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90 percent of employers do not comply with OSHA recordkeeping regulations, resulting in underreporting by 38 percent of the surveyed employers
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.
According to a recently published study, as many as 90 percent of the employers participating in the annual US Bureau of Labor Statistics (BLS) Survey of Occupational Injuries and Illnesses (SOII) do not comply with OSHA recordkeeping regulations, resulting in underreporting of work-related injuries and illnesses by 38 percent of the surveyed employers [see Wuellner, Sara E., MPH and Bonauto, David K., M.D., MPH, “Exploring the Relationship Between Employer Recordkeeping and Underreporting in the BLS Survey of Occupational Injuries and Illnesses,” American Journal of Industrial Medicine [first published online Aug. 5, 2014; DOI 10.1002/ajim.22350]. The study confirms the concerns in the SOII’s accuracy that a number of occupational injury specialists have voiced now for more than a decade.
The Annual BLS Estimates of Injuries and Illnesses
As part of its overall operation, the BLS provides the US Department of Labor and interested parties with annual estimates of non-fatal injuries and illnesses through a sampling of approximately 230,000 of the nation’s employers. Just prior to the beginning of the new calendar year, the BLS notifies the selected employers that they have been chosen for the annual study. After the end of the ensuing calendar year, the BLS sends those employers special forms on which to record the injury and illness information for the year just ended. The reports are then compared and compiled by the BLS and published–usually in October or November. OSHA regulations require that a selected employer cooperate in completing the survey.
Wuellner/Bonauto Study Concentrated on Employer Recordkeeping Practices
Previous studies had questioned the accuracy of the SOII data. For example, the fact that the employer data was collected so soon after the end of the survey year was known to hinder the reporting of cases including illnesses with long latencies, injuries that worsen over time, and those that are difficult to attribute to work. The Wuellner/Bonauto study sought to discern if employer recordkeeping practices might also be an important source of SOII’s incomplete case capture.
Wuellner and Bonauto conducted “semi-structured” interviews of occupational injury and illness record keepers from Washington State establishments that participated in the 2008 BLS SOII. They also matched 2008 BLS SOII data to independent data that had been supplied by the employers to the Washington State Department of Labor and Industries (L&I). The state of Washington was chosen because of some important characteristics of the state’s workers’ compensation system. L&I regulates workers’ compensation insurance for all non-federal employers operating in Washington State covered by the state’s industrial insurance laws. In addition, L&I administers the Washington state fund workers’ compensation insurance program, which is the sole workers’ compensation insurance provider for all employers in the state except those covered by an alternate workers’ compensation system, such as the Longshore and Harbor Workers’ Compensation Act, the Federal Employees’ Compensation Act, or those who self-insure.
All filed workers’ compensation (WC) claims with an injury date between 10/31/2007 and 3/1/2009 were eligible for linking to SOII cases reported for the 2008 survey year. While all WC claims do not meet the SOII case reporting criteria, no exclusions were made prior to linking to allow for possible differences in classification across the two systems. SOII cases were linked to WC claims using worker name, sex, date of birth or age, date of injury, employer name, employer address, and a Washington State-assigned Uniform Business Identifier (UBI), which can be used to identify an employer across state data systems. To broaden the pool, establishments were selected from the 2008 Washington BLS SOII respondents and stratified by four characteristics: establishment size; industry; number of establishments operated by employer; and completeness of occupational injury and illness reporting.
If possible, the researchers interviewed the individual listed as the 2008 SOII contact for the employer. The interviews lasted approximately one hour and were recorded with the participant’s consent. The semi-structured interviews covered a range of topics including: company injury and illness reporting process; compliance with the OSHA recordkeeping regulations; and company uses of injury and illness data.
The researchers contacted 271 Washington establishments that participated in the 2008 BLS SOII. Forty-seven percent (127 establishments) agreed to be interviewed, although 14 scheduled interviews were cancelled by the establishment, resulting in 113 completed interviews. Three establishments were excluded from the analysis because someone other than the interviewee completed the OSHA recordkeeping forms and the interviewee was unable to speak to the establishment’s OSHA recordkeeping practices. Among the remaining 110 interviews, 80% of respondents had completed the 2008 SOII for the establishment.
