5265-68; Exhibit C- 973).
Based upon this data, as well as his review of the job, Dr. DeHart
concluded that the increase in musculoskeletal injuries among tire
builders was associated with their work (Tr. 5271-74).

[72]: Finally, Dr. Hadler provided no specific testimony regarding the
tire builder job or the stressors alleged to be associated with it.

[73]: It is not surprising that the Secretary did not include the
conditions suffered by two of the eight tire builders as part of her
actual injury proof. Mr. Newby testified that he suffered a damaged
spinal disk, a condition which suggests an acute injury rather than a
cumulative trauma disorder. There is also nothing in the record to
confirm his diagnosis. With regard to Mr. Reeves, the conditions he
testified to appear to have occurred outside the scope of the citation.

[74]: The other conditions testified to by Mr. Wright are documented in
associated accident analysis files as pain complaints; there are no
diagnoses indicated (Exhibits C-842 & C-914N). Although the documents
completed by supervisory personnel suggest that they attributed both
conditions to stress or repetitive motion, the attached medical reports
contain no legible conclusions regarding causation.

[75]: The entry for Mr. Conaway which appears in Dayton's 1992 OSHA 200
log indicates a March 9th diagnosis of tendinitis in his right wrist,
not a cyst (Exhibit C-672). Without the underlying medical
documentation, such an inconsistency raises questions about the
reliability of either diagnosis.

[76]: The other injuries testified to by Ms. Nolan fail to support the
Secretary's case. The injury she sustained to her shoulder and neck when
she was struck in the back by a chain is obviously acute in nature and
the cyst which she developed on her left wrist at some unidentified time
does not appear in any of the relevant injury records submitted into
evidence here. The fact Ms. Nolan filed a claim for compensation in
connection with the latter condition does not in and of itself establish
the reliability of her diagnosis where these records, as discussed
/supra/, were not submitted into evidence for the truth of their contents.

[77]: There are no injury records in evidence which relate to either of
the latter two employees, but Mr. Jolley's name appears in Dayton's OSHA
200 log for 1991 with an indication that his hands and arms were numb
(Exhibit C-671 at 4398).

[78]: The Secretary has been unable to establish the point at which any
of the cited tire builder activities cause harm. It has already been
established that the Secretary is unable to make her case with regard to
standing, bending, and reaching. With respect to " increased compressive
force" and "forceful pinch grips", Dr. Schulze could not state what an
acceptable level of compressive force would be, let alone the point at
which an "increased" level constitutes an ergonomic stressor (Tr.
2096-98). Furthermore, the "forceful pinch grips" stressor suffers from
the same problems as the "frequent pinches" stressor discussed under the
previous citation instance, namely the Secretary's inability to
establish the level of pinch force or the number of pinches at which
harm will develop.
Furthermore, Dr. DeHart's incident rate analysis remains seriously
flawed for the purposes of establishing causation. Indeed, as discussed
/supra/, he readily admitted that his rate comparison fails to prove
causation on an individual basis and there is no convincing evidence to
establish his claims of causation on a population basis.

[79]: Prior to 1989, this job was a three-man operation, and after the
1994 strike, it became a two-man operation (Tr. 1219-20, 1701-02).

[80]: Although Dr. Schulze identified standing and lifting as the main
stressors associated with the radial doper job, he indicated that the
tire lifting task includes stressors such as twisting, extended reaches
above the shoulder, and torso flexions (Tr. 1607-08; Exhibit C-628 at
195). Specifically, he testified that the reaching and bending required
for the radial doper to remove tires from and place tires onto the top
and bottom pins of the beehive racks posed a significant risk for back
injury (Tr. 1608-09, 3390-91). Having determined that radial dopers lift
tires, each weighing an average of 13 pounds, at a rate of 20 lifts per
minute, Dr. Schulze found that the high frequency of this task, as well
as the position of the tire during the lift, results in a recommended
weight limit of zero under the 1991 NIOSH guidelines (Tr. 1603-07, 1612;
Exhibit C-628 at 197-206). Finally, he testified that standing all day
results in generalized fatigue and stress to the lower back, increasing
the risk for injury (Tr. 1611).

[81]: Dr. DeHart and his team concluded that as a group, radial dopers
suffered a total of 30 musculoskeletal injuries from 1989 to 1993 (Tr.
5278). According to a data entry form for one of the radial dopers
evaluated, the stressors which Dr. DeHart's team considered under this
job were frequent lifts, frequent overhead reaches, long periods of
standing, and torso flexions (Tr. 5629-31; Exhibit C-493). According to
Dr. DeHart's calculations, the radial dopers had an injury incident rate
of 33.8 which, when compared to the BLS rate of 8.4, results in a
relative risk of 4.023 (Tr. 5280-81; Exhibit C-974). Based upon this
data, as well as his review of the job, Dr. DeHart concluded that the
increased rate of injury experienced by the radial dopers was caused by
their work (Tr. 5282-83).

