When the absence of proof could prove the real ergonomic burden

By Tom Davey

Driving through the United States of America is always a view of extremes. This is a new Roman Empire where the world plays American music, watches its movies and television shows while eating its burgers, hot dogs and fried chicken – all while wearing US trainers, fashions and other palpable symbols of American culture. The US, is unquestionably the only remaining super power, having wrestled the Soviet giant to exhaustion in global economic conflict.

Where other historical conquistadors used force of arms to subjugate vassal states, billions of people around the world are peacefully and willingly, co-opted into adopting US culture – happily paying to wear the badges and logos of Coca Cola, McDonalds, KFC, Nike, Disney, Microsoft, IBM and countless others. Traditionally, it was manufacturers who paid to advertise their wares to consumers. Now, by media spin and economic alchemy, today’s consumers fork out their own money to proudly advertise multinationals’ logos.

While US leadership in astrophysics and computer technology is a given, few are aware that world leadership in water treatment and research began 130 years before Walkerton when the American Water Works Association was formed in St. Louis. This was over three decades before Henry Ford revolutionized industrial production with his Model T.

This negation of the engineering presence is also reflected in US politics. Engineers and scientists are especially scarce in the US cabinet and state legislatures, Presidents Herbert Hoover and Jimmy Carter being two exceptions to the rule. Hoover was a brilliant businessman and politician who, unfortunately, inherited an economy poised for the Great Depression. One apocryphal story tells of a woman who, when told that Hoover was an engineer, remarked: “Oh I thought he was a gentleman.” President Jimmy Carter had nuclear engineering experience in the US Navy. While he always behaved like a gentleman, he was, inevitably, better known as a peanut farmer.

While US engineering remains an invisible profession, there are legions of elected lawyers in American state and federal politics. The legal profession is dominant in popular movies and television shows. Cinematic courtrooms, in fact, have replaced Wild West saloons as the backdrop staple of contemporary movies, a matter of art imitating reality. For unquestionably, the US has far more lawyers in politics than any other profession, and Los Angeles County alone is said to have more lawyers than Japan.

Appropriately for Hollywood’s home turf, the US legal profession provides an abundance of heroic figures in movies and television programs. Moreover, many more lawyers have become award-winning novelists than have journalists. John Grisham, William Bernhardt and Scott Turow are but three of the many lawyers who have written novels, many of which were turned into movies. Journalists, who also earn their living by the written and spoken words, rather surprisingly, have not matched the creative output of their legal counterparts. But perhaps our newshounds have already satiated their creative appetites in their reportage of environmental issues which, all too often, has displayed imaginative conclusions unsupported by scientific realities.

The foundation of North American jurisprudence is onus probandi – the burden of proof – where the accused do not have to prove their innocence. This is a fundamental difference with legal systems in some other countries where the accused must prove their innocence, rather than the state prove their guilt. As governments have far more money and resources than individuals, onus probandi has also been a bedrock in British, Canadian, and Australian legal systems, to name but three others. But eternal vigilance is the price which must be paid to maintain judicial freedom.

There are some disturbing thoughts about a new Occupational Safety and Health Administration regulation which, claims the Washington Legal Foundation¹, was rushed through in the waning days of the Clinton Administration. The Washington-based WLF states that OSHA², the federal agency responsible for workplace safety, has a new and sweeping regulation that will affect Mom and Pop grocery stores and Fortune 500 corporations alike. “OSHA’s rule will govern the height of desks, the angle of computer monitors, even posture when employees lift a phone book,” a WLF spokesman told me.

Wishing to check further into the legal status of the OSHA Regulation, I contacted an independent writer in Washington for clarification. He replied: “The ergonomics standard is not a law, but a regulation. Laws are passed by our legislative branch (President signs). Regulations implement laws in detail, under authority delegated to the executive branch by the legislature. Although there are lots of procedural rules, the president has much power over what regulations are issued. The Ergonomics Standard (a regulation, under the Occupational Safety and Health Act) was issued in final form in November. ‘Final’ means it would be very hard to flat-out revoke because of procedural requirements.”

The Foundation says that OSHA’s stated purpose is to reduce the number of work-related musculoskeletal disorders (MSDs). To implement this, OSHA has relied on the “fuzzy discipline of ergonomics”, defined as “the science of fitting the job to the worker”. OSHA’s rule imposes several conditions, among them mandatory medical care and time off or reduced work responsibility – both with full pay, says WLF.

The Foundation feels that OSHA has committed a terrible folly by issuing such an ambitious government mandate without a sound basis, because OSHA cannot accurately identify what exactly causes an MSD. Nor can anyone be sure that the elaborate measures it prescribes will reduce workplace injuries. “But armies of plaintiffs’ lawyers are itching to take advantage of this government fiasco anyway,” says the WLF.

WLF has powerful connections in US federal politics including the controversial Attorney General, John Ashcroft – now America’s top lawyer – who has served on WLF’s Board. Ironically, if the Washington Legal Foundation is correct in its assertions, then US lawyers may have struck the litigation motherload. Even if only one employee reports a single work-related MSD, an employer must develop a full-blown ergonomics program for that job and for all other jobs requiring similar physical activities. Brushing aside due process, says the Foundation, OSHA’s rule will force employers to prove that employee’s aches and pains are not work-related.

One expert, David Piaseck³ wrote: “The standard applies to ‘All General Industry’ with the only exception being agricultural, construction, or maritime operations. The scope of this standard is so broad that whether you’re flipping burgers, running a machine, delivering mail, assembling computers, loading trucks, mopping the floor, sitting in front of a computer, dealing blackjack, or helping patients into wheelchairs, you’re covered.”

In a phone interview, a WLF lawyer told me that OSHA issued its ergonomics rule in November 2000, but the first effective date for certain aspects of the rule occurred in January 2001. Businesses must have an ergonomics program in place in October 2001 if they have had employees who have reported work-related musculoskeletal injuries. OSHA has been sued by the Washington Legal Foundation, along with a long list of groups that represent private industry. The regulation will be challenged, as being unlawful on procedural, statutory, and constitutional grounds.

In my opinion, if the WLF is correct, the ergonomics regulation would reverse the long held protection that the burden of proof gives citizens against the might of governments. A federal agency is being sued by the WLF, yet John Ashcroft, the Attorney General of the Bush Administration, had previous links to the WLF. The ensuing legal battles might end up being the stuff that dramatic movies are made of. Only in the United Torts of America, eh?

¹www.wlf.org
²www.osha-slc.gov/ergonomics-standard/
³www.inventoryOps.com

Editor’s note: Since this editorial was printed, we received the following release: Congress Repeals Ergonomics Rule, Handing Victory to WLF (Washington Legal Foundation vs. OSHA). A brief update appears on page 73 of the May 2001 issue of ES&E.