[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
   HIDDEN TRAGEDY: UNDERREPORTING OF WORKPLACE INJURIES AND ILLNESSES

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JUNE 19, 2008

                               __________

                           Serial No. 110-97

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            [Vacancy]
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 19, 2008....................................     1

Statement of Members:
    Altmire, Hon. Jason, a Representative in Congress from the 
      State of Pennsylvania, prepared statement of...............    50
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     5
        Prepared statement of....................................     6
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
    Sanchez, Hon. Linda T., a Representative in Congress from the 
      State of California, prepared statement of.................    51

Statement of Witnesses:
    Fellner, Baruch, Esq., Gibson, Dunn, & Crutcher, LLP, on 
      behalf of the U.S. Chamber of Commerce.....................    24
        Prepared statement of....................................    25
    McLellan, Robert K., M.D., MPH, FACOEM, representing the 
      American College of Occupational and Environmental Medicine    13
        Prepared statement of....................................    14
    Rosenman, Kenneth D., M.D., FACPM, FACE, professor of 
      medicine, Michigan State University College of Human 
      Medicine...................................................    29
        Prepared statement of....................................    31
    Ruser, John, Assistant Commissioner for Safety and Health 
      Statistics, Bureau of Labor Statistics.....................    18
        Prepared statement of....................................    21
    Span, A.C., former employee, Bashas' Distribution Center.....     8
        Prepared statement of....................................     9
    Whitmore, Bob, former Chief, OSHA Division of Recordkeeping, 
      U.S. Department of Labor...................................    33
        Prepared statement of....................................    35


   HIDDEN TRAGEDY: UNDERREPORTING OF WORKPLACE INJURIES AND ILLNESSES

                              ----------                              


                        Thursday, June 19, 2008

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:37 a.m., in Room 
2175, Rayburn House Office Building, Hon. George Miller 
[Chairman of the Committee] presiding.
    Present: Representatives Miller, Kildee, Woolsey, Tierney, 
Holt, Grijalva, Bishop of New York, Sarbanes, Hirono, Yarmuth, 
Hare, Courtney, Shea-Porter, McKeon, Wilson,Kline, and Foxx.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor; 
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis, 
Policy Advisor,Subcommittee on Workforce Protections; Brian 
Kennedy, General Counsel; Danielle Lee, Press/Outreach 
Assistant; Sara Lonardo, Junior Legislative Associate, Labor; 
Alex Nock, Deputy Staff Director; Joe Novotny, Chief Clerk; 
Meredith Regine, Junior Legislative Associate, Labor; Michele 
Varnhagen, Labor Policy Director; Michael Zola, Chief 
Investigative Counsel, Oversight; Mark Zuckerman, Staff 
Director; Robert Borden, Minority General Counsel; Cameron 
Coursen, Minority Assistant Communications Director; Ed Gilroy, 
Minority Director of Workforce Policy; Rob Gregg, Minority 
Senior Legislative Assistant; Jim Paretti, Minority Workforce 
Policy Counsel; Molly McLaughlin Salmi, Minority Deputy 
Director of Workforce Policy; Hannah Snoke, Minority 
Legislative Assistant; Linda Stevens, Minority Chief Clerk/
Assistant to the General Counsel; and Loren Sweatt, Minority 
Professional Staff Member.
    Chairman Miller [presiding]. The Committee on Education and 
Labor will come to order for the purposes of conducting a 
hearing on the issue of underreporting of workplace injuries 
and illnesses.
    And I recognize myself for the purposes of an opening 
statement.
    The Occupational Safety and Health Act of 1970 requires the 
U.S. Department of Labor to collect and compile accurate 
statistics on occupational injuries, illness and fatalities in 
the United States.
    Accurate injury and illness records help the Occupational 
Safety and Health Administration better allocate its resources, 
accurately target its inspections, and evaluate the success of 
its efforts to improve the health and safety of American 
workers.
    Every time top officials at the Department of Labor and 
Occupational Safety and Health Administration have appeared 
before Congress, they have cited declining injury, illness and 
fatality numbers to demonstrate their effectiveness at 
protecting America's working men and women.
    When Assistant Secretary Foulke has testified before the 
committee, whether on OSHA's failure to issue standards to 
protect workers, OSHA's failure to address the fatal ``popcorn 
lung'' disease, or OSHA's failure to mitigate combustible dust 
hazards or OSHA's shortage of inspectors, he has cited record-
low injury and illness statistics.
    Secretary Foulke has essentially told the committee that if 
fewer workers are being injured on the job, the agency must be 
doing something right. However, a growing amount of evidence 
suggests that the workplace and injury statistics Secretary 
Foulke cites are grossly inaccurate.
    Today we will hear about the growing number of academic 
studies that conclude that the Department of Labor is actually 
counting and reporting as few as one-third of all workplace 
illnesses, injuries and deaths.
    Some of the undercounting can be blamed on the fact that 
millions of public employees and self-employed workers are not 
required to report injuries and illnesses to the Labor 
Department. Some of it is the result of the difficulty in 
counting occupational illnesses like cancer or asthma that may 
appear years after workers' initial workplace exposure.
    However, critics also correctly point to a more significant 
reason why it is difficult to get accurate injury and illness 
data: The nation's workplace injury and illness report card is 
based upon a system of self-reporting by employers.
    This flawed system gives employers an incentive to 
underreport injuries. The fewer injuries and illnesses an 
employer reports, the less likely it will be inspected by OSHA 
and the more likely it will pay lower premiums for workers' 
compensation.
    There is also mounting evidence that a number of employers 
are engaging in intimidation in order to keep workers from 
reporting their own injuries and illnesses. A recent Charlotte 
Observer investigation on the hazardous working conditions in 
North Carolina's poultry industry revealed a shocking record of 
worker abuse and exploitation, often leading to crippling 
injuries and illnesses.
    The Observer also uncovered concerted efforts to 
discipline, intimidate and fire workers in retaliation for 
reporting serious on-the-job injuries. The Observer found that 
workers were forced to return to work immediately after having 
surgery so that the company would not have to file for workers' 
compensation.
    I want to commend the Charlotte Observer for their amazing 
work on this important story on revealing working conditions 
that remain hidden to most Americans.
    We learned about workers with shattered ankles, workers 
whose hands went numb after thousands of repetitive motions, 
and workers who suffered serious knife cuts while on the job. 
But none of these injuries appeared on the poultry company's 
accident or injury logs, as required by law.
    We also read about the very same poultry processing plant 
proudly claiming a perfect safety record--records that were 
hard to believe if you know anything about the hazardous 
working conditions.
    Underreporting of on-the-job injuries and illnesses is not 
a new problem, nor is it an isolated one. It happens in job 
sites across different industries and throughout the entire 
country.
    As demonstrated by the extensive report released in this 
committee today, it is a regular practice for the steelworkers 
to avoid detection and therefore retaliation by management by 
keeping their injured hands in their pockets. This is known as 
the ``bloody pocket syndrome.'' A recent Transportation 
Committee hearing also revealed similar patterns in the rail 
industry.
    And the threats are not just limited to workers. We will 
hear testimony today that occupational physicians are often 
pressured to improperly report and provide inappropriate 
treatment to injured workers in order to keep the incidents off 
of the OSHA log.
    Although there is widespread agreement that workplace 
injuries and illnesses are woefully underreported, OSHA refuses 
to recognize that the problem exists. The agency stubbornly 
refuses to perform thorough audits, which further calls into 
question the accuracy of the statistics it relies on.
    Today we will hear testimony from a long-time OSHA official 
about the agency's failure to seriously address this problem. 
Some will dismiss recordkeeping problems as insignificant 
paperwork violations, but these infractions are anything but 
insignificant. Without accurate injury and illness statistics, 
employers and workers are unable to identify and address safety 
and health hazards and to ensure that workers get appropriate 
medical treatment.
    We cannot properly evaluate the status of our nation's 
workplace safety and health laws in this country if we do not 
start with accurate information. We simply must not allow the 
lack of information to permit hazardous working conditions to 
go unaddressed, putting workers' limbs and lives at risk.
    The purpose of today's hearing is to evaluate the extent 
and the causes of this problem and to learn what we can do to 
improve reporting in order to do more to protect workers' 
health and safety.
    I am grateful to all of our witnesses for taking the time 
to join us today, and I look forward to your important 
testimony.
    At this point, I would like to recognize Congressman 
McKeon, who is the senior Republican on the committee, for his 
opening statement.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Good morning. Welcome to today's hearing on the underreporting of 
workplace injuries and illnesses.
    The Occupational Safety and Health Act of 1970 requires the U.S. 
Department of Labor to collect and compile accurate statistics on 
occupational injuries, illnesses and fatalities in the United States.
    Accurate injury and illness records help the Occupational Safety 
and Health Administration better allocate its resources, accurately 
target its inspections, and evaluate the success of its efforts to 
improve the health and safety of American workers.
    Every time top officials at the Department of Labor and 
Occupational Safety and Health Administration have appeared before 
Congress, they have cited declining injury, illness and fatality 
numbers to demonstrate their effectiveness at protecting America's 
working men and women.
    When Assistant Secretary Foulke has testified before this 
committee--whether on OSHA's failure to issue standards to protect 
workers, OSHA's failure to address the fatal ``popcorn lung'' disease, 
or OSHA's failure to mitigate combustible dust hazards or OSHA's 
shortage of inspectors--he has cited record-low injury and illness 
statistics.
    Secretary Foulke has essentially told this committee that if fewer 
workers are being injured on the job, then the agency must be doing 
something right.
    However, a growing amount of evidence suggests that the workplace 
and injury statistics Secretary Foulke cites are grossly inaccurate. 
Today we will hear about the growing number of academic studies that 
conclude that the Department of Labor is actually counting and 
reporting as few as one-third of all workplace illnesses, injuries, and 
deaths.
    Some of the undercounting can be blamed on the fact that millions 
of public employees and self-employed workers are not required to 
report injuries and illnesses to the Labor Department. Some of it 
results from the difficulty in counting occupational illnesses like 
cancer or asthma that may appear years after workers' initial workplace 
exposure.
    However, critics also correctly point to a more significant reason 
why it is difficult to get accurate injury and illness data: The 
nation's workplace injury and illness report card is based on a system 
of self-reporting by employers.
    This flawed system gives employers an incentive to underreport 
injuries: The fewer injuries and illnesses an employer reports, the 
less likely it will be inspected by OSHA and the more likely it will 
pay lower premiums for workers compensation.
    There is also mounting evidence that a number of employers are 
engaging in intimidation in order to keep workers from reporting their 
own injuries and illnesses.
    A recent Charlotte Observer investigation on hazardous working 
conditions in North Carolina's poultry industry revealed a shocking 
record of worker abuse and exploitation, often leading to crippling 
injuries and illnesses.
    The Observer also uncovered concerted efforts to discipline, 
intimidate, and fire workers in retaliation for reporting serious on-
the-job injuries.
    The Observer found that workers were forced to return to work 
immediately after having surgery so that the company would not have to 
file for workers compensation.
    I want to commend the Charlotte Observer for their amazing work on 
this important story on revealing working conditions that remain hidden 
to most Americans.
    We learned about workers with shattered ankles, workers whose hands 
went numb after thousands of repetitive motions, and workers who 
suffered serious knife cuts while on the job. But none of these 
injuries appeared on the poultry company's accident and injury logs, as 
required by law.
    We also read about the very same poultry processing plants proudly 
claiming perfect safety records--records that are hard to believe if 
you know anything about these hazardous working conditions.
    Underreporting on-the-job injuries and illnesses is not a new 
problem. Nor is it an isolated one: It happens in job sites across 
different industries and throughout the entire country.
    As demonstrated by the extensive report released by this committee 
today, it is a regular practice for steelworkers to avoid detection and 
therefore retaliation by management by keeping their injured hands in 
their pockets.
    This is known as ``bloody pocket syndrome.'' A recent 
Transportation Committee hearing also revealed a similar pattern in the 
rail industry.
    And the threats are not just limited to workers. We will hear 
testimony today that occupational physicians are often pressured to 
improperly report and provide inappropriate treatment to injured 
workers in order to keep incidents off of the OSHA log.
    Although there is widespread agreement that workplace injuries and 
illnesses are woefully underreported, OSHA refuses to recognize that a 
problem exists.
    The agency stubbornly refuses to perform thorough audits, which 
further calls into question the accuracy of the statistics it relies 
on. Today we will hear testimony from a longtime OSHA official about 
the agency's failure to seriously address this problem.
    Some will dismiss recordkeeping problems as insignificant paperwork 
violations. But these infractions are anything but insignificant.
    Without accurate injury and illness statistics, employers and 
workers are unable to identify and address safety and health hazards 
and to ensure that workers get appropriate medical treatment.
    And we cannot properly evaluate the status of our nation's 
workplace safety and health laws in this country if we do not start 
with accurate information.
    We simply must not allow a lack of information to permit hazardous 
working conditions to go unaddressed, putting workers' limbs and lives 
at risk.
    The purpose of today's hearing is to evaluate the extent and causes 
of this problem and to learn what we can do to improve reporting in 
order to do more to protect workers' health and safety.
    I am grateful to all of our witnesses for taking the time to join 
us today. I look forward to your important testimony.
    Thank you.
                                 ______
                                 
    Mr. McKeon. Thank you, Chairman Miller. And good morning.
    We are here today to examine how the Department of Labor 
collects statistics on workplace injuries, illnesses and 
fatalities.
    Under OSHA's recordkeeping system standard, employers 
record and report work-related injuries, illnesses and 
fatalities. This data is then used to evaluate the 
effectiveness of the agency's practice and to target industries 
and companies with high evidence rates for future inspection.
    I understand that today's hearing was triggered, in large 
part, by a series of newspaper articles that were published 
earlier this year in which it was alleged that a certain 
business has not been properly or accurately reporting its 
employees' injuries and illnesses to OSHA.
    Such an allegation is troubling and certainly warrants 
further investigation. But, Mr. Chairman, you know as well as 
anyone that I hesitate, and I think we all hesitate, to draw 
broad-based conclusions from examples that have not been fully 
investigated.
    For that reason, I hope today's hearing is approached as an 
opportunity to listen and learn, rather than to seek evidence 
that supports existing conclusions.
    OSHA's recordkeeping standard is an important tool that 
allows us to monitor workplace safety and target initiatives 
that can reduce injury and illness. Because of its importance, 
I appreciate the opportunity to look more closely at the data-
collection methods used for the recordkeeping standard. The 
information gathered through this standard helps ensure 
effective enforcement of workplace safety standards.
    I also think we need to look more closely at the guidance 
offered to employers about what to record, what to report and 
when to do so. Employers are held responsible for compliance 
with this standard, which is why it is important that they be 
given clear guidance about their responsibilities.
    I expect that the discussion today may turn to questions 
about the accuracy of the data associated with the 
recordkeeping standard. It is a valid concern, and that is why 
I look forward to hearing from our witnesses with the Bureau of 
Labor Statistics about the audit process in place to ensure the 
integrity of the data reported and collected under this 
standard.
    Ultimately I think the greatest value we can draw from 
today's hearing is a greater understanding of the mechanisms in 
place to ensure the prompt and accurate reporting of relevant 
workplace injury and illness data. I look forward to such a 
discussion.
    And I yield back the balance of my time.
    [The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Thank you Chairman Miller, and good morning. We're here today to 
examine how the Department of Labor collects statistics on workplace 
injuries, illnesses, and fatalities.
    Under OSHA's recordkeeping standard, employers record and report 
work-related injuries, illnesses, and fatalities. This data is then 
used to evaluate the effectiveness of the agency's practices and to 
target industries and companies with high incidence rates for future 
inspection.
    I understand that today's hearing was triggered in large part by a 
series of newspaper articles that were published earlier this year, in 
which it was alleged that a certain business has not been properly or 
accurately reporting its employees' injuries and illnesses to OSHA.
    Such an allegation is troubling, and certainly warrants further 
investigation. But Mr. Chairman, you know as well as anyone that I 
hesitate--and I think we all must hesitate--to draw broad-based 
conclusions from examples that have not been fully investigated.
    For that reason, I hope today's hearing is approached as an 
opportunity to listen and learn, rather than to seek evidence that 
supports existing conclusions.
    OSHA's recordkeeping standard is an important tool that allows us 
to monitor workplace safety and target initiatives that can reduce 
injury and illness.
    Because of its importance, I appreciate the opportunity to look 
more closely at the data collection methods used for the recordkeeping 
standard. The information gathered through this standard helps ensure 
effective enforcement of workplace safety standards.
    I also think we need to look more closely at the guidance offered 
to employers about what to record, what to report, and when to do so. 
Employers are held responsible for compliance with this standard, which 
is why it's important that they be given clear guidance about their 
responsibilities.
    I expect that the discussion today may turn to questions about the 
accuracy of the data associated with the recordkeeping standard. It's a 
valid concern, and that's why I look forward to hearing from our 
witness with the Bureau of Labor Statistics about the audit process in 
place to ensure the integrity of the data reported and collected under 
this standard.
    Ultimately, I think the greatest value we can draw from today's 
hearing is a greater understanding of the mechanisms in place to ensure 
the prompt and accurate reporting of relevant workplace injury and 
illness data. I look forward to such a discussion, and yield back the 
balance of my time.
                                 ______
                                 
    Chairman Miller. I thank the gentleman.
    Again, let me welcome the witnesses to today's hearing. We 
look forward to your testimony. And we certainly appreciate 
that time that you are giving over to the committee inquiry.
    Let me begin by introducing A.C. Span, Jr. He worked for 6 
months at Bashas' Distribution Center, a food warehouse and 
distribution center located in Chandler, Arizona. Originally 
from Chicago, A.C. worked in home construction before moving to 
Arizona. He is the father of an 18-year-old daughter. And he 
worked as a baler at Bashas', and in doing that, he loaded and 
unloaded trucks, sorted pallets, cleaned ice cream totes, and 
flattened cardboard boxes. In January of 2008, he was fired 
from Bashas'.
    Dr. Robert McLellan is an immediate past president of the 
American College of Occupational and Environmental Medicine. He 
is a board-certified occupational medicine physician; 
additional certification in family medicine. Dr. McLellan has 
extensive experience as an occupational medical consultant to 
business and a wide range of economic sectors, including health 
care, manufacturing, nuclear energy and public safety.
    Baruch Fellner is representing the U.S. Chamber of 
Commerce. He is a partner in Gibson, Dunn & Crutcher in 
Washington, D.C., practicing in the area of labor relations. He 
has also worked in the Solicitor's Office at the Department of 
Labor and in the Appellate Court Branch of the National Labor 
Relations Board. Mr. Fellner received his B.A. from George 
Washington University and a law degree from Harvard Law.
    John W. Ruser has served as assistant commissioner for 
safety, health and working conditions at the U.S. Bureau of 
Labor Statistics since November 2006. Dr. Ruser is responsible 
for the Census of Fatal Occupational Injuries, the Survey of 
Occupational Injuries and Illness, and special surveys. Dr. 
Ruser holds Ph.D. and M.A. degrees in economics from the 
University of Chicago and a B.A. in economics from Princeton 
University.
    Dr. Kenneth Rosenman is a professor of medicine and chief 
of the Division of Occupational and Environmental Medicine at 
Michigan State University. Dr. Rosenman is board-certified in 
internal medicine and occupational medicine, and he received 
his medical degree from the New York Medical College in 1975. 
He is a fellow at the American College of Epidemiology and the 
American College of Preventative Medicine. He also has 
published approximately 145 articles on occupational and 
environmental disease.
    Bob Whitmore is in charge of OSHA's injury and illness 
recordkeeping activities in the Office of Statistical Analysis 
since 1988 and was employed as an economist in the Bureau of 
Labor Statistics from 1972 until 1990. He has been the 
Department of Labor's expert witness on OSHA recordkeeping 
litigation and a member of the OSHA's significant case team and 
has personally reviewed all the egregious and significant 
recordkeeping cases since late 1986. He obtained his B.S. 
degree in economics at the University of Baltimore in 1972. And 
he is speaking today on behalf of himself and not representing 
OSHA.
    As we informed the witnesses, because of the importance of 
getting complete, full and truthful testimony, the witnesses in 
an investigative hearing before the committee in Congress are 
sworn in. And our witnesses will be sworn today.
    So before we move to your testimony, if I could ask you to 
please stand and raise your right hand.
    [Witnesses Sworn.]
    Let the record show that the witnesses answered in the 
affirmative.
    And thank you very much for that.
    And now, Mr. Span, we will hear from you.
    Under our system, a green light will go on when you begin 
to testify, which gives you 5 minutes. And then 4 minutes into 
your testimony, an orange light will go on and give you an idea 
to start to wrap up, but we want you to complete your thoughts. 
And then a red light will go on when your 5 minutes is up. But, 
again, feel free to complete your sentences or your thoughts at 
that point.

