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October 20, 2004
To: Members of A10 ANSI Accredited Standards Committee (ASC)
From: Timothy R. Fisher, CSP, ARM, CPEA, Secretary, A10

A10.40 DRAFT STANDARD Moving Toward Approval

Dear Members:

Hopefully all is going well for you and the Fall is safe for you and your family. As you are certainly aware, the A10.40 draft standard has continued to generate interest in the SH&E community. Your past efforts to revise the A10.40 Standard are much appreciated by Chairman Richard King, Vice-Chair Jim Tomaseski, the secretariat, and the end users of the draft standard. Through your hard work and dedication we are hopefully creating a document that is moving toward the final steps of approval.

Per the direction of Chairman King and Vice-Chair Tomaseski following a recommendation from the A10.40 Subgroup leadership you will find the following materials:

* A second draft of the A10.40 standard, which was withdrawn following committee disapproval after the first round of committee ballot and public review. The A10.40 Subgroup Chair has worked with his subgroup to review the responses and revise the draft standard to hopefully reach consensus.
* A second ballot for the draft standard. The ballot period will end 11/29/2004.

Highlights of Major Changes to the September 2004 Draft of A10.40
As you review the draft standard you will note there are significant changes to the draft standard based upon the generic and specific comments offered by the A10 ASC. To this end, the highlights below have been identified by the A10.40 Subgroup as being of special interest to the full committee:

* The purpose and scope have been clearly delineated.
* Definitions have been added for ergonomics and musculoskeletal injuries.
* Temperature has been deleted as a risk factor.
* Reference to JHAs has been changed to mention of fitting it into your overall safety program.
* Evaluation of effectiveness is by demonstration of reduction in risk factors not comparison with referenced standards.
* Return to work section has been recast as Injury Management.
* Section 9 references have been moved to a non-mandatory appendix.
* Appendices have been labeled clearly as non-mandatory.
* Appendix from the former Washington State standard has been deleted.

Responses to Generic Comments on A10.40
It is important to note that because the draft was not approved during the first ballot, the entire document is being balloted again. However, the A10.40 Subgroup does believe there is value in answering some of the outstanding issues that were raised during the recently concluded ballot. To this end, the comments are below along with answering language and rationale from the A10.40 Subgroup:

There is no scientific evidence to show that these conditions are work-related.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. There have been hundreds of scientific studies published in the peer-reviewed literature that supports the work-relatedness of musculoskeletal disorders. The literature has been thoroughly reviewed by NIOSH and the National Academy of Sciences and they both concluded that work is a causative factor in these injuries. While not all studies support this conclusion, the weight of the evidence is clearly in favor of a causative relationship. There are also studies, which demonstrate this relationship specifically in the construction industry. There are very few, if any scientists, which dispute that work, can cause these conditions or at least is one causative factor.

Non-occupational factors play an important (if not the most important) role in the etiology of these conditions.

Answer: The A10.40 Subgroup believes this comment is non-persuasive Likewise, no one disputes that non-occupational factors can contribute to the development of the injuries. That however does not negate the role of occupational factors or hazards. The goal of this standard is to reduce the risk of occupational exposures, thereby reducing the overall risk. If the committee wants to deal with the non-occupational factors (e.g. those that can be dealt with like obesity) as well, we can include language to that effect, but this would be placing responsibilities on the employer for activities outside of their control, which is probably not feasible. It is not the intent or purpose of this standard to make determinations of the work-relatedness of musculoskeletal injuries. That is best left to a medical professional or workers compensation judge. In addition, employers can always challenge false claims of injuries in the workers comp system.

These injuries cannot be objectively diagnosed and many (if not most) workers are faking them.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. While soft tissue injuries are difficult to diagnose, physicians have been diagnosing them for years and have the responsibility to make determinations as to if workers have these conditions and if they are work related. Even though they may be difficult to diagnose, that does not make them less real. If an employer does not believe a claim to be work-related they should not be recording it on their OSHA Log. Yet by every measure (BLS data, workers comp data), construction is shown to have a high level of work-related musculoskeletal injuries, higher than most industries. Some measure of the scope of the problem must be accepted and then we can look at the data using that measure, even though the measure may not be completely accurate (as no measure is). Most studies have shown that the problem of workers submitting fraudulent claims is relatively minor (especially in comparison to the problem of employer fraud, e.g. misclassification of workers). Because construction workers don't get sick days, it is our experience that they often go to work, even though they are injured, possibly risking a more permanent injury, and work in pain just because they need the money. Our studies have shown this is common (40% of surveyed) and certainly much more common than uninjured workers trying to scam the system.

The standard will create a lot of workers comp cases and be very costly to employers to comply with.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. This standard is not designed to address issues of workers compensation. This is a non-responsive comment. Employers who have instituted ergonomics programs have seen an initial rise in reports of musculoskeletal disorders but while the numbers increase they are seeing them earlier and the severity is reduced, people are out less time. As a result the pay back is quick and return on investment is usually less than a year. Most ergonomic interventions are inexpensive (less than $100). Because ergonomic injuries are so costly to contractors (about 40% of workers comp costs), the potential for savings is great. Most employers have found investments in ergonomic improvements be very productive. To cite just one example, in the 1890's Frank Gilbreth made ergonomic improvements to bricklaying work and increased productivity by over 250%.

OSHA will use the standard for enforcement purposes or as the basis for an OSHA standard.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. This standard is not designed to address issues of workers compensation. We have no control over what OSHA does or does not do. The likelihood of OSHA putting out ergonomics standard in the near future is almost zero. Even if OSHA were to put out a standard, it will take several years (5-10) to promulgate and normally comes with a phase in period of several years. So, in the unlikely event that OSHA should adopt this standard, it would probably be 5-10 years before it is enforced. And even if they were to enforce it, it is unlikely that they would cite anyone who was making a halfway decent attempt to comply. Only those egregious cases where employers are completely ignoring the rule would be prosecuted, particularly because of the complicated multi-factorial nature of these injuries.

Employers will incur liability for not complying with the A10 standard.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. Whenever there is an ANSI standard or OSHA standard issued, there will probably be some attorney who will try to use it in litigation. But this is true of every standard. The best defense is a good faith effort to comply with the standard.

A standard is not feasible in construction.

Answer: The A10.40 Subgroup believes this comment is non-persuasive. A task-based standard will work in construction. If we identify places where we can reduce exposure to risk factors known to be associated with injury we can reduce overall risk of injury. This approach has worked in construction, particularly when used with worker participation (e.g. Koningsveld scaffold erection study). All construction standards face the same problem, the transient nature of the workplace.

Responses to Specific Comments on A10.40
In addition to the generic comments there were also a series of specific comments addressing the draft standard and suggesting changes. We have included a matrix of these comments as an attachment to this letter. The A10.40 Subgroup suggests that the A10 ASC review this matrix before casting a ballot.

While you read through the committee ballots and comments you will note that there have been a number of significant changes suggested by committee members, which have been reviewed and some have been included in the second draft. As noted above, a clean version of the draft standard is attached and it is being circulated for a second round of committee ballot and public review.

Respectfully Yours,

Timothy R. Fisher, CSP, ARM, CPEA
Secretary, ANSI Accredited A10 Committee