Their activities do include lifting tools and supplies while servicing heating and cooling equipment, but “I don’t believe these activities are of a repetitive nature in terms of muscoloskeletal disorder (MSD) definitions,” said Herzog.

Fraud Protection, Doctor Availability

He also raised questions about how an employer could accurately determine the source of an MSD injury, citing a National Council on Compensation Insurance study showing that 50% of lower back injury claims are fraudulent.

Herzog recommended that OSHA include safeguards to avoid employers’ being held responsible for injuries that occur, say, in a backyard ball game, rather than on the job. “I should hope you would build in some safeguards, such as a cost-effective appeals process, a penalty section for fraudulent claims, or other safeguards.”

He further questioned a provision requiring that a health care provider determine whether or not a worker has suffered an MSD injury. “In most rural communities, you’re often lucky to have a town doctor who may or may not be versed in MSDs, let alone be an MSD expert.”

Realistic Protection

Finally, the current design of the Work Restriction Protection regulation (910-945), which is the same for all sizes of companies, poses problems for small businesses, such as many hvacr contractors, who may not have or be able to afford alternative tasks or even job rotation, said Herzog.

“How do you make this work for a company of five or six people,” he asked. “Isn’t there a built-in disincentive to stay working?”

When an employee works less but gets full pay, the employer still has to carry the financial load without any outside help, and without getting comparable work to justify the pay in some cases, said Herzog.

“A worker who chooses to stay at home in some states can earn up to 80% to 90% of his or her salary on Worker’s Compensation and not do any work at all.

“Unfortunately,” he continued, “the major fraud against Worker’s Compensation is that some workers will fake an injury to stay on long-term disability.” This, in turn, can drive up their employer’s premium.

In addition, even employers who don’t have workers on disability will see an increase in their premiums to pay for what could be a large influx of MSD-related workers who decide to stay home. Herzog called upon OSHA to explore other options for small companies.