     TESTIMONY OF A.C. SPAN, JR., FORMER EMPLOYEE, BASHAS' 
                      DISTRIBUTION CENTER

    Mr. Span. First of all, Mr. Chairman, I would like to thank 
you and the committee for giving me the opportunity to be here 
in Washington and testify at this hearing.
    My name is A.C. Span. I recently moved to Arizona from 
Chicago, Illinois. In doing so, I heard wonderful things about 
the Bashas' Corporation, so I applied for a position there, and 
thank God they gave me an opportunity to go to work. I was told 
I would be part of the Bashas' family. I was also told that it 
would be an open door.
    Being an employee there, I was employed on the baler. That 
is the department that shreds the paper and unloads the tractor 
trailers. I was given 5 minutes of training on the heavy 
equipment that I must operate on an 8-hour basis.
    As a baler, I witnessed a lot of debris scattered around on 
the docks as well as the plates, and it was about my concern 
about me being a diabetic that, you know, I had to pay 
attention to the things that was around me. Because I also 
witnessed people getting run over, getting their fingers 
smashed and picking them up, scared to report these accidents, 
because of the fact of Bashas' policies, which Bashas' has a 
policy of a point system, with 16 points and you immediately 
walk out the door.
    And also they have another policy with the injury. If you 
get hurt on the job and you report it, you are going to light 
duty, from making $19 to $20 an hour, your pay is dropped, you 
know. So a lot of people that work there have been there for 
years. They can't afford for their pay to drop to minimum 
wages, considering the price of gas and everything else there 
in Arizona.
    As I started working, I witnessed a lot of things that need 
to be changed there, you know. So me and some more people that 
work with me decided to get a safety committee going. We tried 
to approach the Bashas' Corporation many a time, you know. And 
we had a petition. And every time that we went, the door was 
actually closed in our face.
    So we decided to call OSHA and have them to come in. And it 
is sad that OSHA came in and they gave us the investigation 
very poorly. Because, you know, when I drive a car and the 
speed limit says 35 miles per hour and I am doing 40, I am 
being punished for it. And OSHA did not--they wrote a report, 
and they had Bashas' fix certain things, but it was sad that, 
you know, there wasn't even a smack on the wrist.
    And here it is, a plant that people are being hurt on a 
daily basis, and they are scared to report it because of the 
fact that Bashas' is punishing them for it, you know? So most 
of the workers there do not, do not at all, report any injuries 
because of the fact that the policy that the Bashas' 
Corporation had set forth.
    And I would like to take the time to--medical, you have to 
wait 6 months before any medical is provided for you there. And 
it is sad that the workers have to go through this, and they 
are going through it today.
    Very little training at all. You know, when you are hired 
there, you are just out there. You are being thrown out there, 
and this is the way you have to get the job done.
    At the Bashas' Corporation, the order selectors, they take 
the orders for 166 stores. You are put on a time limit to have 
these pieces and have them ready within a certain length of 
time, or you can be either suspended or fired. You are given 
points for these things.
    So with the lack of the training to operate this heavy 
equipment, as well as the pressure that they put on you to pull 
these orders, it is chaos.
    And at the time that OSHA did come in, it is surprising and 
alarming that the company will shut down their operations. 
While OSHA was in the building, we were told not to get on any 
heavy equipment, you know. And I am surprised that OSHA didn't 
catch on to this as well, that the whole plant was just in 
there sweeping, you know.
    And it is sad that all this stuff is happening, and OSHA 
was supposed to be there for us. We contacted OSHA, but we have 
no response or anything of that nature. In terms of the safety, 
you know, it is sad that people have to go to work and to look 
over their shoulders or watch to make sure they don't step on 
any nails or for a guy to get on a two-ton pallet jack and 
drive with no training, you know, it is a very scary sight, you 
know, even to imagine that this is happening. I never 
experienced anything like this before.
    And also, you know, to see my fellow employees get ran over 
and have their toes amputated as well as their fingers smashed, 
and they are just taking tape to tape their fingers back up 
because they are scared to report these injuries, because of 
the fact that you will get punished for them. And this 
punishment goes toward the point system, and this punishment 
also goes toward my pay scale getting cut.
    And, you know, it is not right at all. And I am sitting 
here to testify from my experience, what I have seen. And I 
hope that we can make a difference and a big change.
    [The statement of Mr. Span follows:]

Prepared Statement of A.C. Span, Former Employee, Bashas' Distribution 
                                 Center

    Thank you Chairman Miller, Representative McKeon, and Members of 
the Committee for holding this hearing and for the opportunity to 
testify. My name is A.C. Span and it is indeed an honor to be here in 
Washington for my first time and to testify today at this important 
hearing. Less than a year ago, I moved to Arizona and after hearing 
about what a great place it was to work, applied and accepted a job at 
Bashas' Distribution Center in Chandler, Arizona. It was clear to me 
almost instantly that there are serious safety and health problems at 
that Center and I am here today to tell you about my experience working 
for Bashas'.
    Prior to moving to Arizona, I lived in Chicago, Illinois and worked 
as a house builder. I was a proud member of Teamster Local 222. Then 
last summer, I moved with my wife to Phoenix, Arizona. Given the good 
things I had heard about the Arizona based grocery store chain--
Bashas', and how hard it was to get a job with them, I was pleased when 
I was offered a job as a baler in the Distribution Center. I couldn't 
wait to be ``part of the Bashas' family.'' I had only been on the job 
for six months before I was terminated for advocating for improved 
workplace safety and for forming a union, which I will talk about 
later. I now work for the Association of Community Organizations for 
Reform Now (ACORN), which is a grassroots organization of low- and 
moderate-income people.
    I started work as a baler on August 8th of last year. I joined 
approximately 800 workers at the warehouse distribution center. The 
Distribution Center distributes food and merchandise to more than 166 
grocery stores primarily located throughout Arizona. Although I had 
been well trained to be a house builder, I did not receive any formal 
training to prepare me for the work I would do at the Center. I believe 
I was partially hired because of my experience building houses. Yet, as 
a baler, I was responsible for loading and unloading trucks going to 
and coming from the stores, sorting pallets, cleaning the ice cream 
totes and flattening and shredding cardboard boxes. This was much 
different work with much different skills than building houses. This 
work involved operating heavy equipment, lifting, pulling and pushing 
crates and cleaning totes with chemicals and disinfectants.
    Before I go into some specific details of injuries at the Center 
and what is and isn't reported, it is important to give you some 
background about the company. There are seven key factors--
    First, new employees do not have any medical insurance until their 
sixth month anniversary.
    Second, new employees get very limited training when they start 
work. I noticed early on that the lack of training and required speeds 
to do the work created a very unsafe work environment. I, along with my 
coworkers in the balers department, work on and with heavy equipment 
without any real training. Most are given only about 10 minutes of 
driving practice on the forklifts and pallet jacks through cones in a 
clear and uncluttered area, not at all like real the real work area at 
the Center, which has trash and pallets all over. The forklifts and 
pallet jacks can weigh 5-10 tons each. When I worked there, much of 
this equipment was in bad condition with brakes that didn't work 
properly. There were dock plates that were bent or damaged and many of 
the storage racks were loose and swayed. Plus, the ladders around the 
balers were often broken and unsafe. The combination of all these 
problems, most of which still exist, created an environment where 
workers could and would get injured. Without proper training, 
maintenance, repair and protective equipment and clothing, accidents 
and injuries are just waiting to happen.
    In addition, typically the warehouse floors are covered with nails, 
broken straps, broken wood and broken bottles, which cause the floors 
to be slippery and dangerous. There are protruding nails from broken 
pallets and dust everywhere. Most workers wear sneakers which do not 
protect us from injuries. We also do not have any eye protection, ear 
plugs, gloves, etc. to prevent injuries from any of these common 
hazards.
    In another part of the Center, ``Order Selectors,'' drive forklifts 
to collect orders for stores. They are given strict time limits to 
finish an order and are expected to finish one complete order within 
the time limit. They are penalized with points if they do not finish 
the order in time. The selectors fly down the aisles jumping on and off 
the lifts getting the orders together. I saw a man lose his toe when a 
machine ran over his foot. People get run over all the time because of 
the haste in filling orders. Workers frequently get hurts because of 
the speed and the badly maintained forklifts. However, Bashas' 
routinely blames the workers for causing their injuries.
    Third, Bashas' has a point system that penalizes workers for 
absences and tardiness by giving them points. While workers are not 
supposed to get points for time lost for industrial injury, there are 
many examples of workers who take time off for work related injuries 
and then get points. Workers who get 16 points in a year are 
terminated. Typically you are given two points per missed day. Workers 
who don't maintain 100% of the expected standard for selecting orders 
get points. So, it is easy for the points to add up. In my case, 
receiving points for taking time off for a work related injury could 
have been a potential violation of the Family and Medical Leave Act.
    Fourth, if an employee's injury is severe enough that he or she 
cannot return to the regular job, the worker is put on ``light duty.'' 
Although that sounds reasonable, the company actually drops your pay to 
minimum wage when you are on light duty. So, if you normally make $19-
20 an hour, your pay is cut by more than a one third to minimum wage. 
Few workers can afford that kind of pay cut, especially when they are 
also faced with medical bills. This kind of cut is punishment for 
getting injured on the job.
    Fifth, Bashas' has a policy that workers who get injured or report 
an injury have to be drug tested.
    Sixth, workers are directed to go to the company doctor and not 
their own personal doctor. The Bashas' doctors may send you back to 
work, even if you are not physically ready to go back to work and 
regardless of your medical condition. The Bashas' doctor also 
determines if you need to go on light duty and when you can come off of 
it.
    Finally, the company holds monthly raffles. If your department has 
not had any injuries reported for the month, the entire department is 
eligible for the raffle. If one person reports an injury, the entire 
department is ineligible. The prizes include coupons for dinner, Ipods, 
gameboys, etc. Everyone loves winning and there is great peer pressure 
to keep injuries quiet so you can participate in the raffle.
    All these things create an atmosphere where workers do not want to 
report injuries. I have actually seen workers limping around rather 
than report an injury. Reporting illnesses or injuries can cause you to 
be unpopular with your co-workers, get disciplinary points, have your 
salary reduced and ultimately lose your job. Why take the chance? Most 
workers don't want to and end up staying silent about injuries.
    My injury occurred about three months into the job. One of my jobs 
was to unload trucks filled with empty palettes and product returned 
from stores. The trucks are usually quickly loaded with contents 
shifting during the drive to the Center. This truck had been sitting on 
the lot for awhile. When I lifted the back door of the trailer, a large 
pile of dust came out and went into my eye since I did not have safety 
glasses. My supervisor, who was standing next to me, advised me to go 
and wash off my face and eye. I then returned to work. When I woke up 
the following day, my eye was glued together and the size of a 
baseball. Since I was already scheduled to have two days off, I went 
straight to my doctor. I preferred to go to my doctor since I have 
diabetes and high blood pressure and want to make sure that those 
conditions are taken into consideration for any treatment. After being 
examined, my doctor told me I had a contagious eye infection and took 
me off work for an additional two days. He gave me medication for my 
eye and a letter saying I should allow my eye to heal and not operate 
heavy equipment. Because I had no medical insurance through Bashas', my 
visit was an out-of-pocket expense for me.
    Three days later I returned to work still putting medication in my 
eye. I had called the company about five hours before I was supposed to 
return to let them know that I had been injured. I was told to bring in 
documentation but when I arrived with the letter, the plant manager 
commented that my ``eye was still messed up.'' He started to make noise 
about how I had not reported my injury but my supervisor who had been 
there when I got injured told him he was a witness. This annoyed the 
manager. I think he had wanted to make it clear that this had not been 
a work injury but with the support of the supervisor, that was not 
possible.
    The manager then told me he would need to take points off for my 
missed days. I said that this was a work related injury and that I had 
a doctor's note so I shouldn't get points. I was told that it was the 
company's rule to deduct points and that I would get two points for the 
days off. I told him again I didn't think any points should be taken 
off and he said that ``two points ain't going to hurt you.'' Workers 
should not be penalized for taking time off to recover from a work 
injury. I returned to work to clean out ice cream totes, stack pallets 
with a forklift and run to the freezer--with my eye still swollen. My 
injury was never covered under worker's compensation.
    Besides my own injury, working at Bashas' gave me a first hand look 
at workers in the Distribution Center and I have seen workers with 
broken fingers and toes. One of my co-workers had a toe cut off and 
passed out on the floor. We watched managers debate whether they should 
actually call 911. I have seen countless workers injured by getting hit 
by equipment. I have seen workers with broken limbs and with toes cut 
off. I have watched them struggle between reporting the injury and just 
working with it. I saw one worker actually tape his coworker's broken 
finger so he could return to work. I have seen the great efforts of my 
co-workers to hide injuries rather than report them. I have seen 
workers come to work with the flu rather than face taking time off and 
getting points.
    This is horrible no matter where it occurs but I'd like to remind 
you that this is happening in a food facility. We are moving and 
lifting food that is heading to grocery stores and then being purchased 
by consumers. Not reporting these injuries and illnesses and working 
despite them, is bad for the worker and bad for the consumer.
    Shortly after I started working at Bashas', I saw the serious 
problems at the Center. Along with a couple dozen of my coworkers in 
the baling department, we started talking about the problems and 
decided the best way to improve workplace safety would be to form a 
union. We did not let the company's anti-union attitude--an attitude 
that resulted in 85 allegations of workers' rights violations--deter us 
and we began to act like a union to address our safety concerns. We 
drafted a petition that highlighted the unsafe conditions and how 
fearful workers were to report injuries. We approached management three 
times requesting specific hazards be corrected as well as for a joint 
safety committee to be formed. We proposed that the committee be made 
up of management representatives and hourly workers to address on a 
regular and formal basis safety and health concerns that arose in the 
warehouse.
    We tried three times to meet as a group with a Bashas' management 
team but the door was always closed in our face. Bashas' would only 
agree to meet one-on-one and not as a group. With no luck with the 
company, we eventually contacted the Arizona Division of the 
Occupational Safety and Health Administration and filed a complaint. 
Seventeen workers signed onto the complaint. An additional 70 workers 
signed the original petition. Like the company, OSHA never contacted 
any of the workers who filed the complaint. They did examine the 
warehouse, found some violations and cited the company. They mainly 
focused on the ventilation system in the battery room.
    I think it is important to tell you my impressions about when OSHA 
came for inspections. What was really interesting is that the company 
always seemed to know when OSHA was coming in for inspections. Things 
were quickly repaired, fixed, cleaned--hours before the OSHA 
representatives arrived. Once we were all told not to get on any 
forklift while they were there inspecting. We were told not to do 
anything until they left. So we spent the day sweeping and cleaning. No 
production was done that day. It made me wonder what OSHA was thinking 
when they didn't see anyone actually working during the inspection but 
the company was never questioned.
    We also tried to designate workers who could represent us for the 
OSHA inspections. We picked workers who worked in the Distribution 
Center, making sure we had workers who could tell the OSHA inspectors 
our side of the story and what was really happening at the Center. We 
put their names on the complaint form but OSHA ignored the request to 
speak to these workers. Instead, when OSHA made the inspections, they 
only talked to workers on a list provided by the company. In the end, 
while OSHA solved a few things, they did not fix everything and the 
company was never fined.
    Within two weeks of OSHA issuing the citations, the company 
announced that they planned to make major changes in the baling 
department by outsourcing the jobs. In the end, 29 of us lost our jobs 
as balers. Some were transferred to other jobs but most of us lost our 
jobs at Bashas'--simply for standing up for our rights. On the day I 
was fired, I was simply told that the company did not need me anymore 
and that there were no other jobs available to me at Bashas'.
    We were called troublemakers and told we had bad attitudes. They 
were cleaning house of those workers who were outspoken. The message 
was clear--don't report, don't talk, just keep your mouth shut or else. 
Our goal all along was to make the workplace safer--both in terms of 
safety and health--but also to make the workers feel safe reporting 
problems and injuries. We were just trying to exercise our 
constitutional rights. All workers should have safe working conditions.
    I was raised by my parents to speak my mind. If I am wrong, I'll 
admit it. But, it is my God given right as well as my constitutional 
right to protect myself and stand up when I see a problem. It is also 
my right to work in a safe environment. That was not the case at 
Bashas' and I stood up for myself and my co-workers. Even though I am 
not there anymore, I know there are still problems. Yes, the company 
fixed the ventilation system in the battery room, but there has been no 
increased training; the point system still exists, workers are still 
paid minimum wage on light duty, and workers are still rushed to get 
orders completed. These are things that need to change--not only to 
make the work safer but to provide workers with a safe environment to 
come forward and report injuries. Bashas' may think this Center is 
``state of the art,'' but I know what happens to the workers inside.
    I believe major changes need to be made by Bashas' to correct the 
serious safety and health problems that hurt workers everyday. My 
former employer needs to do more to protect workers and allow them to 
report injuries without repercussions. I think it is time for the 
government to examine the problem with under-reporting and I am glad 
you are holding this hearing today.
    Thank you again for the opportunity to testify and tell you my 
story. Bashas' says it is dedicated to serving Arizona families but I 
know first hand that this commitment does not include their workers or 
the workers' families. It is time that the company and the government 
do what they can to truly serve and protect all Arizona families. I 
urge you to use the power of your offices to help the workers by 
protecting our safety and health at work. Again, thank you for your 
time and I would be pleased to answer any questions that you may have.
                                 ______
                                 
    Chairman Miller. Thank you.
    Dr. McLellan?