[82]: The injuries testified to by Mr. Burrous occurred in 1994 and
1995, and are therefore beyond the scope of the citation.

[83]: Mr. Kindrick's condition does not appear in Dr. DeHart's final set
of injury data, but Mr. Hill is the subject of five entries. These
entries all indicate that Mr. Hill suffered from pain in the lower back
or shoulder, and it was not explained, nor is it apparent, why the word
"strain" is included parenthetically at the end of all five entries.

[84]: This is evidenced by the Secretary's use of the qualifying
language "high frequency" and "repeated", as well as the plural "torso
flexions".

[85]: Dr. Schulze identified the tire lifting task as the primary
stressor associated with the curing press operator job, a task which he
claims includes a number of stressors such as torso flexions, extended
overhead reaches, and wrist deviations (Tr. 1622-23, 1625-26, 3396-99;
Exhibit C-628 at 176). According to Dr. Schulze, extended reaches and
wrist deviations can cause tendinitis, epicondylitis, bursitis, a pulled
shoulder muscle, or back strain (Tr. 1628). Having determined that cure
press operators lift tires at a rate of 10 lifts per minute, Dr. Schulze
found that the high frequency of the lift, as well as its asymmetry,
results in a recommended weight limit of zero under the 1991 NIOSH
guidelines (Tr. 1626-27; Exhibit C-628 at 178-86). Dr. Schulze also
testified that the high levels of heat in the curing department create
the risk of heat-related injuries such as heat prostration; the heat
also causes the employee to fatigue faster making him more susceptible
to injury (Tr. 1631-32).

[86]: Dr. DeHart and his team concluded that as a group, curing press
operators suffered a total of 17 musculoskeletal injuries from 1989 to
1993 (Tr. 5320-21). According to a data entry form for one of the curing
press operators evaluated, the stressors which Dr. DeHart's team
considered under this job were frequent lifts, reaches above shoulders,
high heat area, torso flexions and extreme amount of walking (Tr.
5646-47; Exhibit C-618). According to Dr. DeHart's calculations, the
curing press operators had an injury incident rate of 22.8 which, when
compared to the BLS rate of 8.4, results in a relative risk of 2.07 (Tr.
5320-22; Exhibit C-983). Based upon this data, as well as his review of
the job, Dr. DeHart concluded that the ergonomic stressors present in
this job were the cause of the increased rate of injury (Tr. 5323).

[87]: At the hearing, the Secretary explained that this instance alleges
three separate stressors - increased static posture, shoulder stresses,
and upper arm stresses - and acknowledged that "back injury" does not
constitute an ergonomic stressor (Tr. 2862-64, 3450).

[88]: This initial part of the inspection process was apparently
instituted sometime in 1993 by the corporation which bought the Dayton
plant (Tr. 2779-80, 2934-35, 3004-05). Both employee witnesses indicated
that the original method of inspecting tires was easier without these
additional steps (Tr. 2937-38, 3005, 3042-43).

[89]: Ms. Cooks also worked as a tire inspector for an unspecified
period of time in 1992 while employed in the utility and service
department, known as "U & S"; in this department, employees are assigned
to various positions as replacements for absent employees (Tr. 2824,
2860-61, 2865-66, 3007).

[90]: Ms. McCuin also worked as a tire inspector for an unspecified
period of time in 1990 while employed in the U & S department (Tr.
3006-07).

[91]: Dr. Schulze identified static posture, standing, shoulder and
upper arm stresses, and lifting as the stressors associated with the
tire inspector job (Tr. 2036-38; Exhibit C-628 at 284). Using the 1991
NIOSH guidelines, he analyzed the tire lifting task assuming a tire
weight of 13 pounds and found a recommended weight limit of almost 11
pounds (Tr. 2038-39; Exhibit C-628 at 287-93). According to Dr. Schulze,
this lift creates the potential for back injury because it is
asymmetrical (Tr. 2038, 3446-48). Other injuries he identified as likely
given the stressors associated with this job are strains to the
shoulder, wrist, and elbow (Tr. 2039-40).

[92]: Dr. DeHart and his team concluded that as a group, final tire
inspectors suffered a total of 24 musculoskeletal injuries from 1989 to
1993 (Tr. 5293). According to Dr. DeHart's calculations, the final tire
inspectors had an injury incident rate of 9.9 which, when compared to
the BLS rate of 8.4, results in a relative risk of 1.178 (Tr. 5298-5300;
Exhibit C-976). Based upon this data, as well as his review of the job,
Dr. DeHart concluded that the increased rate of injury among the
inspectors was "associated" with their job (Tr. 5301).