OSHA Recordkeeping Practices
The researchers carefully examined the establishments’ OSHA recordkeeping practices, noting:
> OSHA recordkeeping forms were maintained in 97 of the 110 interviewed establishments;
> No OSHA records were maintained at 13 establishments;
> Seven of the 13 establishments that did not complete OSHA forms were partially exempt from OSHA recordkeeping requirements, requiring them to complete OSHA recordkeeping forms only during participation in the SOII;
> The other 6 establishments were required to maintain OSHA forms each year, regardless of BLS survey participation.
The researchers determined that respondents from the 97 establishments that maintained OSHA records did not fully understand what to record as a case, when to document a case, and how to classify it. Half of the establishments that maintained OSHA logs reported using the OSHA case definition to determine which cases to record on the log, while the other half extended inclusion to all WC claims, all workplace injuries and illnesses that resulted in a medical visit, or all injuries reported to the respondent regardless of severity.
The researchers also observed that:
> The responsibility of recording injuries among temporary workers was widely misunderstood. Many of the establishments indicated they relied upon the advice of the temporary staffing company in making a determination as to whether or not to include the injury in the SOII report.
> Only one in ten respondents (n = 11) complied with all four measured aspects of the OSHA recordkeeping regulations: using the OSHA case criteria to determine eligibility for OSHA records; recording cases with the required time limit; correctly assigning severity for DAFW and DJTR cases; and appropriately recording injuries among temporary workers.
Thirty-eight Percent of Study Participants Underreported Injuries
As noted above, the researchers determined that 38 percent of the Washington state establishments underreported work-related injuries and illnesses in the 2008 BLS SOII responses. The greatest difference between complete reporters and under-reporters was found for the practice of logging all injuries and illnesses resulting in a visit to a health care provider, a case definition employed by 24 percent of complete reporters compared with only 5% of incomplete reporters. In short, fully 90 percent of the SOII respondents that were interviewed failed to comply with one or more of the required components through either a misunderstanding of or a disregard for the OSHA recordkeeping regulations. 12 percent maintained no OSHA injury and illness records at all. Where OSHA injury and record reports were maintained, many of the observed practices did not comply with OSHA regulations.
The researchers stressed that while there is some overlap between OSHA recordable cases and WC claims, each system has distinct independent eligibility criteria. Many of the establishments failed to take that into account. The researchers also indicated that when respondents equate SOII cases with WC claims, SOII estimates of injuries and illnesses become a reflection of the state-based WC system, rather than a standard definition employed nation-wide. Factors such as waiting periods for wage replacement eligibility, restrictions related to coverage of conditions, choice of health care provider, and benefit adequacy differ from state to state. These differences could easily impact a worker’s decision to file a claim. The respective injuries should be reported as part of the SOII process in any event, however. Often this was not done.
The researchers observed various barriers to communication between injured workers and the establishment record keeper, between the record keeper and the health care provider, and between the record keeper and the BLS data collection staff. These barriers worked to diminish the accuracy of the SOII reports. Additionally, the researchers noted that business practices that incentivize low injury rates may result in the underreporting of injuries; directly rewarding workers for low injury rates (through safety incentive programs) may be an effective method of dissuading a worker from reporting the injury to the employer and as well from filing a WC claim.
Limitations of the Study
The study acknowledged several limitations. For example, the researcher’s findings may have been affected by recall and/or self-reported data. The researchers did not review the establishments’ OSHA logs to determine if the information gleaned during the interview process matched that supplied to OSHA. During the interviews, the record keepers may have provided socially desirable responses, particularly since violations of the standards discussed during the interview are punishable under the law. Respondents in establishments that had not experienced an injury or illness in years might have had difficulty answering some of the procedural questions offered to them.
Additionally, the study judged completeness of injury reporting based solely on SOII and WC data, two data sources that are likely correlated. The utilization of a third data source, such as a worker survey, would have provided an additional perspective on the issue of underreporting of injuries. The researchers added that an additional constraint was the inability to verify SOII reports of injuries among temporary workers within the WC data.
It may also not be possible to generalize the study’s findings to establishments in other states, since Washington state-specific WC insurance regulations and administrative practices potentially impacted the recordkeeping. Moreover, since only 42 percent of the establishments that were initially contacted actually participated in the study, the recordkeeping practices of those establishments that did not participate may be sufficiently different from the study participants to alter the observed relationships. For example, if an establishment’s officials were aware that its practices were either dubious or substandard, the officials would likely have refused to participate.
In addition, the study was limited to one year. Some within the WC community maintain that the real value of the SOII surveys is to compare data from year to year. To the extent that the underreporting is relatively consistent from year to year, the SOII survey may still be valuable, in spite of its underreported data.