 TESTIMONY OF ROBERT MCLELLAN, M.D., IMMEDIATE PAST PRESIDENT, 
 AMERICAN CONFERENCE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE

    Dr. McLellan. Good morning, and thank you for this 
opportunity. I am Robert McLellan, an occupational medicine 
physician and the immediate past president of the American 
College of Occupational and Environmental Medicine, known as 
ACOEM.
    I serve as the chief of the Section of Occupational and 
Environmental Medicine at Dartmouth-Hitchcock Medical Center 
and as associate professor of medicine and community and family 
medicine at Dartmouth Medical School.
    Founded in 1916, ACOEM represents more than 5,000 
physicians and other health-care professionals and is the 
nation's largest medical society dedicated to protecting and 
promoting the health of workers.
    ACOEM's interest in OSHA recordkeeping stems from our role 
as physicians with a dual mission: We provide direct care to 
workers in the clinic, and we serve as public health officers 
of the employed population.
    Over the last year, I had the opportunity to tour the 
country to meet with occupational physicians working in a 
variety of settings. During these visits, physicians reported 
that some employers exerted pressure on them to alter treatment 
and/or return-to-work statements in ways likely to minimize 
OSHA recordability.
    Based on the frequency of this report, I suggested that 
ACOEM convene a special session on OSHA recordkeeping at 
ACOEM's recent annual scientific meeting. My testimony today 
represents the results of preliminary exploration of this issue 
by our college.
    The OSHA log has grown to serve many purposes beyond that 
for which it was originally designed. For example, today, many 
owners select contractors on the basis of the contractor's 
rates for lost work days and total recordable. At its best, 
this practice results in the intensive efforts to improve 
safety. At its worst, however, the spotlight on the log 
produces efforts to make the log look good, rather than placing 
attention on reducing risks.
    ACOEM members report that various incentive programs to 
produce a ``good'' OSHA log have distracted safety programs 
from the primary goal of prevention. When workers and managers 
are promised valuable prizes to avoid recordable injuries, our 
members have observed pressures to underreport. In brief, when 
a single metric becomes the focus of safety efforts, it can 
become distorted by a variety of forces.
    ACOEM has not conducted its own systematic research on this 
issue, but we find anecdotes of distorted reporting troubling, 
indicating a process and a system in need of review because of 
the potential for causing both medical harm and flawed 
statistical results.
    Let me give just a few examples.
    We observe, first, that there is a wide variability in 
employers' understanding and application of the recordkeeping 
standard. Many employers make every effort to comply 
assiduously to the letter of the standard. Others, particularly 
smaller employers, find the rule inordinately complex and 
confusing and complete the log incorrectly through ignorance of 
the rules.
    A number of our members complain that distinctions in the 
standard between first aid and medical treatment are 
nonsensical and drive bad medical practice.
    Several members indicate that selected workers, employers 
and insurance companies have tried to influence medical 
treatment in ways that may result in harm to a worker or, in 
some cases, excessive costs.
    For example, certain employers have asked clinicians to 
write ``Work is tolerated'' on the return-to-work form to avoid 
reporting lost work days. A member reported that the employer 
then expected the worker, with a fractured leg, to sit in a 
wheelchair at a construction site.
    One member relayed an instance where a safety team at a 
site without an on-site medical office inappropriately 
controlled access to health-care providers in the context of 
plant incentive programs that rewarded the absence of 
recordable injuries. She intervened when she learned that after 
a worker was exposed to vinyl chloride, safety personnel had 
applied a hazardous chemical, potash, to the worker's skin 
since they had read that potash could be used to neutralize 
environmental spills.
    In view of these examples and many others detailed in our 
written testimony, ACOEM's advocacy on OSHA recordkeeping is 
quite straightforward.
    Number one, physicians must always do the right thing for 
the patient. Although health-care providers do not have a 
regulatory obligation under the standard, they do have an 
ethical obligation to correctly diagnose, report and treat 
injuries.
    Number two, we believe that OSHA must encourage a better 
understanding of the requirements interpretations of the 
recordkeeping standard.
    Number three, it is time to consider updating the correct 
OSHA recordkeeping standard and its enforcement to minimize 
underreporting.
    Number four, it is time for OSHA to consider undertaking a 
special emphasis program to increase the number of medical 
records reviewed as part of OSHA's Audit and Verification 
Program of Occupational Injuries and Illness Records.
    And, number five, ACOEM supports efforts to broaden the 
suite of occupational health indicators used at a national, 
state and facility level in order to improve the quality of the 
data necessary to prevent work-related injuries and illnesses.
    Our intention today is not to point fingers, but rather to 
seek solutions that are based on what is right for the patient 
and that are grounded in good science and best occupational 
medicine practices.
    Thank you.
    [The statement of Dr. McLellan follows:]

     Prepared Statement of Robert K. McLellan, M.D., MPH, FACOEM, 
  Representing the American College of Occupational and Environmental 
                                Medicine

    Good Morning. I am Robert McLellan, an occupational medicine 
physician and the Immediate Past President of the American College of 
Occupational and Environmental Medicine, known as ACOEM. I serve as the 
Chief of the Section of Occupational and Environmental Medicine at 
Dartmouth-Hitchcock Medical Center and as Associate Professor of 
Medicine and Community and Family Medicine at Dartmouth Medical School. 
ACOEM represents more than 5,000 physicians and other health care 
professionals specializing in the field of occupational and 
environmental medicine. Founded in 1916, ACOEM is the nation's largest 
medical society dedicated to promoting the health of workers through 
preventive medicine, clinical care, disability management, research, 
and education.
    ACOEM welcomes this opportunity to provide our organization's 
perspective on OSHA recordkeeping. Our interest in this subject stems 
from our role as physicians with a dual mission; we provide direct care 
to workers in the clinic and we serve as public health officers for 
employed populations. As clinicians, we have an obligation to provide 
the best, evidence-based care to workers. As a specialty of preventive 
medicine, we also have a responsibility to use epidemiological tools 
such as the OSHA log to design population-based preventive 
interventions.
    In my position as President of ACOEM, I had the opportunity over 
the last year to tour the country and visit with occupational 
physicians and allied health providers working in a variety of 
settings. A concern reported to me during these visits was that some 
employers exerted pressure on occupational physicians to alter 
treatment and/or return to work statements in ways likely to minimize 
OSHA recordability. Based on the frequency of this report, I suggested 
that ACOEM convene a special session on OSHA recordkeeping at ACOEM's 
annual meeting known as the American Occupational Health Conference, 
this year held in New York City, In addition to this session, ACOEM 
recently established a forum on its website to gather additional 
perspectives from our members on their experience with OSHA 
recordkeeping. In the coming months, we look forward to participating 
in a survey of our membership to be conducted by the Government 
Accountability Office, at the request of Chairman Miller and 
Representative Woolsey, and Senators Kennedy and Murray, in an 
exploration of the issue of reporting of work-related injuries and 
illnesses. We expect to publish a position paper in the upcoming 
months, but not before our College has had the opportunity to more 
fully explore options as to how best to further the goal of valid and 
reliable recordkeeping that supports preventive health and evidence-
based medical care. My testimony today therefore represents the results 
of preliminary exploration of this issue by our College.
    From the public health perspective, the OSHA Log was created as a 
tool to describe the burden of occupational injuries and illnesses on 
society. This data drives occupational health and safety resources. It 
is also used to target interventions to address industries and 
processes that carry the greatest risk. When followed over time, the 
log can help evaluate the effectiveness of these interventions. 
However, the OSHA log can only support these functions to the extent 
that it is valid and reliably maintained. Most importantly, society's 
interest in preventing work-related injuries and illnesses is foiled 
when our picture of the true burden of work-related injuries and 
illnesses is distorted.
    Limitations of the OSHA log in serving these basic public health 
functions have long been recognized. Several peer-reviewed articles in 
the scientific literature have concluded that for many reasons, the 
annual BLS survey of employer logs results in substantial under-
reporting of the full extent of work-related injuries and particularly 
illnesses (Azaroff, Levenstein, et al 2002, Boden and Ozonoff 2008, 
Rosenman, Kalush et al, 2006). With reference to other data bases and 
changes in the recordkeeping rules (Friedman and Forst 2007), some 
researchers have questioned whether the apparent decline in injuries 
and illnesses is a true reflection of reality. These conclusions do not 
mean that most employers are not in good faith doing their best to 
accurately comply with the recordkeeping rule. Rather, multiple factors 
are at play.
    The OSHA log was never designed to serve as a single, comprehensive 
metric of occupational health and safety at either the national or 
employer level. By prescription of the OSH Act itself, the 
recordkeeping standard has always excluded first aid cases. As well, 
several sectors of workers are excluded; a problem which is growing 
with the burgeoning number of contingent workers, a workforce estimated 
in a recent article in the Journal of the American Medical Association 
as representing nearly a third of the American workforce (Cummings and 
Kriess 2008). The OSH Act also did not supersede workers' compensation 
law, which often defines compensable injuries and illnesses somewhat 
differently than the OSHA recordkeeping standard. In fact, since the 
turn of this century, the Council of State and Territorial 
Epidemiologists has promoted the use of a suite of 19 different 
occupational health data bases in an effort to capture a more valid 
picture of work related injuries and illnesses (Council of State and 
Territorial Epidemiologists 2008).
    The OSHA log has grown to serve many purposes beyond that for which 
it was designed. When a single metric becomes the focus of safety 
efforts, it can become distorted by a wide variety of pressures. For 
example, OSHA's preamble to the recordkeeping rule cites a stakeholder, 
who commented that ``Today, many owners are selecting contractors on 
the basis of the contractors' rates for lost work days and total 
recordables.'' At its best, this concentration results in intensive 
efforts to improve safety. At its worst, however, the spotlight on the 
log produces efforts to make the log look good, rather than placing 
attention on reducing risks that lead to injury and illness. ACOEM 
members report that various incentive programs to produce a ``good'' 
OSHA log can distract safety programs from the primary goal of 
prevention. When workers or managers are promised a valuable prize to 
avoid recordable injuries, they may pressure each other to under-
report. One ACOEM member reported that a worker came directly from the 
job to the clinic with a very recent, significant laceration. In 
contrast to obvious appearances however, the worker reported that the 
injury had occurred the night before at home and in passing stated that 
to claim otherwise would risk that his fellow workers would lose a 
steak dinner. In another case, the entire plant was told that if they 
had a recordable injury, the whole workforce would lose its bonus. When 
managers' bonuses are dependent on a ``clean'' log, they may make 
efforts to reduce reporting, whether it be by discouraging reporting by 
employees, shifting medical care costs to group health insurance or 
inappropriately intruding on the doctor-patient relationship.
    Although physicians and providers do not have a regulatory 
obligation under the standard, we have an ethical obligation to 
correctly diagnose, report, and treat injuries. The rule allows 
business to use a physician of its choice in the final determination of 
causation, treatment, and work restrictions. At its best, this 
provision allows employers to select knowledgeable physicians. At its 
worst, this provision can lead employers to select physicians not for 
their competence, but for their reliability in declaring that an injury 
is not work related.
ACOEM Members' Perspectives
    ACOEM has not conducted its own systematic research. The following 
comments represent perspectives and anecdotes collected from our 
members.
     Some ACOEM members have observed a wide variability in 
employers' understanding and application of the recordkeeping standard.
     Many employers make every effort to comply assiduously to 
the letter of the standard. In these settings, reporting is encouraged 
and the general rule is to ``treat the patient, not the log.'' The log 
is used to stimulate interventions that improve safety. Unfortunately, 
in some cases, this careful compliance can result in the industry being 
targeted for OSHA inspection because of incidence and severity rates 
that appear above comparable businesses.
     Some employers, in the spirit of training, ask physicians 
if they can make minor alterations to their treatment, if medical 
outcomes are not compromised, to take advantage of regulatory 
distinctions between first aid and medical treatment.
     Some, particularly smaller employers, find the rule 
inordinately complex and confusing, and complete the log incorrectly 
through ignorance of the rules.
     Some employers work closely with in-house or outsourced 
physicians to coordinate administrative functions of recordkeeping with 
the medical providers who best understand the circumstances of the 
worker's health problem. In other cases, an employer's recordkeeper has 
little contact with knowledgeable providers.
     Some of our members point out that the OSHA log is a 
lagging indicator of safety; no matter how accurate, it counts past 
events. These members encourage employers with whom they work to use a 
broad set of metrics to evaluate and promote the health and safety of a 
workplace, such as first aid and near misses, workers compensation 
data, and hazard assessments. Noting that any injury, no matter how 
minor is an indicator of a hazard, several members would rather declare 
all first aid incidents as ``recordable.'' They reason that efforts 
should be devoted to prevention rather than arguing about recordkeeping 
rules.
     Some of our members complain that distinctions that the 
standard make between first aid and medical treatment are nonsensical 
and can drive bad medical practice.
     For example, using a cotton swab to remove a foreign body 
from the eye is considered first aid. Unfortunately, use of a swab may 
damage the cornea. The appropriate tool for the same purpose is a 
needle like tool, called an eye spud, used by a trained health care 
provider. Use of this tool, however, is considered medical treatment.
     The difference between a laceration of only a few 
millimeters, for which a bandaid is sufficient, and a laceration of a 
few centimeters needing sutures is luck, not safety.
     Some members indicate that several parties including some 
workers, employers, and insurance companies try to influence 
occupational medical treatment in ways that may result in medical harm 
to a worker or in other cases, excessive costs to employers. We do not 
know how extensive this problem is, but anecdotes are common enough to 
be a concern. Let me note parenthetically that it is clear some 
employees may demand inappropriate time off or medical treatment and 
that some physicians may comply with those requests, in this case 
resulting in over-reporting rather than under-reporting. However, since 
the focus of this hearing is on under-reporting, we will focus our 
testimony on anecdotal evidence from ACOEM members illustrating how 
some employers, supervisors or safety professionals act in ways that 
are driven primarily for the purpose of minimizing OSHA recordability.
     Some employers willfully misinterpret the ``routine 
functions'' criteria of OSHA to define cases as not recordable. Some 
employers have asked clinicians to write ``Work as tolerated'' on the 
Return to Work form in order to manage the restrictions themselves and 
avoid a paper trail of recordability, for example.
     One member reported an instance where a safety team at a 
site without an on-site medical office, inappropriately controlled 
access to health care providers in the context of plant incentive 
programs that rewarded the absence of recordable injuries. She 
intervened when she learned that after a worker was exposed to vinyl 
chloride, the safety team had applied a hazardous chemical (potash) to 
the worker's skin since they had read that the chemical could be used 
to neutralize environmental spills.
     Some employers send supervisors to the clinic with the 
expectation that they accompany the worker into the exam room to 
contribute to the evaluation of an injured worker.
     Some employers send messages to be attached to medical 
charts directing the physician to opine that the injury was not work-
related.
     Some employers ask occupational health professionals to 
prescribe ``exercise'' instead of physical therapy or to employ 
athletic trainers instead of therapists to minimize recordability.
     Some employers have been known to question the clinician's 
decision to sew up a wound or they have requested Steri-Strips (a type 
of bandaid) in order to prevent recordability.
     Occupational health professionals are asked to review 
treatment by other clinicians to determine if the prescription was 
``really necessary'' in an effort to avoid recordability, clearly in 
violation of OSHA's own interpretations.
     Some of our members report that employers have diverted 
injured workers to other physicians in a community who are apparently 
more willing to comply with an employer's directives to alter care to 
minimize recordability.
Conclusions and Recommendations
    Let me conclude by saying that we believe most physicians and 
employers are trying to do the right thing when it comes to OSHA 
recordkeeping. But we find anecdotal examples of distorted reporting 
troubling, suggesting a process and a system in need of review because 
of the potential for causing both medical harm and flawed statistical 
results.
    No single party is to blame for under-reporting: As often is the 
case, it is a complicated mix of pressures that range from workplace 
practices to health provider policies and government regulations. ACOEM 
has developed strong relationships with multiple constituencies, 
including workers, employers and regulators, and has partnered with 
NIOSH to further the protection of the workforce. It is not our 
intention to point fingers, but rather to seek solutions that are based 
on doing what's right for the patient and that are grounded in good 
science and best practices.
    Our advocacy on this issue is quite straightforward:
     Number one: Physicians must always do the right thing for 
the patient. Although physicians and providers do not have a regulatory 
obligation under the standard, they do have an ethical obligation to 
correctly diagnose, report, and treat injuries. This obligation also 
extends to avoiding unnecessary treatment and disability. These 
principles are built into our Code of Ethics and adhering to them must 
always remain as a key goal. This will be our overriding priority in 
all of our discussions of the issue.
     Number two: We believe that OSHA must encourage a better 
understanding of the requirements contained in the recordkeeping 
standard and the various interpretations and uses surrounding the 
standard. Providing employers with electronic decision-making tools 
that incorporate rule interpretations, for example, could reduce the 
variability in recordkeeping.
     Number three: It may be time to update the current OSHA 
recordkeeping standard and its enforcement to minimize under-reporting.
     Number four: OSHA might undertake a special emphasis 
program to increase the number of medical records reviewed as part of 
OSHA's Audit and Verification Program of Occupational Injury and 
Illness Records (CPL 02-00-138).
     Number five: ACOEM supports efforts to broaden the suite 
of occupational health indicators used at a national, state, and 
facility level in order to improve the quality of the data necessary to 
prevent work related injuries and illnesses.