[93]: Ms. McCuin's 1992 slip and fall injuries are obviously acute in
nature and it is not clear from her testimony what type of injury she
suffered in 1993 to her left foot.

[94]: Dr. Schulze identified lifting, elevated and extended reaches, and
standing as the stressors associated with the module operator job (Tr.
2040-50, 2052-54, 3456-57; Exhibit C-684 at 320). Using the 1991 NIOSH
guidelines, he analyzed one of the tire lifts performed by the module
operator assuming a frequency rate of four lifts per minute and a weight
of 13 pounds, but his conclusions regarding a recommended weight limit
are not clear from his report (Tr 3464; Exhibit C-684 at 322-338).

[95]: Dr. DeHart and his team concluded that as a group, module
operators suffered a total of 26 musculoskeletal injuries from 1989 to
1993 (Tr. 5284-85). According to a data entry form for one of the module
operators evaluated, the stressors which Dr. DeHart's team considered
under this job were stressful work postures, frequent elevated/extended
reaches, torso flexions, long periods of standing, frequent twists, and
frequent lifts (Tr. 5643-44; Exhibit C-494). According to Dr. DeHart's
calculations, the module operators had an injury incident rate of 8.8
which, when compared to the BLS rate of 8.4, results in a relative risk
of 1.04 (Tr. 5285, 5291; Exhibit C-976). Based on this data, as well as
his review of the job, Dr. DeHart concluded that "the [job's] ergonomic
risk factors are the cause of this increased injury" (Tr. 5292).

[96]: The Secretary also relies upon the workers compensation records
for three employees who did not appear at the hearing. However, as
indicated /supra/, these records were not offered for the truth of their
contents and therefore, cannot be considered proof of actual harm.

[97]: Although Ms. Parks indicated that she reinjured her back while
working as a module operator, it is not clear from her testimony when
this event occurred or what type of injury she suffered. Without further
documentation, the injury cannot be considered as proof of the type of
harm alleged.

[98]: Although Mr. Dyer also suffered from a double hernia while working
as a module operator, there is nothing in the record to indicate that
this condition can be considered of the type alleged under this citation
instance. In addition, the injury does not appear in any of the relevant
injury records submitted into evidence here.

[99]: Although Mr. Dyer is listed in Dr. DeHart's final set of injury
data, the injury listed - left wrist/right thumb strain/swelling - does
not correspond to his testimony regarding a ganglion cyst (Exhibit C-987).

[100]: Although Ms. Tomlin is listed twice in Dr. DeHart's final set of
injury data, one entry states only "right ankle", while the other states
"right knee strain", an injury which she never mentioned during her
testimony (Exhibit C-987).

[101]: As was the case /supra/ under Instance N, forearm or wrist injury
does not constitute an ergonomic stressor.

[102]: Although his report fails to identify most of these activities as
stressors, Dr. Schulze testified at the hearing that the stressors
associated with this job include increased static posture time, torso
flexions, stress on the shoulder muscles, and repetitive movements such
as lifting, twisting, turning, and abduction of the elbows (Tr. 2029-30,
3465-69; Exhibit C-628 at 136). According to his testimony, these
stressors are likely to result in back injuries, shoulder strains, and
wrist strains (Tr. 2033). Having identified the lifting of tires varying
in weight from 13 to 21 pounds as a stressor, Dr. Schulze's report
contains a lifting analysis performed under the 1991 NIOSH guidelines
which assumes a frequency rate of 10 lifts per minute and indicates that
the recommended weight limit for this task is about four pounds (Exhibit
C-628 at 136, 138-40).

[103]: Dr. DeHart and his team concluded that as a group, classifiers
suffered a total of four musculoskeletal injuries from 1989 to 1993 (Tr.
5326-27). He testified that the team identified lifts, torso flexions,
hazardous work surfaces, forceful throws, and long periods of standing
as the stressors associated with this job (Tr. 5554, 5557). According to
Dr. DeHart's calculations, the classifiers had an injury incident rate
of 14.2 which, when compared to the BLS rate of 8.4, results in a
relative risk of 1.7 (Tr. 5327; Exhibit C-985). Based on this data, as
well as his review of the job, Dr. DeHart concluded that the increased
injury rate among classifiers was caused by the ergonomic stressors
present in their job (Tr. 5327-28).

[104]: In his report, Dr. Schulze identified the pushing, pulling, and
turning of carts to be the stressors associated with this job (Tr. 3471;
Exhibit C-628 at 364). He testified that pulling carts in this manner is
hazardous because of the risk of injury to the back, shoulder, elbow or
ankle (Tr. 2066-68). Using a device known as a "force transducer", Dr.
Schulze determined that the average force a verifier must exert in order
to move a cart is 55 pounds per foot, an amount which he claims is
unacceptable for young healthy males according to a Liberty Mutual
Insurance Company study (Tr. 2065-66, 2069-70, 3472; Exhibit C-628 at
362, 364). However, he admitted that the weight of the object being
moved affects the amount of force required to move it, but he does not
know the weights of any of the carts he used to measure average force
here (Tr. 2071, 3476-81).