Of course, the study is not without its detractors. For example, Eric J. Conn, Esq., of Epstein Becker Green, in Washington, D.C., points out that during the Obama Administration, federal OSHA has been extremely focused on the “supposed epidemic of under-recording injuries.” Conn adds that in terms of under-recording specifically, OSHA expended substantial resources on an Injury & Illness Recordkeeping National Emphasis Program, but the results of the numerous inspections in the program disproved OSHA’s hypothesis that under-recording was rampant. “If OSHA’s trained compliance staff was not able to ferret out systemic under-recording in an inspection program designed to find the worst of the worst, I am skeptical of this study’s findings of such wholesale recordkeeping violations,” said Conn. Conn says that the study does, however, support OSHA’s narrative on the topic, that indeed, despite the lack of any evidence of under-recording from OSHA’s inspection program, the Agency has nevertheless pushed ahead with a Recordkeeping rulemaking intended to enhance punishment for recordkeeping violations. Conn cautions, “The reality is, however, OSHA’s proposed rule would actually cause more employers to under-record injuries.”
Others offer additional skepticism. According to Scott Lassila, CSP, CSM, APS, Aon Global Risk Consulting in Houston, Texas, “Most clients I deal with actually over-report or report accidents to be on the safe side whether it meets the recording criteria or not.” But what if a workers’ comp claim appears to be fraudulent? “If the claim was recordable by definition, but the employer thought it was fraudulent and the workers’ comp carrier denied the claim, the employer would not make an entry on their log,” explains Lassila. “While it’s the employer’s decision to not record the claim, they should document the decision for back up.” Lassila also advises employers to review the OSHA “bluebook” found on the OSHA website, which explains who has to maintain logs and who is exempt.
Temporary Workers Fall Into the Cracks
The study suggests that there is a limited comparability of BLS data across employers, industries, or states, that while some establishments report cases in accordance with the OSHA recordkeeping regulations, a substantial group report cases gleaned from WC data. The reviewers suggested that OSHA increase its outreach and improve the training provided, especially regarding injuries among temporary workers. The reviewers caution that education may not be sufficient, that a revision of OSHA forms or instructions that accompany the forms would reach a wider audience than education efforts alone. The BLS could echo such efforts, emphasizing in their survey instructions the responsibility to record injuries among temporary workers and augmenting the survey forms to ease the reporting of these incidents.
Attorney Chuck Davoli, managing partner of Davoli, Krumholt & Price, Baton Rouge, Louisiana, and President of Workers’ Injury Law & Advocacy Group (WILG), who reviewed the study, argues that underreporting of workplace injuries is very much tied to the economy’s increased dependence on temporary workers (temps). According to Davoili, “Many employers look at temps as 1099 independent contractors, or in effect, someone else's problem/responsibility to report.” This perception that temps are not direct employees allows some managers to exaggerate the relative safety of their operations. “Here in Louisiana we routinely see unreported accidents and injuries, in part, because our heavy industrial petro chemical industry utilizes contract labor for most of their construction and maintenance.” By neglecting to report injuries sustained by these so-called “contractors” or “sub-contractors,” the safety record of the hiring firm remains relatively untarnished.
“Another way to circumvent a lost time incident, and avoid reporting, is to terminate the injured worker’s employment either before a medical opinion is rendered restricting work, or based on some other reason such as a rule violation, tardiness/absenteeism, or intoxication/drug use. If the employee is terminated before lost time classification, it never gets reported,” says Davoli.
Acknowledging the study leaves some remaining questions to be answered—Wuellner and Bonauto admit limitations in the research methodology—the study’s findings should not be easily cast aside. Their research shows that many employers conflate the separate issues of OSHA reporting and workers’ compensation claims work. As the study indicates, a typical SOII responder spends but 24 minutes completing the survey and faces no penalties for inaccurate responses. Responders gain no particular benefit from spending additional time or in assuring that the answers follow OSHA guidelines rather than state workers’ compensation rules. Even if the researchers have overstated somewhat the level of underreporting of work-related injuries and illnesses, until employers have a reason to become more fully engaged in the data collection process, the BLS’s plans to modify data collection forms and procedures may have limited impact on overall data quality. Employer groups and others who contend that employers accurately report injury statistics within the SOII survey can perhaps commission appropriately drawn statistical studies to replace their anecdotal statements. There is more work to be done, but the Wuellner/Bonauto study is a step in the right direction.
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