                               REFERENCES

Azaroff, L. S., C. Levenstein, et al. (2002). ``Occupational injury and 
        illness surveillance: conceptual filters explain 
        underreporting.'' American Journal of Public Health 92(9): 
        1421-1429.
Boden, L. I. and A. Ozonoff (2008). ``Capture-recapture estimates of 
        nonfatal workplace injuries and illnesses.'' Annals of 
        Epidemiology in press.
Council of State and Territorial Epidemiologists (2008). Introduction 
        and Guide to the Data Tables for Occupational Health 
        Indicators. Available at http://www.cste.org/dnn/
        ProgramsandActivities/OccupationalHealth/
        OccupationalHealthIndicators/tabid/85/Default.aspx
Cummings, K. J. and K. Kreiss (2008). ``Contingent workers and 
        contingent health: Risks of a modern economy.'' Journal of the 
        American Medical Association 299(4): 448-453.
Friedman, L. S. and L. Forst (2007). ``The impact of OSHA recordkeeping 
        regulation changes on occupational injury and illness trends in 
        the US: a time-series analysis.'' Occupational and 
        Environmental Medicine 64: 454-460.
Rosenman, K. D., A. Kalush, et al. (2006). ``How much work-related 
        injury and illness is missed by the current national 
        surveillance system?'' Journal of Occupational and 
        Environmental Medicine 48(4): 357-365.
                                 ______
                                 
    Chairman Miller. Thank you very much.
    Dr. Ruser?

TESTIMONY OF JOHN RUSER, ASSISTANT COMMISSIONER FOR SAFETY AND 
         HEALTH STATISTICS, BUREAU OF LABOR STATISTICS

    Mr. Ruser. Thank you, Chairman Miller, Congressman McKeon 
and members of the committee, for inviting me to talk about the 
workplace injury and illness statistics produced by the U.S. 
Bureau of Labor Statistics.
    The BLS provides annual estimates of workplace injuries, 
illnesses and fatalities from two separate programs. These are 
the Census of Fatal Occupational Injuries and the Survey of 
Occupational Injuries and Illnesses, often called SOII. It is 
this survey that has come to be the focus of much of the 
undercount allegations, so it will be the focus of my remarks 
today.
    The survey is a federal-state cooperative program that 
estimates the number and rate of new non-fatal workplace 
injuries and illnesses. The data are obtained from a sample of 
employers who gather their information from OSHA logs and 
supplementary materials they keep throughout the year.
    Because the data come from OSHA logs, the injuries and 
illnesses counted by our survey are OSHA-recordable cases only. 
These cases may differ from those counted in other data 
systems, such as workers' compensation.
    An important advantage of the survey is that it provides 
the most occupational injury and illness counts available for 
the nation and consistently across states. This includes 
estimates by state and industry that state policymakers use to 
track their own injury and illness experience compared to 
similar states.
    Other surveillance systems do provide some estimates of 
workplace injuries and illnesses. However, these other systems 
tend to collect only a small amount of data or they are not 
consistent across states.
    Recently, some academic studies have asserted that our 
survey undercounts the total number of workplace injuries and 
illnesses. A review of this literature suggests that three 
different types of undercount are asserted.
    First, it is pointed out that the survey does not count 
most long-latent occupational illnesses such as cancer. The BLS 
has long acknowledged this point. Many work-related illnesses 
take years to develop and may be difficult to attribute to a 
specific workplace.
    A system based on employer records, like our survey, does 
not capture most of these illnesses. Instead, the overwhelming 
majority of new reported illnesses in our survey are those that 
relate more directly to the workplace.
    The undercount literature also mentions that we do not 
count occupational injuries and illnesses incurred by workers 
outside of the survey's scope. That is, the survey does not 
include all public-sector workers, the self-employed, workers 
in households and on small farms.
    To partially address this issue, we are expanding our 
survey to include government workers. Starting with the 2008 
survey, BLS will collect state and local government data for 
all states. This will allow us to provide estimates for some 
high-hazard public-sector occupations, such as police and 
firefighters. In addition, BLS is exploring with OSHA ways to 
collect data for federal government agencies.
    It is more difficult to collect data for other groups of 
workers. These workers, principally the self-employed, are not 
covered by the Occupational Safety and Health Act and are not 
required to record injuries and illnesses.
    In addition, BLS samples establishments from a list of 
those on state unemployment insurances rolls. The self-employed 
are rarely on this list. BLS has held discussions with the 
National Institute for Occupational Safety and Health, or 
NIOSH, and with some other groups on ways to utilize other data 
to estimate workplace injuries and illnesses for these non-
covered groups of workers.
    The last undercount allegation is that our survey does not 
count some worker injuries and illnesses that are within the 
scope of the survey. These allegations come from academic 
studies that match individual case data in the survey to data 
in other surveillance systems, such as workers' compensation. 
The studies typically find that the survey and the other data 
systems each miss a substantial number of cases.
    The BLS takes claims of potential underreporting seriously 
and has begun a number of activities to understand and, if 
necessary, address the issue.
    First, in 2007, BLS conducted a quality-assurance survey 
that indicated that the survey accurately captured the data 
entered on employers' OSHA logs.
    Second, BLS has instituted a program of research to examine 
and extend the previous data matching work. The goal is to 
learn if certain types of cases and respondents show greater 
apparent undercounting and to determine what factors might 
explain these findings.
    The BLS is also undertaking a pilot program of employer 
interviews to learn about injury reporting and illnesses on 
OSHA logs and other data systems.
    This is not an audit of employers' OSHA logs, which is an 
activity outside of BLS's jurisdiction. I want to repeat that: 
This is not an audit of employers' OSHA logs, which is outside 
of the jurisdiction of the Bureau of Labor Statistics.
    In addition, BLS has discussed with NIOSH the possibility 
of conducting research in partnership.
    BLS has already begun research with matched workers' 
compensation and survey data for a single state. Some 
preliminary findings suggest that a variety of factors many 
explain apparent undercount results.
    One explanation is that there are legitimate differences 
between the types of cases that are included in different 
systems. The academic undercount research previously mentioned 
tries to account for these differences.
    Another explanation is that some workers' compensation 
cases for a particular year are entered into the workers' comp 
databases long after the end of that year. In order to be 
timely, our survey collects data soon after the end of the 
calendar year, perhaps before some of these cases have been 
recognized.
    Finally, there are some methodological issues that might 
magnify research estimates of the survey undercount. For 
example, our survey collects data for establishments, while 
workers' compensation data are reported by company. When a 
company has multiple establishments, it is difficult to 
determine in the workers' compensation data for which 
establishment a particular case comes from. This makes matching 
individual cases difficult. And when you fail to match cases in 
these systems, it appear there is an undercount.
    In summary, the BLS believes that a variety of factors may 
account for the research showing differences between the cases 
captured in the Survey of Occupational Injuries and Illnesses 
and in other data systems. The BLS has instituted a program of 
research to understand and explain these differences. Within 
the constraints of its mission as a statistical agency, BLS 
will continue to work to ensure that the survey accurately 
measures within-scope workplace injuries and illnesses.
    Thank you.
    [The statement of Mr. Ruser follows:]

    
    
    
    
    
    
                                ------                                

    Chairman Miller. Thank you.
    Mr. Fellner?

TESTIMONY OF BARUCH FELLNER, PARTNER, GIBSON, DUNN & CRUTCHER, 
         LLP, REPRESENTING THE U.S. CHAMBER OF COMMERCE

    Mr. Fellner. Good morning, Chairman Miller, members of the 
committee. My name is Baruch Fellner. I am an attorney with the 
law firm of Gibson, Dunn & Crutcher here in Washington. And I 
very much appreciate your invitation to participate in this 
important hearing dealing with the extent of underreporting 
under OSHA's complex recordkeeping requirements.
    I am appearing this morning on behalf of the United States 
Chamber of Commerce, the world's largest business federation. I 
am also here in my personal capacity as an attorney who has 
found himself on both sides, having been a participant in the 
development of the law and policy of OSHA during his first 
decade and then a frequent critic of OSHA thereafter.
    I hope to draw on this balanced experience in attempting to 
answer to the critical question that underlies this hearing, 
and that is: Does the current recordkeeping system accurately 
reflect employers' understanding of their OSHA recordkeeping 
requirements?
    Before turning to my prepared remarks, I think it would be 
important to be directly responsive to the chairman's opening 
statement, and specifically to one of the underpinnings of the 
concerns that are expressed by this committee, namely that 
there is an incentive on the part of employers to under-record, 
because the fewer injuries, if I heard correctly this morning, 
the fewer injuries that are recorded, the less likely employers 
are to be inspected.
    In response to the point made by the chairman this morning, 
let me rely on the report of the AFL-CIO. The annual report on 
fatalities in the workplace of the AFL-CIO points out that, as 
a result of the number of inspectors, both state and federal, 
the likelihood of employers to be inspected, the 7 million 
workplaces in the United States to be inspected, is once in 100 
years or so.
    It seems to me that the incentive of underreporting in 
order to make the likelihood to be somewhat longer than once in 
100 years is a small incentive. And I would think that this 
committee should look carefully before it jumps to the 
conclusion that that incentive in any practical or real aspect 
exists for underreporting.
    Based upon 40 years of experience, I believe that the 
steadily declining injury rates provided by OSHA and the Bureau 
of Labor Statistics are and must be substantially reliable. 
These statistics are the linchpin of OSHA's enforcement and 
compliance policies and priorities.
    And let me rely on the words of Richard Fairfax, OSHA's 
director of enforcement under both Democrat and Republican 
administrations, one of the most respected OSHA personnel. And 
he said that inspectors search for underreporting, and the 
Charlotte Observer said, ``But when we try to track it down, it 
goes nowhere.''
    OSHA uses at least two methods to try to track down 
underreporting. First, it compares information supplied by 
employers in high-hazard industries with what is on their OSHA 
300 logs and then further compares those logs with medical 
records.
    And, second, under its site-specific targeting program, it 
not only inspects employers with high injury incidence rates, 
but also selects a statistical sample of employers with low 
rates in order to find out whether or not they are cooking the 
books. And they have concluded that the vast majority of 
establishments are, in fact, maintaining accurate records.
    Let me suggest that those who disagree with that statement 
ignore the complex legal, factual and regulatory framework that 
human resources personnel, on a daily basis, are asked to 
implement. First, human resource personnel are supposed to 
decide whether an injury has occurred; secondly, they are 
supposed to decide whether or not the workplace is the 
discernible cause of that industry.
    Those determinations are clear when an employee, God 
forbid, has an amputated finger as a result of an unguarded 
machine or falls off an unguarded platform and breaks his arm.
    Those decisions are far from clear, and the dispute erupts, 
when the focus shifts to working with pain. And let there be no 
mistake: We do not trivialize pain. Pain is real. But the 
subjectivity of its symptoms and whether those symptoms 
constitute pathoanatomic injury, as well as the difficulty of 
ascertaining discernible causes, raise a number of distinct 
challenges for any recordkeeper who aspires to perfect 
accuracy.
    And let me further suggest to the committee that the issues 
are not only in the subjective area of pain, but they also 
involve the more routine injury recordation questions. Any 
recording scheme that has 46 sections and 200 pages of 
frequently asked questions has got to be a regulation which is 
difficult to implement.
    And just to give you one example, how much Motrin, over-
the-counter Motrin, is prescription-oriented and requires 
recordkeeping as opposed to non-prescription-oriented Motrin 
and doesn't require recordkeeping? When is a soft splint used 
versus a hard splint? A soft splint is not recordable. When is 
oxygen used for purposes of treatment, which is recordable, or 
prophylactically, when it is not recordable?
    Put yourselves in the shoes of the staff that is trying to 
make these decisions on a day-to-day basis. Innocent error is 
unfortunate but inevitable.
    Let me conclude with a modest observation. Employers are 
doing a good and conscientious job. We can all agree that there 
is clearly some underreporting, and OSHA must remain vigilant 
to minimize it in order to maintain the integrity of its 
enforcement and regulation programs. But the committee should 
focus on the scope of the problem.
    The title of this hearing declares in no uncertain terms 
that we are dealing with a tragedy of deliberately hidden 
injuries. Such a conclusion ignores the real efforts that 
employers are making to accurately identify all work-related 
injuries in a complex regulatory and medical environment.
    This concludes my remarks. I would like my more extended 
testimony to be submitted for the record. And I look forward to 
your questions. Thank you.
    [The statement of Mr. Fellner follows:]

 Prepared Statement of Baruch Fellner, Esq., Gibson, Dunn, & Crutcher, 
             LLP, on Behalf of the U.S. Chamber of Commerce