[105]: Dr. DeHart and his team did not review the verifier job as part
of the relative risk analysis (Tr. 5208). Among the plant doctors, Dr.
Smith-Horn specifically testified that she never treated any verifiers
during her tenure at Dayton (Tr. 4407-08). Dr. Lundy testified, however,
that he was involved with measuring the amount of force required to move
carts in the warehouse, but did not provide any further details
regarding what the results were or how this information was used (Tr.
4789-90).

[106]: An entry for Mr. Pennington appears in the OSHA 200 log for 1993,
but the recorded injury is described simply as "chest" (Exhibit C-673).

[107]: Although his report fails to identify some of these activities as
stressors, Dr. Schulze testified at the hearing that the stressors
associated with this job include high heat, vibrating tools, infrequent
lifting, torso flexions, extended reaches, and standing (Tr. 1634-41,
3482-84; Exhibit C-628 at 107-08). According to his testimony, vibration
causes the blood vessels to constrict, allowing pressure to build up in
joint spaces; therefore, the use of a vibrating hand tool such as a
ratchet can lead to the development of epicondylitis or bursitis of the
elbow, or carpal tunnel syndrome (Tr. 1660- 61). Dr. Schulze also links
the high temperatures in this work area with the development of heat
stress problems (Exhibit C- 628 at 108). Using the 1991 NIOSH
guidelines, Dr. Schulze analyzed two lifting tasks performed by MB
changers (Exhibit C-628 at 110-11). He found no problem with lifting a
24-pound unidentified "mold component", but concluded that lifting a
61-pound component exposes an MB changer to the hazard of back injury
such as muscle strain or disk rupture (Tr. 1643-48, 1657- 58).

[108]: Dr. DeHart and his team concluded that as a group, MB changers
suffered a total of 15 musculoskeletal injuries from 1989 to 1993 (Tr.
5328-29). According to a data entry form for one of the MB changers
evaluated, the stressors which Dr. DeHart's team considered under this
job were forceful hand grips, awkward postures, frequent arm abductions,
high heat area, torso flexions, extended/elevated reaches, heavy
lifting, long periods of standing, and long periods of operating
vibrating tools (Tr. 5640- 41; Exhibit C-519). According to Dr. DeHart's
calculations, the classifiers had an injury incident rate of 29.1 which,
when compared to the BLS rate of 8.4, results in a relative risk of 3.46
(Tr. 5329; Exhibit C-986). Based on this data, as well as his review of
the job, Dr. DeHart concluded that the increased injury rate among MB
changers was caused by the ergonomic stressors present in their job (Tr.
5329-30).

[109]: Mr. Church worked as a creel attendant from 1989 until some
unspecified time in 1993 (Tr. 4101-03, 4105, 4140-41, 4159-60). Aside
from a back injury he sustained in November of 1993 while working as a
let-off operator, Mr. Church provided no testimony regarding his injury
history as a Dayton employee (Tr. 4107, 4154-57).

[110]: Although his report focuses primarily on the spool lifting task,
Dr. Schulze testified that torso flexions and extended reaches are
stressors which are part of the lift (Tr. 1593-94, 1596, 3502-04;
Exhibit C-628 at 162). Using the 1991 NIOSH guidelines, he analyzed the
lift assuming a spool weight of 44 pounds and a frequency level of two
lifts per minute; he found the recommended weight limit to be 14 pounds
(Tr. 1592-93; Exhibit C-628 at 164). Therefore, Dr. Schulze concluded
that the spool lift is hazardous, placing the creel attendant at risk
for back injury (Tr. 1596-97).

[111]: Dr. DeHart and his team concluded that as a group, creel
attendants suffered a total of 5 musculoskeletal injuries from 1989 to
1993 (Tr. 5314). According to a data entry form for one of the creel
attendants evaluated, the stressors which Dr. DeHart's team considered
under this job were frequent lifting, frequent torso flexions, frequent
twists and reaches, and long periods of standing (Tr. 5641-42; Exhibit
C-532). According to Dr. DeHart's calculations, the classifiers had an
injury incident rate of 26.7 which, when compared to the BLS rate of
8.4, results in a relative risk of 3.18 (Tr. 5315-17; Exhibit C- 981).
Based on this data, as well as his review of the job, Dr. DeHart
concluded that the ergonomic stressors present in the creel attendant
job "led to the significant increase in musculoskeletal injury" (Tr. 5316).

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