    Chairman Miller, Members of the Committee, my name is Baruch 
Fellner, an attorney with the law firm of Gibson, Dunn & Crutcher, LLP. 
I very much appreciate your invitation to participate in this important 
hearing dealing with the extent of potential underreporting under 
OSHA's complex recordkeeping requirements.
    I am appearing in this hearing on behalf of the U.S. Chamber of 
Commerce, the world's largest business federation, representing more 
than three million businesses and organizations of every size, sector, 
and region.
    I serve on the Chamber's Labor Relations Committee and its OSHA 
Subcommittee. I am also here in my personal capacity as an attorney who 
has found himself on both sides, an observer and participant in the 
development of OSHA law and policy during its first decade and a 
frequent critic of it thereafter. I hope to draw on that balanced 
experience in attempting to answer the critical question that underlies 
this entire matter: does the current recordkeeping system accurately 
reflect employer's understanding of their OSHA recordkeeping 
requirements?
    Some have suggested that the answer to that question is, ``no.'' 
Indeed, in the last several years, the charge of underreporting has 
become something of a professional mantra. In perhaps the most 
comprehensive of these studies, Azaroff, et al. have identified several 
``filters'' in the current recordkeeping process at which 
underreporting could occur, including possible motivations of both 
workers and employers for suppression of information.\1\ Essentially, 
the allegations are twofold: first, employers are deliberately 
underreporting because of a perverse incentive structure that 
encourages them to make their workplaces appear as safe as possible. 
Second, employees are incentivized not to report injuries because they 
fear stigma or retaliation.
    I respectfully submit that both of these claims overstate the 
extent of and motive for underreporting. Based upon almost 40 years of 
experience, I believe that the steadily declining injury rates provided 
by OSHA and the Bureau of Labor Statistics (``BLS'') are and must be 
substantially reliable. These statistics are the lynchpin of OSHA 
enforcement and compliance policies and priorities. That is precisely 
why the Agency inspects workplaces not only with high injury rates, but 
also those with low ones. Thus, as I will discuss in greater detail 
below, the appropriate mechanisms for detection are already in place. 
Many of the witnesses before this panel want OSHA to discover 
underreporting that simply is not there. In the words of Richard 
Fairfax, OSHA's Director of Enforcement under both Democrat and 
Republican administrations, inspectors search for underreporting but 
``[w]hen we try to track it down, it goes nowhere.'' \2\ My testimony 
today discusses that search and why the numbers it yields are far more 
reliable than critics claim.
A. OSHA's own audits establish that underreporting is minimal and 
        concentrated among very few workplaces
    Let us be clear that no one is suggesting that employer candor 
about injury rates should be taken for granted. To its credit, OSHA 
recognizes that some may try to game the system by deliberately 
suppressing the number of injuries actually occurring. That is why it 
conducts an annual OSHA Data Initiative (ODI) analysis of its audits of 
employer injury and illness recordkeeping. After compiling occupational 
injury and illness data from around 80,000 establishments in high-
hazard industries, ODI ensures the accuracy of that data in order to 
measure the Agency's performance in reducing workplace injuries and 
illnesses. The audits first evaluate the internal consistency of 
employer records by comparing the information in an employer's OSHA 300 
Log with the information that employer submits to OSHA. The audits then 
evaluate the reliability of the OSHA 300 Logs themselves by comparing 
them with employees' medical records. If an employer is improperly 
recording injury information or keeping it off the books entirely, OSHA 
auditors would find it through this investigation. The only way that 
injuries could escape OSHA's attention is if employees are seeing 
private physicians without telling their employers, or, more likely, if 
employees simply are not telling anyone at all. But regardless of the 
potential for employee self-censorship, about which more is said below, 
the ODI audit at the very least provides a means of detecting 
underreporting by employers.
    The results of the 2006 ODI audit analysis\3\ demonstrate a high 
level of accuracy in employer records--roughly 95 percent of both total 
recordable cases and DART (days away from work, restricted work 
activity, and job transfers) injury/illness cases. Furthermore, a small 
number of establishments account for a large part of that five percent. 
Four establishments out of a total of 251 accounted for over 27 percent 
of the underrecorded DART cases and almost 25 percent of the cases that 
went entirely unrecorded on the OSHA 300 Logs. Overall, 92.43 percent 
of the establishments audited were at or above a 95 percent accuracy 
rate with respect to underrecording of total recordable cases. That the 
vast majority of establishments are maintaining accurate records, with 
the small degree of inaccuracy concentrated among a few employers, 
demonstrates widespread compliance with OSHA recordkeeping.
    In addition, OSHA has implemented a second check on the accuracy of 
its recordkeeping system. Since 1999, OSHA has conducted Site-Specific 
Targeting inspections (``SST'') for non-construction workplaces with 40 
or more employees. Based on the data received from ODI, SST selects for 
inspection individual workplaces with high rates of DART or DAFWII 
(days away from work injury and illness). But lest anyone conclude that 
this only encourages employers to ``cook the books,'' SST also selects 
for comprehensive inspection a number of establishments reporting low 
rates in traditionally high-rate industries. In 2008, for example, 
approximately 175 of these low-rate establishments will be added to the 
SST primary inspection list. Similarly, a random sample of 
establishments that do not provide rate information in accordance with 
the ODI survey will also be added to the primary inspection list. 
Workplaces that fall into any of these categories--high rates, low 
rates, or non-respondents--may be liable for any recordkeeping 
violations discovered. This enforcement structure is specifically 
designed to discourage deliberate underreporting.
    The success of OSHA's enforcement system is evident in the numbers. 
Of the 61 establishments audited for low rates in 2006, only eight were 
cited for recordkeeping violations. Of these, only five were serious 
enough to warrant a monetary penalty. In 2005, 15 out of 103 
establishments were cited, only seven of which warranted a penalty. 
None of these citations suggested a premeditated attempt to withhold 
information. Instead, employers were cited for a lack of precision in 
what was already recorded and not for ``hiding the ball'' by not 
recording at all.
B. The recordkeeping decisions that employers must make are too complex 
        for any reasonable observer to expect perfect accuracy
            1. Musculoskeletal disorders (``MSDs'')
    Those who are attributing a more malevolent rationale to employers 
must consider the complexity of the legal, factual and regulatory 
framework that human resources personnel are asked to implement. First, 
they must decide whether an injury has occurred. Then, they must also 
determine whether the workplace is the ``discernable cause.'' \4\ Those 
determinations are self-evident when a digit is amputated by an 
unguarded machine or an arm is broken as a result of a fall from an 
unguarded platform; no one at this hearing would seriously suggest that 
such injuries are not being systematically recorded. However, the 
recordkeeping controversy erupts when the focus shifts to working with 
pain. Let there be no mistake--we do not trivialize pain. Pain is real. 
But the subjectivity of its symptoms, whether those symptoms constitute 
pathoanatomic injury, and the difficulty of ascertaining its 
discernible causes, raise a number of distinct challenges for any 
record keeper who aspires to perfect accuracy. These points were 
salient when OSHA promulgated--and the Congress rejected--the 
ergonomics regulation eight years ago, and they remain so today. Given 
the increasingly clear value of and trend toward data driven medicine, 
the decision on the recordability of MSDs in the absence of 
demonstrable injury and in the absence of the workplace as a 
discernable cause is by no means an easy one.
    Furthermore, it appears that the attribution of cumulative pain to 
work-related causes is a matter of generational, subjective 
perception--the older you get, the smarter you get about coping with 
the discomfort ancillary to work and non-work circumstances. Thus, 
since the allegedly debilitating effects of physical activity build up 
over time,\5\ one would expect that if serious underreporting of MSDs 
exists, injuries of older employees would be disproportionately 
represented. In fact, research has shown precisely the opposite. A 
study of health care workers in the Veterans Administration found that 
employees with a service of over five years were almost 40 percent less 
likely to report injuries than their counterparts with less service, as 
were care-givers over 50 years of age.\6\ This explanation accords 
strongly with the findings of a study that compared British employees' 
occupational attribution of repetitive arm strain injuries with 
expected estimates for persons exposed to their particular workplace 
risk factors.\7\ That study found that the ratio of cases that 
employees subjectively deemed work-related to the objectively expected 
attributable number was substantially higher for respondents below the 
age of 50 than above 50. It estimated that this over-attribution ratio 
was nearly twice as large (5.4 to 3.0) if the employee was part of the 
younger cohort.\8\
    In sum, these studies and much more data-driven medicine underscore 
the complexities of the decisions that must be made every day by this 
nation's OSHA record keepers. It is little wonder that OSHA gave up any 
pretense of even defining an MSD in 2000, much less providing a 
separate column for recording MSDs in its recordkeeping regulation. To 
suggest a vast conspiracy to underreport injuries is to ignore the 
complexities of ergonomic issues.
    Dr. Fred Gerr of the University of Iowa, a major proponent of 
ergonomic regulation and hardly an apologist for the business 
community, succinctly summarized these difficulties in an editorial in 
the Journal of Occupational and Environmental Medicine:
    ``It is not news that musculoskeletal disorders are common among 
working age persons and that some considerable proportion of the burden 
of these conditions is attributable to factors other than exposure to 
risk factors in the work place. Given this fact, we are faced with the 
larger question of when is arm pain (or other, more specific 
musculoskeletal disorders) attributable to work? * * * [W]hen a 
considerable proportion of the disease burden would still occur, 
independent of occupational exposures, what method do we have to 
attribute to work those musculoskeletal conditions that are truly work-
related and how do we ensure that is done accurately and uniformly 
across industry and various worker characteristics?'' \9\
            2. Other injuries
    The recording of MSDs is not the only hard question human resource 
personnel must answer in trying to assess whether an injury is 
recordable. Even the more routine, day-to-day decisions, are difficult 
given the complexity of the recordkeeping regulations. Any rule that 
has 46 subsections and over 200 pages of frequently asked questions is 
susceptible to innocent error in its implementation. For example, how 
many milligrams of over-the-counter Motrin is prescription strength 
(recordable as medical treatment) and non-prescription strength 
(nonrecordable)? Did the employee have a soft splint on his wrist (non-
recordable) or a hard splint (recordable)? Was oxygen administered as a 
treatment (recordable) or prophylactically (nonrecordable)?
    Put yourselves in the shoes of the staff charged with making these 
fine-toothed distinctions. Innocent error is unfortunate but 
inevitable. The numbers show that while OSHA must continue to educate 
employers to reduce unintended recordkeeping mistakes--and let us all 
be perfectly candid about that concession--it is not faced with the 
sinister conspiracy of employers hiding injuries that are recordable 
under the law.
C. OSHA's Critics Rely on Dubious Assumptions
    Much of the momentum leading up to this hearing resulted from the 
publication of a study by Kenneth D. Rosenman, et al., in the Journal 
of Occupational and Environmental Medicine (``the Michigan 
Study'').\10\ In calculating the extent of underreporting, the Michigan 
Study relied principally on a workers' compensation database, with an 
average number of reports nearly fifteen times the size of the next 
largest source (35,310 to 2,483). But workers' compensation claim rates 
should not be a referendum on OSHA recordkeeping. First, workers' 
compensation is a completely different statutory and regulatory regime 
that bears no relationship to the definition of recordable injuries 
under OSHA. Second, we should not necessarily assume that every payment 
is the result of a meritorious claim. When faced with questionable 
claims, many employers would simply rather not litigate what 
constitutes an injury or what is work related and just let the 
insurance company make the payout. Third, claim frequency itself is 
falling, suggesting that even workers' compensation rates support the 
conclusion that workplaces are becoming safer.\11\
    Another oft-cited piece of evidence for underreporting is a 
purportedly perverse incentive structure in which employers are 
encouraged to hide actual injuries in order to avoid OSHA targeting 
inspections. The reality is that the size of these incentives has been 
drastically overblown. The information in OSHA 300 Logs does not create 
liability for workers' compensation or any other insurance scheme since 
it does not indicate whether the employer or worker was at fault, nor 
does it indicate whether an OSHA standard was violated. Employers are 
made explicitly aware of this on the Log coversheets.\12\ Moreover, we 
must recall that a substantial proportion of purportedly underrecorded 
cases are MSDs,\13\ which only rarely trigger enforcement activities. 
No ergonomics regulation exists, and only the most egregious MSD 
violations can be cited for a ``recognized hazard'' under the General 
Duty Clause. Since January 2001, only 19 such citations have been 
issued. Instead, OSHA has implemented non-mandatory guidelines for 
employers. If failure to follow a guideline does not give rise to an 
enforceable citation, employers have no incentive to deliberately 
underreport MSDs.
    What employers do have to worry about, however, is doctoring the 
record. As discussed above, they are far more likely to be penalized 
for excluding recordable MSDs from the OSHA 300 Logs than they are for 
acknowledging the marginal increase in ergonomic risk.\14\ Even the 
most calculating, profit-maximizing employer would recognize that there 
is less potential liability associated with recording non-citable MSDs 
than with an underreporting audit.
D. Conclusion
    Employers are doing a good and conscientious job. This is a modest 
point. I have resisted the more polemical response--that underreporting 
is a myth. We can all agree that there is clearly some underreporting, 
and OSHA must remain vigilant to minimize it in order to maintain the 
integrity of its enforcement and regulation programs. However, the 
Committee should focus its attention on the scope of the problem. The 
title of this hearing declares in no uncertain terms that we are 
dealing with a tragedy of deliberately hidden injuries. Such a 
conclusion ignores the real efforts that employers are making to 
accurately identify all work-related injuries in a complex regulatory 
and medical environment. The question I posed at the outset--whether 
the current recordkeeping system reflects the best understanding of 
employers--should be met with a resounding yes.
    This concludes my remarks and I would ask that my more extended 
testimony be submitted for the record. I look forward to any further 
questions you may have.

                                ENDNOTES

    \1\ Azaroff et al., Occupational Injury and Illness Surveillance: 
Conceptual Filters Explain Underreporting, 92 Am. J. Pub. Health 1421 
(2002).
    \2\ Kerry Hall, Amy Alexander, and Franco Ordonez, The Cruelest 
Cuts: The Human Cost of Bringing Poultry to Your Table, Charlotte 
Observer, at 1A (Feb. 10, 2008).
    \3\ See OSHA Data Initiative Collection Quality Control, Analysis 
of Audits on CY 2003 Employer Injury and Illness Recordkeeping: Final 
Report, (2006).
    \4\ Settlement Agreement: Occupational Injury and Illness Recording 
and Reporting, 66 Fed. Reg. 66,944 (Dec. 27, 2001).
    \5\ In the preamble to the Clinton administration's final 
ergonomics rule, OSHA stated matter-offactly that ``persistent signs or 
symptoms of MSDs will progress and become more severe and disabling if 
they are not treated and the employee remains in the job unabated. * * 
* [T]he pain usually increased if exposure to the ergonomic risk 
factors continues.'' Ergonomics Program, 65 Fed. Reg. 68,262, 68,753 
(Nov. 14, 2000).
    \6\ Siddharthan et al., Under-reporting of Work-related 
Musculoskeletal Disorders in the Veterans Administration, 19 Int'l J. 
Health Care Quality Assurance. 463, 470 (2006).
    \7\ Keith Palmer, et al., How Common is Repetitive Strain Injury?, 
65 Occupational & Envtl. Med. 331 (2008) at 333.
    \8\ Id.
    \9\ Fred Gerr, Surveillance of Work-related Musculoskeletal 
Disorders, 65 J. Occupational & Envtl. Med. 298, 299 (2008).
    \10\ Kenneth D. Rosenman, et al., How Much Work-related Injury and 
Illness is Missed by the Current National Surveillance System, 48 J. 
Occupational & Evtl. Med. 357 (2006).
    \11\ See National Academy of Social Insurance, Workers' 
Compensation: Benefits, Coverage, and Costs 5 (2004); National Council 
on Compensation Insurance, Inc., Workers Compensation Claim Frequency 
Continues to Fall in 2006 (2007).
    \12\ Available at http://www.osha.gov/recordkeeping/new-osha300 
form1-1-04.pdf/.
    \13\ See Azaroff et al., supra note 1.
    \14\ The extent of that risk cannot be reduced to partisan 
politics. In fact, OSHA has never been hesitant to issue such citations 
for faulty recordkeeping. The average penalty for recordkeeping 
violations between 1985 and 1987 was $8,589. Though the Reagan 
administration was never considered especially pro-employee, that 
figure dwarfs the Clinton administration's $1,734 average.
                                 ______
                                 
    Chairman Miller. Thank you.
    Dr. Rosenman?

  TESTIMONY OF KENNETH ROSENMAN, M.D., PROFESSOR OF MEDICINE, 
  CHIEF, DIVISION OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE, 
                   MICHIGAN STATE UNIVERSITY

    Dr. Rosenman. Thank you for the opportunity to talk about 
the system to keep track of occupational injuries and illnesses 
in the United States. My name is Kenneth Rosenman. I am a 
physician and epidemiologist who has studied and written about 
surveillance systems for the last 25 years.
    Recent newspaper articles have once again--and I really 
want to emphasize ``once again''--highlighted shortcomings in 
the nation's efforts to track work-related conditions.
    A basic tenet for preventing and minimizing any disease is 
to have a system that provides accurate information on both the 
frequency and circumstances associated with those conditions. 
Such a system is essential in order to determine how much 
resources to allocate, how to target interventions, to evaluate 
those interventions and, if necessary, to redirect the 
interventions.
    The current U.S. system to count occupational injuries and 
illnesses in the United States does not provide this necessary 
information.
    In 1987, the National Academy of Sciences issued a report, 
``Counting Injuries and Illnesses in the Workplace: Proposals 
for a Better System.'' As a consequence of that report and the 
deficiencies noted in the system, some changes were made.
    The most pronounced change was how acute work-related 
traumatic fatalities were counted--you know, somebody dying 
because of a trench collapse, being electrocuted, falling off a 
scaffold. As a consequence of these changes made in the 
tracking system, the number of work-related deaths doubled in 
the first year of the new system. So they doubled.
    This 100 percent increase in the number of deaths was not 
due to a sudden increase in the hazards of work but, rather, to 
the implementation of a new and accurate system to count these 
deaths.
    No such changes were made in how work-related diseases, 
such as lead poisoning, silicosis or work-related asthma, were 
counted or how non-fatal injuries, such as amputations, burns, 
lacerations or fractures, were counted.
    In the last 20 years, I and others have researched and 
published multiple studies that the current system provides an 
inaccurate count of work-related illnesses and non-fatal 
injuries. There is no disagreement in the medical literature 
that an undercount exists and that this undercount is 
significant.
    Attached to my statement are 15 references from the medical 
literature, and I want to quickly summarize the work of four 
investigators.
    First, Dr. Leigh from the University of California in 
Davis, whose work shows that the current system misses 33 to 69 
percent of all non-fatal work-related injuries. He calculated, 
using the current system, that work-related injuries and 
illnesses cost the United States $170 billion a year, which is 
five times the cost of HIV-AIDS and three times the cost of 
Alzheimer's disease.
    Next, Drs. Boden and Ozanoff from Boston University, who 
have shown in the six states of Minnesota, New Mexico, Oregon, 
Washington, West Virginia and Wisconsin that the current system 
misses up to 50 percent of non-fatal work-related injuries and 
illnesses.
    The next, Drs. Friedman and Frost from the University of 
Illinois in Chicago, who have shown that reductions in the non-
fatal work-related injuries reported over the last decade are 
not due to improvements in the workplace conditions but, 
rather, reductions in OSHA's enforcement of recordkeeping rules 
and changes by OSHA in the definition of work-related injuries.
    They actually showed that 83 percent of the decrease in the 
last decade were due to these record changes by OSHA and not 
due to any reduction in actual injuries and illnesses. So that 
even, one would hope, if the underreporting was consistent, 
that one could at least look at trends, but their data says no.
    My work with colleagues from Michigan State University that 
show the current system misses 66 percent of work-related 
injuries and illnesses in Michigan. And we found that this 
undercount occurred across all different types of industries 
and for both injuries and illnesses.
    And in a separate study, we showed that the current system 
missed one-third of amputations. And a similar study in 
Minnesota also showed those results.
    So, in summary, the current system to count work-related 
injuries and illnesses has been repeatedly studied and shown by 
researchers to have a large undercount. Expert panels that have 
reviewed the current system have reached a similar conclusion.
    The current system for non-fatal injuries and occupational 
illnesses relies solely on employer reporting. And the previous 
speaker spoke to some of the problems with employer reporting.
    And our current system ignores the large number of 
databases that are not dependent on employer coverage or 
compliance with OSHA recordkeeping. These include hospital and 
emergency room databases, Poison Control Center data, state 
laboratory reporting regulations, state occupational disease 
reporting laws, and workers' compensation.
    What is needed is a comprehensive system for work-related 
illnesses and non-fatal injuries that makes use of available 
non-employer-based data systems, analogous to what now exists 
for traumatic work-related fatalities.
    Currently, the annual number of work-related illnesses and 
injuries reported is based on a statistical extrapolation from 
a relatively small sample of employers, about 150,000 to 
200,000 out of our 7 million employers. Statistical 
extrapolation from a much wider range of medical data systems 
is essential if we are to have an accurate tracking system that 
will provide the basic numbers needed for targeting the effort 
to reduce these injuries and illnesses.
    Thank you.
    [The statement of Dr. Rosenman follows:]

Prepared Statement of Kenneth D. Rosenman, M.D., FACPM, FACE, Professor 
    of Medicine, Michigan State University College of Human Medicine

    Thank you for the opportunity to talk about the system to keep 
track of occupational injuries and illness in the United States. My 
name is Kenneth Rosenman, I am a physician and epidemiologist who has 
studied and written about surveillance of occupational injuries and 
illnesses for the last 25 years. Recent newspaper articles have once 
again, and I emphasize once again, highlighted shortcomings in the 
nation's effort to track work-related conditions. A basic tenet for 
preventing and minimizing any disease is to have a system that provides 
accurate information on both the frequency and circumstances associated 
with those conditions. Such a system is essential in order to determine 
how much resources to allocate, to target interventions, to evaluate 
these interventions and if necessary to redirect the interventions.
    The current U.S. system to count occupational injuries and 
illnesses does not provide the information necessary to make the above 
decisions. In 1987 the National Academy of Sciences issued a report 
titled ``Counting Injuries and Illnesses in the Workplace. Proposals 
for a Better System''. As a consequence of that report and the 
deficiencies noted in the system some changes were made. The most 
pronounced change was how acute work-related traumatic fatalities (i.e. 
being buried in a trench, being electrocuted and falling from a roof) 
were tracked. As a consequence of the changes made in the tracking 
system the number of work-related deaths doubled in the first year of 
the new system. This 100% increase in the number of deaths was not due 
to a sudden increase in the hazards of work but rather to the 
implementation of a new and accurate system to count these deaths. No 
such changes were made in how work-related diseases such as lead 
poisoning, silicosis or work-related asthma were counted or how non-
fatal injuries such as amputations, burns, fractures or lacerations 
were counted.
    In the last 20 years, I and others have researched and published 
multiple studies that the current system provides an inaccurate count 
of work-related illness and non-fatal injuries. There is no 
disagreement in the medical literature that an undercount exists and 
that this undercount is significant. I have attached to my statement a 
list of examples of articles from the medical literature that have 
presented the results of research on the undercount. I will quickly 
summarize four of the studies:
    1) Dr. Leigh from the University of California in Davis whose work 
shows that the current system misses 33 to 69% of all non-fatal work 
related injuries. Based on 1992 dollars, he calculated that work-
related injuries and illnesses cost the U.S. 170 billion dollars a year 
which was five times the cost of HIV/AIDS and three times the cost of 
Alzheimer's disease
    2) Drs. Boden and Ozanoff from Boston University who have shown in 
the six states of Minnesota, New Mexico, Oregon, Washington, West 
Virginia and Wisconsin that the current system misses up to 50% of 
work-related injuries.
    3) Drs. Friedman and Frost from the University of Illinois in 
Chicago who have shown that the reductions in non-fatal work-related 
injuries reported over the last decade are not due to improvement in 
workplace conditions but rather reductions in OSHA's enforcement of 
recordkeeping rules and changes by OSHA in the definitions of work-
related injuries.
    4) My work with colleagues from Michigan State University that show 
the current system misses 66% of the work-related injuries and 
illnesses in Michigan. We found that this undercount occurred across 
all different types of industries and for both injuries and illnesses.
    In summary, the current system to count work-related injuries and 
illnesses has been repeatedly studied and shown by researchers to have 
a large undercount. Expert panels that have reviewed the current system 
have reached a similar conclusion. The current system for nonfatal 
injuries and occupational illnesses relies solely on employer reporting 
and ignores the large number of data bases that are not dependent on 
employer coverage or compliance with OSHA record keeping. These data 
bases include hospital and emergency room data bases, poison control 
center data, state laboratory reporting regulations, state occupational 
disease reporting laws, and workers' compensation. What is needed is a 
comprehensive system for work-related illnesses and non-fatal injuries 
that makes use of available non-employer based data systems analogous 
to what exists for acute traumatic work-related fatalities. Currently, 
the annual number of work-related injuries and illnesses reported is 
based on a statistical extrapolation from a relatively small sample of 
employers. Statistical extrapolation from a much wider range of medical 
data systems is essential if we are to have an accurate tracking system 
that will provide the basic numbers needed for targeting the effort 
needed to truly reduce workplace injuries and illnesses.

                               REFERENCES

Azaroff LS, Levenstein C, Wegman DH. Occupational Injury and Illness 
        Surveillance: Conceptual Filters Explain Underreporting. 
        American Journal Public Health 2002; 92:1421-1429.
Boden LI, Ozonoff A. Capture-Recapture Estimates of Nonfatal Workplace 
        Injuries and Illnesses. Annals of Epidemiology 2008; 18: 500--
        506.
Boyle D, Parker D, Larson C, Pessoa-Brand AOL. Nature, Incidence and 
        Cause of Work-Related Amputations in Minnesota. American 
        Journal of Industrial Medicine 2000; 35:542-550.
Islam SS, Edla SR, Mujuru P, Doyle EJ, Ducatman AM. Risk Factors for 
        Physical Assault State-Managed Workers' Compensation 
        Experience. American Journal Preventive Medicine 2003; 25: 31-
        37.
Landrigan PH, Baker DB. The Recognition and Control of Occupational 
        Disease. Journal of the American Medical Association 1991; 266: 
        676-680.
Leigh JP, Markowitz SB, Fahs M, Shin C and Landrigan PJ. Occupational 
        Injury and Illnesses in the United States. Estimates of Costs, 
        Morbidity and Mortality. Archives of Internal Medicine 1997; 
        157: 1557-1568.
Leigh JP, Marcin JP, Miller TR. An Estimate of the US Government's 
        Undercount of Non Fatal Occupational Injuries. Journal of 
        Occupational and Environmental Medicine 2004; 46: 10-18.
Nelson NA, Park RM, Silverstein MA, Mirer FE. Cumulative Trauma 
        Disorders of Hand and Wrist in the Auto Industry. American 
        Journal of Public Health 1992; 82: 1550-1552.
Park RM, Nelson NA, Silverstein MA. Use of Medical Insurance Claims for 
        the Surveillance of Occupational Disease: An Analysis of 
        Cumulative Trauma in the Auto Industry. Journal of Occupational 
        Medicine 1992; 34: 731-737.
Pransky G, Snyder T, Dembe A, Himmelstein J. Under-Reporting of Work-
        Related Disorders in the Workplace: A Case Study and Review of 
        the Literature. Ergonomics 1999; 42: 171-182.
Roscoe RJ, Ball W, Curran JJ et al. Adult Blood Lead Epidemiology and 
        Surveillance--United States, 1998-2001. Morbidity Mortality 
        Weekly Report 2002; 51(SS-11): 1-10.
Rosenman KD, Kalush A, Reilly MJ, Gardiner JC, Reeves M, Luo Z. How 
        Much Work-Related Injury and Illness is Missed by the Current 
        National Surveillance System? Journal of Occupational and 
        Environmental Medicine; 2006 49: 357-365.
Rosenman KD, Reilly MJ, Henneberger PK. Estimating the Total Number of 
        Newly-Recognized Silicosis Cases in the United States. American 
        Journal of Industrial Medicine 2003; 44: 141-147.
Stanbury M, Reilly MJ, Rosenman KD. Work-Related Amputations in 
        Michigan, 1997. American Journal of Industrial Medicine 2003; 
        44: 359-367.
Windau J, Rosenman KD, Anderson H, Hanrahan L, Rudolph L, Stanbury M, 
        Stark A. The Identification of Occupational Lung Disease from 
        Hospital Discharge Data. Journal of Occupational Medicine 1991; 
        33: 1061-1066.
                                 ______
                                 
    Chairman Miller. Thank you very much.
    Mr. Whitmore?

   TESTIMONY OF BOB WHITMORE, FORMER CHIEF, OSHA DIVISION OF 
            RECORDKEEPING, U.S. DEPARTMENT OF LABOR

    Mr. Whitmore. Yes, before I get going, I would just like to 
say how proud I am to see so many members here today. And I 
want to say how much I appreciate your attendance and 
involvement.
    Chairman Miller, Ranking Member McKeon and other dedicated 
committee members, my name is Bob Whitmore. I am a Vietnam 
veteran with an additional 36 years of government service with 
the U.S. Department of Labor.
    I have directed the national OSHA Injury and Illness 
Recordkeeping system since 1988, and am the Department of 
Labor's expert witness for recordkeeping litigation.
    I have been subpoenaed to testify today and am accompanied 
by my counsel, Mr. Robert Seldon of Robert C. Seldon and 
Associates.
    On July 17th of last year, my OSHA director, Keith Goddard, 
placed me on paid administrative leave in a non-duty status 11 
months ago. Therefore, at the outset, I want to make it very 
clear that I am here today representing myself as a concerned 
citizen, one with over 20 years of experience directly related 
to the subject of today's hearing. I am not here representing 
OSHA or the Department of Labor.
    I contend that the current OSHA injury and illness 
information is inaccurate, due in part to wide scale 
underreporting by employers and OSHA's willingness to accept 
these falsified numbers.
    There are many reasons why OSHA would accept these numbers, 
but one important institutional factor has dramatically 
affected the agency since 1992, regardless of the political 
party: Steady annual declines in the number of workplace 
injuries and illnesses make it appear that OSHA is fulfilling 
its mission.
    In 1992, Congress passed GPRA. That holds OSHA accountable. 
And we are going to be judged by where these numbers go, thanks 
to GPRA.
    All of us want to see a reduction in the number of 
workplace injuries and illnesses. However, this reduction must 
be the result of fewer injuries and illnesses actually 
occurring, and not the result of falsified reporting. It is 
impossible to evaluate the effectiveness of any OSHA program if 
the data aren't accurate. Inaccurate data also make it harder 
to know how to protect American workers from real hazards.
    To understand how we got to this point, it is critically 
important to look into history at the OSHA recordkeeping 
system. That history can be broken into three segments.
    What I refer to as the ``Taxi Fare Era'' began with the 
start of the recordkeeping system in 1972 and continued through 
mid-1986. While citations for recordkeeping topped the list of 
the most cited OSHA standard or regulation during this period, 
the fines in these cases were usually $100. Many of us refer to 
those fines as corporate taxi fare.
    From April 1986 to 1992, we entered what I term the 
``Egregious Era.'' In April of 1986, under the Reagan 
administration, OSHA issued its first-ever million-dollar fine 
to Union Carbide in West Virginia for inaccurate recordkeeping.
    During this period, I reviewed over 40 cases in which we 
applied the newly developed instance-by-instance penalty 
policy, allowing us to cite and fine the company for each 
violation of recordkeeping rules.
    I now want to make the second most important point in my 
testimony. After we began vigorously enforcing OSHA's 
recordkeeping rules in the Reagan administration, injury and 
illnesses went up from 1985 through 1992. I believe Dr. Ruser 
wrote an article in 1988 and 1991, with Robert Smith, that 
addressed that very fact.
    Okay, why? Employers may have many incentives not to record 
injuries and illnesses accurately. For example, many plant and 
corporate managers, physicians and supervisors receive bonuses 
based on their OSHA recordable rates.
    So when you enforce the recordkeeping rules, employers who 
will be more careful to record all injuries and illnesses in 
rates will go up. The reported national injury and illness 
rates rose during this period, and the leading occupational 
illness collected in the system went from contact dermatitis to 
cumulative trauma disorders.
    Does this mean workplaces are becoming more unsafe? No. It 
just means that we have had a more accurate picture of what was 
going on, because the employers were actually reporting 
injuries and illnesses. If injury and illness rates go up when 
you enforce recordkeeping rules, if you don't enforce the 
rules, will reported rates go down? The answer is yes.
    And this is the most important point of my oral testimony. 
Not enforcing OSHA recordkeeping rules mean many employers will 
not record injuries and illnesses affecting their workers. Do 
falling reported rates mean workplaces are actually safer and 
healthier? No. Estimates about how many injuries and illnesses 
go unreported range from 30 to 60 percent.
    I believe the final period, from 1992 to the present, 
demonstrate that when you don't enforce recordkeeping, reported 
injury and illness rates will fall. I call this period the 
``Report Card Era.''
    Around 1992, Congress passed GPRA in an attempt to make 
agencies quantify their performance with objective findings. 
For the very first time, GPRA made OSHA directly accountable 
for the rise and fall of the injury and illness numbers.
    Chairman Miller. Mr. Whitmore, I am going to ask if you can 
wrap it up, please. Thank you.
    Mr. Whitmore. Yes, sir.
    It doesn't take an expert to question these data when one 
looks at just a few examples. A steel plant in Kentucky 
reported no cases on their log for 2005--no cases, a steel 
plant. Two other steel plants in Ohio and one in Pennsylvania 
had recordable case rates below one, total case rates below 
one. Another steel plant in North Carolina and two poultry 
plants in Iowa reported days-away rates of zero. And a large 
poultry processor in North Carolina had a DART rate of 1.1.
    In conclusion----
    [The statement of Mr. Whitmore follows:]

  Prepared Statement of Bob Whitmore, Former Chief, OSHA Division of 
                Recordkeeping, U.S. Department of Labor

    Chairman Miller, Ranking Member McKeon and other dedicated 
Committee members. My name is Bob Whitmore. I am a Vietnam veteran with 
an additional 36 years of government service at the US Department of 
Labor. I have directed the national OSHA Injury and Illness 
Recordkeeping system since 1988, and am the Department of Labor's 
expert witness for recordkeeping litigation. I have been subpoenaed to 
testify today and am accompanied by my counsel, Mr. Robert C. Seldon, 
of Robert C. Seldon and Associates. Mr. Seldon is well known for 
representing employees who speak out about abuses in the public and 
corporate sectors, and whom I believe has prevented OSHA from firing 
me. On July 17th of last year my OSHA Director, Keith Goddard, placed 
me on paid administrative leave in a non-duty status.
    Therefore, at the outset I want to make it very clear that I am 
here today representing myself as a concerned citizen; a concerned 
citizen with over 20 years of work experience directly related to the 
subject of today's Committee hearing. I am not here representing OSHA 
or the Department of Labor.
    I have been an outspoken critic regarding the inaccuracy of OSHA's 
Injury and Illness Recordkeeping since 1985. Several years ago, I 
assisted the Oakland Tribune in its 2005 coverage of the fraudulent 
records kept by the joint venture KFM during the construction of the 
San Francisco-Oakland Bay Bridge East Span, and the subsequent 
California State Auditor investigation. More recently, I was involved 
with the Charlotte Observer's six-day series, ``The Cruelest Cuts,'' 
which was published this past February. The graphic and disturbing 
pictures I have in front of me come from that coverage. That private 
investigation uncovered horrendous working conditions and fraudulent 
records at one of the nation's largest poultry producers, the House of 
Raeford Farms, with plants in both North and South Carolina.
    I contend that the current OSHA Injury and Illness information is 
inaccurate, due in part to wide scale underreporting by employers and 
OSHA's willingness to accept these falsified numbers. There are many 
reasons why OSHA would accept these numbers, but one important 
institutional factor has dramatically affected the Agency since 1992, 
regardless of the political party in power: steady annual declines in 
the number of workplace injuries and illnesses makes it appear that 
OSHA is fulfilling its mission.
    All of us want to see a reduction in the numbers of workplace 
injuries and illnesses. However, this reduction must be the result of 
fewer injuries and illnesses actually occurring, and not the result of 
falsified reporting. Obviously, it is impossible to evaluate the 
effectiveness of any OSHA program in the results aren't accurate.
    To understand how we got to this point in time it is important to 
look at the history of the OSHA Recordkeeping system. That history can 
be broken into 3 segments.
    What I refer to as the ``TAXI FARE ERA'' began with the start of 
recordkeeping in 1972 and continued through mid 1986. While citations 
for recordkeeping topped the list of the most cited OSHA standard or 
regulation during this period, the fines in these cases was usually 
$100. (Note: $100 in 1972 = $518 in 2008) Many of us referred to these 
fines as ``Corporate Taxi Fare.''
    From April 1986 to 1992 we entered what I term the ``Egregious 
Era.'' In April of 1986, under the Regan administration, OSHA issued 
its first ever million-dollar fine to Union Carbide in West Virginia. 
The $1.3 million dollar fine was for inaccurate recordkeeping. During 
this period I reviewed over 40 cases in which we applied the newly 
developed ``instance-by-instance'' penalty policy called the Egregious 
Penalty. One only has to look at the injury/illness rates from 1985 
through 1992 in order to see the impact of this era. In fact I believe 
that in 1988 and 1991 Dr. Ruser and Robert Smith wrote about this 
impact. The national injury and illness rates rose during this period 
and the leading occupational illness collected in the system went from 
contact dermatitis to repeated trauma disorders.
    I call the period from 1992 up to the present the ``Report Card 
Era.'' Around 1992 Congress passed the Government Performance Results 
Act (GPRA), in an attempt to make Agencies quantify their performance 
with objective findings. For the very first time, GPRA made OSHA 
directly accountable for the rise and fall of the injury and illness 
numbers. This information became the ``Report Card'' of success or 
failure for OSHA. Obviously, the Congress was looking for real numbers. 
Regrettably, the new OSHA of the nineties and beyond responded to the 
complaints from large employers and their representatives that the 
Agency was too zealous with ``paperwork enforcement''. OSHA ceased 
virtually any meaningful recordkeeping enforcement actions after 1991. 
Unfortunately, rather than aggressively pursuing programs to try and 
insure accurate numbers, OSHA's leadership turned its backs on such 
pursuits. Sadly, OSHA's primary mission--trying to insure worker 
safety--was lost in their attempt to obtain and publicize a better 
report card. Until recently Congress didn't seem to care either.
    Like everything in life there seems to be good news and bad news. 
The good news was that in 1995 OSHA began collecting the injury and 
illness records directly form approximately 85,000 establishments 
nationwide, called the annual OSHA Data Initiative or ODI. For the 
first time ever, this program gave OSHA the injury and illness data for 
specific establishments, rather than overall industry information. OSHA 
could finally focus its attention on the employers having the highest 
injury rates and so it then created the Site Specific Targeting System 
(SST). Unfortunately except for one year since 1995 OSHA has decided 
not to collect information from employers in the Construction industry, 
one of our deadliest sectors.
    The bad news was that employers were reporting these rates to OSHA 
and history had already warned us of such perils. In the early 1980's 
OSHA instituted a ``Records Check'' policy, in which Compliance 
Officers calculated the ``lost-time'' rate from the OSHA Log and 
immediately vacated the premises if the employer's rate was below the 
national average rate (around 4.5 at that time). During the ``Egregious 
Era'' everyone came to realize the ridiculous nature of the Records 
Check Policy and it was eliminated.
    The SST recently announced for 2008 will include establishments 
with DART rates, formerly called lost-workday rates, of 11.0 (3,800 
establishments) and above on the primary targeting lists and 7.0 and 
above on the secondary targeting lists. Please realize that these lists 
are for potential inspections, and other inspections, including 
fatality, complaint, National and Local emphasis programs often 
preclude an Area Office from completing even a sample of the SST 
primary targeting list. Bottom line, if you report a DART rate below 
7.0 you aren't even on OSHAs radar for the potential of a planned 
inspection. Employers have always had incentives not to report all 
injuries and illnesses: many plant and corporate managers, physicians, 
and supervisors receive bonuses based on their OSHA recordable rates. 
While well intentioned originally, the SST as it is currently 
administered provides them with another one.
    It doesn't take an expert to question this data when one looks at 
just a few examples from 2005:
    1) A steel plant in Kentucky reported no, or 0%, cases on their 
log.
    2) Two other steel plants in Ohio and one in Pennsylvania had total 
recordable case rates, TCR, below 1.
    3) Another steel plant in North Carolina and two poultry plants in 
Iowa reported ``Days Away/Restricted/Transferred'' (DART) rates of 0, 
and a large poultry processor in North Carolina reported a DART rate of 
1.2.
    To try and put these numbers in context, the 2005 data for all 
private sector establishments classified as General Merchandise Stores 
(code 452) under retail trade reported the following:

            Total Case Rate--6.7
            DART rate--3.9

    So what can this Committee do to ensure that the OSHA numbers are 
real?
    1) Direct OSHA to put its entire employer reported data since 1995 
on its website so that no one would be forced, as has been the 
practice, to submit a FOIA request for this releasable information. 
This would include the data from the OSHA ODI and OMB Records Audit 
programs.
    2) Direct OSHA to reinstitute firm, fair & consistent enforcement 
of the recordkeeping regulations by establishing an ongoing National 
Emphasis Program that will begin to address the problem of intentional 
underreporting of workplace injuries and illnesses.
    3) Direct OSHA to create an independent Recordkeeping Inspection 
Support Office that would contain a national Office ``SWAT Team'' for 
potentially egregious cases so that the Field Compliance staff would be 
able to proceed with their other inspections.
    4) Direct OSHA to establish an SST program that does not ignore 
employers who send in highly questionable, if not fraudulent, 
information.
    5) Finally, but probably the single most effective way to quickly 
improve the data, direct OSHA to issue a requirement that would make 
Corporate Safety Directors certify that they have made meaningful and 
effective efforts to insure the accuracy of the OSHA records throughout 
their corporation. With Sarbanes/Oxley in effect, large employers will 
most likely vigorously oppose this idea.
    In conclusion, I'd like to share with you the response of Ms. 
Cherie Berry, Labor Commissioner for North Carolina OSHA, to a question 
posed by the Charlotte Observer, which was printed in its ``Cruelest 
Cuts'' series I mentioned earlier:
    Q. ``Will your department take any additional steps to ensure that 
company injury logs reflect reality?''
    ``Well, I find it offensive that it seems to me you're suggesting 
that not keeping the proper paperwork is commonplace in our business 
community. I just don't find that. * * * We're going to keep doing what 
we're doing because it's working.''
    While Ms Berry might be offended, I personally find her response, 
as well as similar reactions throughout OSHA's leadership, outrageous. 
Today, and every day this year an average 16 pieces of ``paperwork'' 
will be completed for working men and women in America, their death 
certificates. It's time for the leadership of my Agency to show 
Chairman Miller's ``sense of urgency'' regarding the safety and health 
of America's workers. Unfortunately, tomorrow will be too little and 
too late for an additional 16 grieving American families.
    I personally want to apologize to those 16 families, as well as to 
the family of Bobby Glover, pictured here after his death at the House 
of Raeford Farms.
    Thank you for giving me the opportunity to appear before this 
Committee. I look forward to your questions.
                                 ______
                                 
    Chairman Miller. Mr. Whitmore, I am going to ask you to 
stop there. We have a vote on the floor, and I want to see if 
we can get to at least partial questions at this time. So your 
written statement----
    Mr. Whitmore. Can I----
    Chairman Miller. [continuing]. Is in the record in its 
entirety. I am sorry. I am just going to have to do this----
    Mr. Whitmore. Yes, sir.
    Chairman Miller. [continuing]. Because we are going to 
start to lose members.
    Dr. Ruser, let me ask you a question. In your statement, 
you indicate that you are engaging in conversations about BLS 
looking at federal and local workers. Is that correct?
    Mr. Ruser. Yes, sir, that is correct. We have already 
expanded the survey to include state and local government 
workers in all states.
    Chairman Miller. Any discussion of expanding that to part-
time employees, which are a rapidly growing sector of the 
economy in all employment areas? You know, it is not just to 
retail now; it is all across the economy.
    Mr. Ruser. Any worker who has an employment relationship 
with an employer is covered by our survey. So we already 
capture many part-time workers, sir. I think maybe you are 
referring to the self-employed. And, at this point in time, we 
have no----
    Chairman Miller. No, I am raising the question of whether 
or not, in fact, part-time employees are accurately counted 
within----
    Mr. Ruser. Yes, we count part-time employees.
    Chairman Miller [continuing]. You survey.
    Mr. Ruser. Yes, we do.
    Chairman Miller. Does OSHA?
    Mr. Ruser. It is part of OSHA recordkeeping that any 
employee of a firm that is covered by the OSHA log system will 
be captured. The data for those injuries and illnesses to those 
workers will be captured.
    Chairman Miller. You also indicate in your statement, 
toward the end, that BLS has undertaken a pilot program of 
employer interviews. Any reason why you are not interviewing 
employees?
    Mr. Ruser. Our focus is on employers because those are the 
entities that provide us with our data. And we have a list of 
employers to which we can go to. The Bureau of Labor Statistics 
uses a sample frame, which consists of establishments----
    Chairman Miller. Well, let me go back to, in the testimony 
this morning and in a number of studies referred to here, there 
is this suggestion that there is a mismatch between the 
interest of the employee and the employer. Why would you not 
conduct discussions with the employees about the reporting 
system?
    Mr. Ruser. I think that would have to be done by another 
agency that has access to a roll of employees, as opposed to 
employers. Our data frame that we work from is of employers and 
not the employees.
    Chairman Miller. It is about the employer's workplace. It 
is about the workplace that the employer runs. A major 
component of that workplace would be employees.
    Mr. Ruser. Yes, sir. And I think that perhaps another 
agency, such as the National Institute for Occupational Safety 
and Health, could explore, as----
    Chairman Miller. Are you arguing that you don't have 
authority to talk to them?
    Mr. Ruser. We have a list of establishments that we go to, 
sir. And so we----
    Chairman Miller. Yes, and inside of those establishments 
are employees----
    Mr. Ruser. Yes, of course there are employees.
    Chairman Miller [continuing]. Which is the subject of this 
hearing.
    Mr. Ruser. But we don't have that list. We feel that our 
authority is to go and talk to----
    Chairman Miller. Hello? You just--you are like--I mean, you 
go in to talk to the employer. You can't ask to talk to 
employees in that same establishment?
    Mr. Ruser. At this time, sir, we are focusing on talking 
with employers about their----
    Chairman Miller. So you have chosen not to talk to 
employees?
    Mr. Ruser. For this study, we have chosen not to talk 
with----
    Chairman Miller. So this study will only be about 
employers?
    Mr. Ruser. It will be about----
    Chairman Miller. And we will have half the picture when 
this study is all done.
    Mr. Ruser. We are hoping to understand the decisions that 
employers make about what they record on OSHA logs and how they 
file workers' compensation claims. And this impacts, of course, 
the kind of information that we receive.
    Chairman Miller. Dr. McLellan, can we get there without 
talking to employees on an official capacity as to what is 
taking place in the workplace?
    Dr. McLellan. I can't speak to the regulatory authority of 
the BLS, but I would certainly concur that talking to the 
employees is important.
    Chairman Miller. Dr. Rosenman, Mr. Fellner suggests that 
this is just a mismatch of data. We have got people looking at 
different databases, and I think even Dr. Ruser suggested that 
we have different databases here. Is that accurate?
    Dr. Rosenman. Well, I think the bottom line is we want to 
know how many occupational injuries and illnesses occur. And 
so, you know, do you dismiss worker comp data because you say 
it has different definitions? To me, those are injuries and 
illnesses, and they need to be considered. And, clearly, all 
the medical databases--the hospital discharge data, the 
emergency room data--is being ignored.
    And so, I would say, no, it is not a mismatch. It is just 
there is a lot more out there, and we need to be counting that.
    Chairman Miller. Mr. Fellner, do you discount that 
information?
    Mr. Fellner. Of course not. I don't discount it at all. 
It----
    Chairman Miller. What does it tell you?
    Mr. Fellner. If this country wants to go in the direction 
of discarding the recordkeeping regulation that is promulgated 
pursuant to----
    Chairman Miller. It is not a question of discarding it. It 
is a question of what does the additional evidence outside of 
that system suggest to you.
    Mr. Fellner. It suggests that there are three times more 
apples than there are oranges. OSHA counts oranges----
    Chairman Miller. Or a third more amputations than there 
were.
    Mr. Fellner [continuing]. Dr. Rosenman counts apples. If 
this country wants----
    Chairman Miller. No, he was counting fingers, I think, or 
amputations.
    Mr. Fellner. No, not at all.
    Chairman Miller. Wasn't that in your testimony----
    Dr. Rosenman. I would strongly disagree. We are all 
counting the same fruit. We are talking about work-related 
injuries and illnesses.
    The number of fatalities doubled. Now, are you going to say 
those weren't work-related fatalities? I mean, there is no 
question. We are not talking about pain. We are not talking 
about musculoskeletal disease. We are talking about dead 
people, that there is no question they died from their work. 
And when you went beyond the employer-based survey, you doubled 
the number of workplace fatalities.
    And that is what I am suggesting. We need a system that 
counts all the other injuries, non-fatal, and illnesses that we 
are missing.
    Chairman Miller. And what was the situation with respect to 
amputations, in your testimony?
    Dr. Rosenman. So I am aware, as I sit here today, of two 
studies on amputations, one in Michigan, where we estimate that 
the current system misses a third of amputations. And there is 
a study from the University of Minnesota that has similar data, 
that, again, in Minnesota, a third of amputations were being 
missed by the current system.
    Chairman Miller. Mr. Whitmore, just quickly because we are 
running out of time. We have a vote. I am sorry, you can't see 
behind me. But we have a vote, and we have got 2 minutes left 
to get to the floor.
    You cited at the very end of your testimony a series of 
facilities that had very, very low rates. You are telling us 
that that is just not plausible, that that couldn't happen in 
that kind of a facility, a steel mill could have no----
    Dr. Rosenman. To say I was highly skeptical would be an 
understatement.
    And you have to understand, Chairman Miller, that when they 
are talking about workers' comp and OSHA recordkeeping, most 
compensable cases are OSHA recordable. The reverse is not true. 
Most of the OSHA recordables are not compensable. But most of 
your compensables are recordable under the OSHA recordkeeping 
criteria. That is something we have known for years.
    Chairman Miller. We are going to have to come back for the 
questioning. Hopefully we will return in about 20 minutes. So 
the committee will stand in recess at this point.
    [Recess.]
    Mr. Hare [presiding]. The hearing will now reconvene.
    I would now like to recognize the ranking member, my friend 
and colleague, Congressman McKeon, for 5 minutes.
    Mr. McKeon. Thank you very much.
    Mr. Fellner, your testimony suggests that comparing 
workers' compensation claims to OSHA recordable injuries is an 
inappropriate comparison. I think we were discussing that, 
talked a little bit about that, and I think you didn't get a 
chance to fully explain that. Can you elaborate on that?
    Mr. Fellner. Thank you, Congressman McKeon. I would be 
delighted to do so.
    The cliche I used before was it is like counting apples and 
oranges. Let me be a little bit more specific in that regard.
    Any attempt to compare a single OSHA recordkeeping 
regulation, no matter how complex, with worker compensation 
regimes begins with the following problem: There is no single 
workers' compensation regime; there are 50 of them. And each 
one is distinct unto itself, insofar as to how it categorizes 
and compensates for various injuries and illnesses.
    Two, with respect to the universe of employees that are 
subject to OSHA jurisdiction and recordkeeping, once again it 
is apples and oranges. Workers' compensation, by and large, 
includes self-employed individuals. It includes federal, state 
and local individuals. It includes a variety of other 
individuals that are not subject to OSHA jurisdiction. The 10-
employee-or-less exception to OSHA jurisdiction immediately 
comes to mind.
    So the universe that is looked at, when you look at 
workers' compensation injuries and illnesses, is a much 
broader, a much more expanded universe than is involved in OSHA 
recordkeeping.
    Number three, the definition of what constitutes an injury 
on the one hand and, number two, whether it is workplace-
related on the other hand could not be more different in the 
workers' compensation--in the 50 workers' compensation contexts 
than exists in OSHA.
    OSHA has its own definitional framework. The 50 regimes 
have their definitional frameworks. To suggest that one can 
simply look at a workers' compensation list of injuries and 
illnesses and transpose them to OSHA recordkeeping and say, 
``Therefore, there is something deliberately going on,'' as is 
suggested by the title of this hearing, something deliberately 
going on to cook the OSHA books, is a misconception that I 
would like to dispel.
    Mr. McKeon. Thank you very much.
    You know, I listened carefully to all of your testimony. 
And I think you all have very sincere--you are all coming at 
this from different directions, but very sincerely. But it 
looked to me like the story, again, of the elephant, with the 
three blind men trying to describe it. One person touches the 
side of the elephant and says an elephant is a wall. Somebody 
grabs the leg and says it is like a large tree trunk. And 
somebody grabs the tail and says it is a rope. I mean, you have 
all heard the story. And that is what I gather here.
    Mr. Whitmore, your testimony says this happened under 
Democrat and Republican regimes, the problems that you have 
with this. It is not a partisan thing, although, you know, 
probably the fact that we are doing it now with a Democratic 
Congress and a Republican administration kind of, you know, 
tends to think, well, it is all a Republican problem that we 
are going to expose.
    I am glad we are having the hearing, because I come from a 
small-business background, and I am starting to think, you 
know, did we report all of our injuries? Did we know of all of 
our injuries? We didn't have some of--ours was retail business, 
so we didn't have some of the problems that Mr. Span talked 
about, you know, where you have warehousing. We didn't have 
that kind of a situation with big equipment and that kind of 
stuff.
    But I can see problems; I don't know exact answers. And I 
think we are going to come up with a lot more questions today 
than answers. But I, again, appreciate you all being here. And 
I know, as we get all of your full testimonies in the record 
and go through the questions we have here today, it probably 
would lead to we should have more hearings to find out more of 
what is going on.
    And my time has expired, Mr. Chairman. I yield back.
    Mr. Hare. I thank the gentleman.
    The chair now recognizes the gentleman from Maryland, Mr. 
Sarbanes, for 5 minutes.
    Mr. Sarbanes. Thank you, Mr. Chairman. I am glad we are 
having this hearing today.
    About 15 years ago, I worked on a report with an 
organization called the Public Justice Center in Maryland, and 
we entitled it--it was a look at the poultry industry in 
particular, and the name of the report was, ``The Disposable 
Workforce,'' because what we found was a lot of evidence of 
some of the issues that have been described in the Charlotte 
Observer series.
    But, in particular, what was happening was, if you got 
hurt, you were gone. And that is why the workforce was 
disposable. They didn't have access to care if they got hurt. 
And the employers, in those instances, were taking advantage of 
the demand for the work to basically sideline people if they 
suffered an injury.
    So I am very keen on the discussion that we are having 
today. But I am very focused, as well, on what we can do about 
it, in terms of raising the vigilance within OSHA.
    And one of the questions I had is, a few of you have 
alluded to the fact that there are, sort of, bonuses and 
incentives out there that reward--I mean, you know, in addition 
to, sort of, the general reputation of a company for having a 
low injury report, that inside the company there are incentives 
and bonuses for medical people and others, human resources, 
whatever it is, if that count is low.
    And I wondered if anyone would speak to--maybe we can start 
with Dr. Rosenman--speak to the question of whether that is 
just a practice that ought to be banned or prohibited or curbed 
in some way and what the potential to do that is.
    Dr. Rosenman. I think there certainly are practices out 
there as you describe that discourage workers from coming 
forward. And some are incentives, and some are, sort of, almost 
punishment if they do.
    The point I was trying to make is we need to go beyond an 
employer-based system, which would in some way minimize 
whatever incentives or disincentives. And we have all these 
additional databases out there, and I think it is very 
important--the point I try to make, in terms of acute traumatic 
work-related fatalities, where the system has gone beyond 
employer-based.
    And I think that is very important. I mean, one could, by 
law, not allow, maybe, some of these incentives. But I don't 
think that is really the total answer. I think it is going 
beyond an employer-based system.
    Mr. Sarbanes. Do you think there is enough information out 
there in data that we could eliminate the undercount problem? I 
mean, is that possible to do?
    Dr. Rosenman. Well, we have to remember that the whole 
system for non-fatal injuries and illnesses is based on a 
statistical sampling and an extrapolation. And I think, yes, we 
are smart enough to use other data systems to do the 
extrapolation, do a better extrapolation, do a better 
statistical sampling.
    So the answer is, yes, I think going beyond employer-based, 
not eliminating the employer reporting, but using all these 
other data systems, we could do a much better job at 
extrapolating the true numbers of injuries and illnesses in the 
United States.
    Mr. Sarbanes. Thank you.
    Did you want to respond?
    Dr. McLellan. I would just like to point out that CSTE, 
which stands for the Council for State and Territorial 
Epidemiologists, have actually been looking at this issue for 
some period of time and have, in a number of states now, an 
ongoing project which uses a suite of 19 different occupational 
health indicators, really for the purpose of trying to take a 
better look at the whole elephant, recognizing that each one of 
these databases looks at only the arm or the trunk or whatever, 
to use your analogy, sir.
    And so I think that there certainly are a number of 
databases that could be linked that could improve the 
situation. However, I will also say that there are no databases 
yet that really help us very much with the chronic occupational 
disease issues----
    Mr. Sarbanes. Right.
    Dr. McLellan [continuing]. And the exposure issues that 
cause latent diseases. And that needs further thought, deep 
thought, about how to address that issue.
    Mr. Sarbanes. Great.
    Mr. Whitmore, first of all, I want to thank you for your 
testimony today. It is not easy to do what you have done. I 
want to acknowledge that you reside in my district, and I am 
very proud of that.
    You had mentioned at the end of your testimony--and 
Chairman Miller cited this as well--statistics on, you know, a 
steel plant that has zero reported injuries and so forth.
    What is the system--and I guess we heard a little bit about 
it--but what is the system inside OSHA where that would pop up 
on a radar screen and trigger an investigation or somebody to 
go out and check the situation? In other words, how do we 
allocate the resources of OSHA across the different workplaces 
that we look at?
    Mr. Whitmore. Thank you, Mr. Sarbanes. I appreciate your 
comments.
    The bottom line is this. OSHA inspects when there is a 
fatality, when there is a complaint, or if there is a planned 
inspection, a targeted inspection. I think the one recently 
announced for this coming year has around, like, 4,000 
establishments with high lost-time rates.
    No one is looking below five. No one is looking at that. I 
looked at it and said, you know, guys, we can't go on like 
this. There aren't ma-and-pa steel mills out there. These are 
large establishments, large employers. We need to go after 
them.
    Mr. Fellner talks about the SST. I welcome the opportunity, 
hopefully at some point today, to talk a little bit about his 
numbers. Because in one instance, he said in 2005, I believe it 
was, there was 100 audits done--100. We had put in for 400 in 
the primary list, okay? They only did 100. Is that going to 
tell you everything you need to know about low employer 
reporting? I don't think so.
    I am not the Ph.D. statistician, never wanted to be, never 
will be. I know that these low rates are bogus. I have looked 
at them over my career, and they basically shut me down in 
1992.
    Mr. Sarbanes. Thank you.
    Mr. Hare. The gentleman's time has expired.
    The chair recognizes the gentleman from Massachusetts, Mr. 
Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. I have, really, only 
one question, and that is to Mr. Whitmore, if I could.
    OSHA and Mr. Fellner indicate that the audits are being 
conducted that ensure accuracy of employer reports. You seem to 
feel otherwise. Would you tell us why those audits, in your 
estimate, are not adequate?
    Mr. Whitmore. Well, we have to be a little careful here, 
because the word ``audit'' is thrown around a lot. And I know 
it is hard for you guys; it is hard for me, and I have to deal 
with this stuff on a fairly regular basis.
    There is a separate program that does records audits 
checks, okay? Just to give you an idea, in 2006, the last one I 
believe that was done, there were 24 employers in that sample 
that had more than 250 employees. I don't think we can say a 
whole heck of a lot for all employers above 250 employees based 
on a sample of 24.
    And the audits are done--the critical thing you have to 
understand, that when our auditors in this audit program go in, 
they say, I want to see certain folders on certain people, like 
Representative Hare, I want to see your medical records. Who do 
you think gets them for them? The employer. Who do you think 
hands him the folder? The employer.
    You are totally dependent because they don't follow up with 
a medical access order to go to the hospitals, the clinics that 
are used, to check. That is where we get our big cases. Not 
every employer is dumb enough to have the goods right there and 
hand them over to you. But there are cases where that happens.
    And don't get me wrong. There are a lot of really good big 
employers around. You know, everybody says, ``I think 90 
percent are doing the right thing.'' And my response has been 
throughout my career, ``Give me the 10.'' You take care of the 
90 that are doing a great job. Give me the 10 that don't care 
about their employees and don't care about what OSHA does or 
stands for.
    Mr. Tierney. Thank you.
    I yield back, Mr. Chairman.
    Mr. Hare. The chair recognizes the gentleman from Michigan, 
Mr. Kildee.
    Mr. Kildee. I first apologize. I had another hearing this 
morning on Resources Committee, but I read your testimony, 
appreciate your testimony.
    I can just recall things years ago--I am 78 years old. I 
can recall when my dad worked in the plant and how things were 
then. We have come a long way since then. But there is human 
nature. There is a good side to human nature, and there is the 
bad side of human nature. And, at times, we have to make sure 
the law protects people from the bad side of human nature.
    And I can recall my dad almost being killed in the plant by 
being pulled into his machine. He had no capacity to turn his 
own machine off. That was a long time ago. That was in the 
1930s.
    But human nature remains the same. And law protects people 
against the shortcomings of employers. And if it is the 10 
percent, that is the 10 percent we want to make sure the law 
watches and protects their employees from.
    And I very much appreciate the testimony this morning.
    And thank you, Mr. Chairman.
    Mr. Hare. Thank you very much.
    Mr. Span, I apologize. I came in late this morning, and I 
missed your testimony. I wonder if you could talk a little bit 
about your injury and the effects and any repercussions you had 
from reporting the injury and, you know, the effect of these 
incentive games that they are playing, in terms of being able 
to----
    Mr. Span. Well, thank you.
    And I would like to say that I was hurt doing my job at the 
Bashas' warehouse with my supervisor standing next to me. We 
were unloading a tractor trailer, and I got some debris in my 
eyes, which they did not have any safety glasses or anything 
like that, wasn't given to me. And I went home, and the next 
day I had an infection, so I went to the emergency room. After 
calling my doctor about me being a diabetic, I have to be real 
careful.
    And I contacted my supervisor at the warehouse and 
explained to him what happened, the plant manager, explained to 
him what happened and the situation I was in. And the doctor 
gave me some days off work because of the infection I had in my 
eye. And he then immediately told me to bring in the 
documentation and he will take care of it.
    So after returning back to work with my doctor's 
documentation stating that he kept me off from work for a few 
days and the reason why, he did take the papers and he also 
punished me by giving me points, stating that I shouldn't have 
called in from work, you know, to report that I would be off.
    And I did question him and asked him what was the reason 
why would I be punished by given points when I got hurt on your 
job? And he tried to deny that it ever happened. But my 
supervisor explained to him that he was standing there when the 
incident did occur.
    And, from that point, I don't know what happened, but I 
checked the OSHA 200 log, and it is not even mentioned in 
there. But I do have the documentation from my doctor that it 
occurred, you know?
    And this goes on to say that the company that I was 
employed with, I don't know what is going on with the 
documentation as far as getting them on the OSHA log, but I was 
just listening to the guy here to my left stating that the 
facts and figures for the OSHA papers are right, and I am just, 
you know, from my--I am a worker. I know from experience, not 
from what I am told and what I am reading, you know.
    They are like witnesses that millions of accidents and 
stuff that is happening in the workplace, and people are afraid 
to report them because they don't want their wages cut or being 
punished by their employer.
    Mr. Hare. During your testimony, which I missed, you said 
that--and I want to make sure that I heard you right--that you 
received 10 minutes of training to drive a forklift?
    Mr. Span. Yes, I received----
    Mr. Hare. What would you say is the average time for a 
person to become reasonable proficient and have it safe to 
drive a forklift?
    Mr. Span. Well, basically, it can take people up to 6 to 7 
months to be properly trained to operate----
    Mr. Hare. And you get 10 minutes.
    Mr. Span. Pardon?
    Mr. Hare. And you get 10 minutes?
    Mr. Span. Yes. At Bashas' Corporation, I was only given 10 
minutes to drive a pallet jack. Now, I need to remind you that 
the equipment that I had to use to perform my job, I would have 
to be on heavy equipment all through the 8-hour shift, as well 
as the people who was being hired who don't even have a driving 
license, to operate these equipment.
    That is why if you look at the OSHA report, that the 
Bashas' Corporation, the warehouse itself, it explains more 
that they have got the average of injury rates anywhere in the 
United States. And these are the ones that is being recorded. 
Think about the ones that is not being recorded.
    Mr. Hare. Well, let me ask you, if I could, Mr. Fellner, 
something that is troubling to me. Dr. Rosenman, as I 
understand it, did a study in 2003 that showed that there were 
693 amputations in the state of Michigan, whereas the BLS 
survey estimated only 440 amputations occurred.
    Now, you can argue that the ergonomic issues are hard for 
employees to diagnose and that their recordkeeping regulations 
are complicated, but it would seem to me that amputations 
aren't too hard for employers to be able to diagnose. And, yet, 
the BLS only estimated 64 percent of the true number of 
amputations in Michigan in 1997.
    So how can you say there is no evidence of significant 
underreporting when you see numbers like this?
    Mr. Fellner. I have not had a chance to review Dr. 
Rosenman's study, but to the extent that that study relies in 
whole or in part on workers' compensation data, to the extent 
that it does, then my prior response to Congressman McKeon 
would apply. And that is, the extent to which that 680 includes 
individuals not subject to OSHA's jurisdiction, then we are 
indeed talking about apples and oranges.
    Appropriate numbers of amputations were recorded under OSHA 
logs, and appropriate workers' compensation amputations 
occurred pursuant to his examination.
    Mr. Hare. Just one final comment. We may be talking about 
apples and oranges, but we are talking about people who have 
lost limbs too. And I think that when we have an underreporting 
of 60 percent, you know, whoever is responsible for not getting 
the numbers correctly--it can be apples and oranges, it can be 
apples and anything, but the fact of the matter remains these 
are people, these are workers who have been harmed, severely 
harmed.
    Mr. Fellner. And I do not mean to denigrate any amputation, 
God forbid, for one second. The question is whether those 
workers were subject to OSHA's jurisdiction. And I would have 
to look much more closely at his study in order to make that 
determination and respond to your question.
    Mr. Hare. My time is up. I will come back to you, Dr. 
Rosenman, because I know you wanted to comment on this.
    The chair would now recognize the gentlelady from 
California, Ms. Woolsey, for 5 minutes.
    Ms. Woolsey. Thank you, Mr. Chairman.
    And I am so sorry that I have missed most of the questions. 
So I am going to ask a question that I think you all can answer 
for me. Well, I have two points.
    The first point is, the answer to your question probably 
has to do with who has hired you to work for them on this, 
which I find quite disturbing.
    But when we are doing such a poor job, I believe, in 
collecting the real data on workforce injuries, and when we 
have a hard time reporting severed limbs, amputations, how in 
the world do we report health, which isn't obvious, and near-
misses?
    I mean, because I was a human resources professional for 20 
years, and that was back at the beginning, and we had Cal/OSHA. 
And, actually, near-misses made the difference quite often of 
whether a person would later on lose an eye because we learned 
from an experience or another.
    So I don't know who to ask. I actually thought I was going 
to ask Dr. McLellan that question and then any of the rest of 
you.
    Dr. McLellan. Thank you for the question, because it is a 
question of significant concern to our members. And most of our 
members, when asked by an employer to advise them as to how to 
take good measure of how the employer is doing with respect to 
health and safety, would advise them to look beyond simply the 
OSHA log and very much to include first-aid reports as well as, 
as you point out, near-misses.
    The difference between a few-millimeter scratch on the 
skin, which requires a Band-Aid and might be considered a first 
aid or a near-miss, and a significant laceration, perhaps 
severe enough to cause an amputation, is luck, not safety.
    Ms. Woolsey. Right.
    Dr. McLellan. And so the point here is that the OSHA log 
itself will not give a true luck for the purpose for which we 
really have it, which is to prevent work-related injuries and 
illnesses.
    The OSHA log even at its best is only going to be a lagging 
indicator, and it is a body count. We would really like to be 
able to use a suite of indicators that take a look at the 
bottom of the iceberg in order to prevent anyone from getting 
on the OSHA log for the real reason because it is safe.
    Ms. Woolsey. Well, Mr. Span, if an employer had an 
appropriate safety committee, would a report internally of 
near-misses be a good indicator to the committee of what needed 
to be concentrated on?
    Mr. Span. Yes, it could be true in some factors. It depends 
on actually where you are working at, because of the fact--that 
safety committee can basically--people who were inside the 
warehouse on site at the job can actually determine what need 
to be changed and what steps they may take to make the place 
even safer to go to work. You know, it is sad that you have to 
go to work and look around you, scared of what is going to 
happen or what limb is going to be cut off today.
    And just to add on a little bit to this, it is sad that 
most of the reason why a lot of this stuff is not being 
reported, because of these companies with their private doctors 
that they send you to, and these doctors will actually, no 
matter--from what my experience in seeing, that you can have 
your feet broken, toes broken, they send you back to work the 
next day. And then I believe this is the reason a lot of this 
is not getting reported.
    Ms. Woolsey. Well, would you mind going back the next day 
if you weren't losing salary? I mean, light duty?
    Mr. Span. Me, personally, I wouldn't go back to your job; 
you can basically keep it. Like I said, I am a diabetic, and my 
health and----
    Ms. Woolsey. No, I mean, it would depend on the situation. 
But when an injured worker is ready to go back to work or a 
worker in poor health is ready to come back to work, if they 
were put back on light duty and with full pay, would there be 
any objection to that?
    Mr. Span. I am quite sure a lot of people would go back to 
work if they are going to get their full pay and be able to 
support their family and pursue the American dream, like we all 
are. We need to support our families. And, you know, the price 
of gas today, who can afford to take off work?
    Ms. Woolsey. Well, that is true too.
    Yes, Mr. Whitmore?
    Mr. Whitmore. Yes, Ms. Woolsey, thank you very much. Real 
quickly, near-misses? The really good companies out there, they 
are collecting information on near-misses already, because they 
understand what you are saying. I think you are right about a 
safety and health program; a good one should have that.
    This right here is a picture from the Charlotte Observer of 
a gentleman's ankle with one, two, three, four, five screws in 
it. This wasn't a near-miss. It was a real hit, and didn't get 
recorded. It was an oversight by the employer.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Mr. Hare. The chair recognizes the gentleman from Michigan, 
Mr. Kildee, for 5 minutes.
    Mr. Kildee. I thank you, Mr. Chairman.
    Mr. Span, can you tell us a little more about the effect of 
company raffles or other incentive programs in your workplace? 
Do they encourage workers to be more safe, or do they encourage 
workers to perhaps hide their injuries?
    Mr. Span. First, personally, I believe it is--incentive and 
raffle, the reason why they company is doing it, to keep people 
quiet. Because of the fact that, you know, with the policy that 
they have at the company I was employed with, you know, it is 
totally unheard of. And they use this tactic to keep the 
people's mouth closed. Okay, well, we are going to win an mp3 
player or a trip to Hawaii for a week or stuff in this nature 
that, you know, that is just what they offered them if you do 
not have any injuries in your department. So most of the people 
would love to take their wife on a cruise to California, to 
Great America or whatever the case may be. So I believe it is 
something that they are using to keep people quiet from 
reporting these injuries.
    Mr. Kildee. Mr. McLellan, could you comment on that?
    Dr. McLellan. Sure. Yes, I concur. Our members, we have 
been collecting anecdotes. And, for example, one of our senior 
physicians reported a case in which an employee came to his 
clinic with a very fresh laceration, obviously had just 
occurred, requiring sutures. And he asked the physician to 
consider this as not work-related, to pretend that it had 
occurred the night before, because to consider it work-related 
would mean that his entire team would miss out on an 
opportunity for a steak dinner.
    Mr. Kildee. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Hare. Thank you.
    I just wanted to follow up. I know, Dr. Rosenman, you had 
something that you wanted to say, and then I maybe have one 
question for you.
    Dr. Rosenman. Thank you.
    Yes, well, this study that was asked about was we reviewed 
emergency department data. And so it was worker compensation 
data, but we also looked at emergency.
    I think it is important, this issue, whether it is within 
the scope of OSHA, I mean, as a health-care provider, I am 
interested in amputations and I am interested in preventing 
amputations. And I think it is too narrow to say, oh, well, 
OSHA may not cover this. I think we need to think about work-
related injuries and illnesses and how are we going to prevent 
them in the United States.
    And one other point I would like to make is, you know, it 
is true, the issue that Mr. Fellner has raised about workers' 
comp, well, maybe that is a different fruit. But, you know, in 
seven states this has now been looked out, and in seven states 
they are not being counted in the current annual survey. And in 
these studies, these people all had at least 3 lost work days. 
So these were people in the workers' comp system. In Michigan, 
it was 7 days away from work; in some of the states--because 
each state does vary. But in all seven states, people with at 
least 3 days away from work were not being counted in our 
current statistics.
    And, to me, that is not apples and oranges. Those people 
were off work because of a work-related injury and illness, and 
they were not being counted.
    Mr. Hare. Mr. Whitmore, you had something you wanted to 
add?
    Mr. Whitmore. Thank you, Representative Hare. Appreciate 
it. A couple quick things.
    As much as I appreciate Dr. Rosenman's testimony, the 
mission of the Department of Labor is to take care of American 
workers. The mission of OSHA is to take care of American 
workers. I am very appreciative of his work. I want my agency 
to do its job effectively, honestly and openly.
    I want to show you this from the Charlotte Observer series. 
This is their safety program. It is a T-shirt, and it says, 
``Strut McClucker, Columbia Farm's Safety Mascot.'' I guess 
when I get fired, I can put in for this job. ``Two million safe 
hours without a lost-time accident.'' That is what you get. 
That is what you get when you work there, as well as all these 
other things I have here. That is their program.
    If OSHA can't or won't do its job, it is up to you all to 
make it do the job that we are paid by from the American people 
to do.
    Thank you.
    Mr. Hare. Thank you, Mr. Whitmore.
    Let me thank all the panel for coming.
    I just wanted, in closing, to say something here. It seems 
to me Mr. Whitmore brought up a great point. We have 90 percent 
of the employers are doing the right thing and reporting this. 
Our job is to make sure that those people who work with the 10 
percent who aren't--I am thoroughly convinced there is 
underreporting going on.
    The T-shirt, you know, maybe, Mr. Span, I was just thinking 
of the T-shirt, you could wear that to Adventure Land or 
something. You know, it is just incredible to me that we have 
accidents occurring and yet we don't report it. The pictures, I 
think, speak much louder than probably anybody could.
    I will tell you that Chairman Miller is a great chairman. 
And this is great hearing, and I had the honor of being able to 
chair the last part of it. It has been my first chance to sit 
in this chair, but----
    Ms. Woolsey. You did well.
    Mr. Hare. Thank you.
    But he did bring up a good thing.
    I think, too, one last thing. I think it is important that 
we just don't talk to the employers when we go in to find out 
what is going on in that factory or that plant. You have to 
talk to the workers. They do the work every single day. They 
are the ones getting hurt. They are the ones that have seen 
their coworkers getting hurt.
    If we just really only talk to the employer, we will never 
really, as the chairman said, ever get a real picture of what 
is actually going on there. And I hope someday we will get to 
where workers actually had the very same rights and opportunity 
to be able to stay safe.
    Let me just remind the members, you will have 14 days to 
submit additional materials for the hearing record.
    I thank all of you for taking time out of, I know, busy 
schedules to be here.
    This hearing is adjourned.
    [The statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 
                     From the State of Pennsylvania

    Thank you, Chairman Miller, for holding this important hearing on 
OSHA's underreporting of workplace injury and illness statistics.
    Several recent academic studies have concluded that OSHA 
significantly underreports the number of workplace injuries and 
illnesses that occur in the United States. Anecdotal evidence from 
newspaper articles and workers support the findings of these studies 
and suggest that, at least in some cases, workers are being pressured 
to not report injuries by their employers.
    OSHA has long used the declining number of reported workplace 
injuries and illnesses as evidence of their effectiveness and to defend 
their policies. Thus, determining whether or not OSHA has been 
underreporting injuries and ensuring that OSHA's future reporting is 
accurate is not only important for transparency, but also for making 
good public policy.
    Thank you again, Mr. Chairman, for holding this hearing. I yield 
back that balance of my time.
                                 ______
                                 
    [The statement of Ms. Sanchez follows:]

Prepared Statement of Hon. Linda Sanchez, a Representative in Congress 
                      From the State of California

    Chairman Miller, I thank you for holding this very important 
hearing on the under reporting of workplace injuries. As one of the Co-
Chairs of the Labor and Working Families Caucus, I have been working 
hard over the past several years to draw attention to workplace 
illnesses, injuries, and fatalities.
    Sixteen workers are killed on the job every day in America. And 
hundreds more are the victims of illness and injury. Yet OSHA sits idly 
by while construction cranes topple across the country and workers in 
the microwave popcorn industry have their lungs and lives destroyed by 
diacetyl.
    Current OSHA appointees argue that workplace deaths and injuries 
have declined during their tenure. Could one reason be that OSHA simply 
isn't very good at enforcing its reporting rules? In its relations with 
employers, it seems to me OSHA is more of a lap dog than a junkyard 
dog.
    As we will hear in today's testimony, taking OSHA's work-related 
injury statistics at face value is about as naive as believing a child 
who says ``I didn't eat the cookie,'' as he looks at you sweetly with 
crumbs all over his face and hands.
    The job-related deaths, injuries, and diseases that plague the U.S. 
workplace are preventable. But OSHA, under the current Administration 
as well as past Administrations, has simply underperformed. It hasn't 
been funded, at least at any time that I can recall, at anywhere near 
the levels necessary to promote a true culture of safety and respect 
for those getting the job done every day in factories, warehouses, and 
offices across the country.
    And during the Bush Administration, the chronic under funding has 
been combined with an effort to minimize enforcement and maximize 
friendly relations with employers. Fox * * * henhouse. It's and old 
cliche. But it's never been more relevant.
    The Bush Administration's approach to overseeing workplace safety 
has been a lot like its approach to overseeing the Enron debacle and 
the mortgage crisis: say little, do less, and direct attention 
elsewhere.
    And in the meantime, constituents of mine work at the Ports of Long 
Beach and Los Angeles, contracting cancer and heart and lung diseases 
after years of breathing and coming home covered in particulate matter 
from diesel and other pollutants.
    Working for a living shouldn't be deadly.
    Mr. Chairman, for workers in my district, and for workers across 
the nation, I thank you for holding this hearing. And I hope that it is 
one more chink in the wall of silence that surrounds workplace dangers.
                                 ______
                                 
    [Whereupon, at 12:52 p.m., the committee was adjourned.]

                                 
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