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OSHA compliant? Then not compensable

October 24, 2013

A worker recently was turned down for workers’ compensation for a simple reason: His employer was OSHA compliant. But is that fair?

The worker, a furnace operator who alleges occupational exposure lead to his development of pneumoconiosis, also known as “black lung,” originally had his claim rejected by both a claims administrator and the West Virginia Workers’ Compensation Board of Review. Most recently, the state’s Supreme Court rejected his claim on appeal.

The employer claimed – and the courts agreed – that industrial hygiene testing performed during the worker’s employment proved the employer did not expose the employee to harmful quantities of dust. State law in West Virginia says employers who submit credible evidence of compliance with OSHA permissible exposure limits* may lead claims administrators to consider employee exposure insufficient to merit a compensable claim.

And there’s the rub – compliance with permissible exposure limits.

By OSHA’s own admission, current PELs are horribly out of date. Just because an employer is compliant does not mean its employees are actually safe. But, according to the law in West Virginia, it means just that.

My question to you is whether this is acceptable. Obviously, there needs to be some way to gauge employer accountability and responsibility when determining compensation for ill or injured workers. Should it be PELs, even though many are out of date and thousands of other exposures go unregulated? Or should another mechanism be used that takes into account employer responsibility to comply not only with OSHA standards, but also with more up-to-date recommended exposure limits?

Let me know your thoughts in the comments section below.

*The Supreme Court ruling and West Virginia law use the phrase “OSHA and/or MSHA permissible exposure levels,” which I take to mean the same as “permissible exposure limits.”

The opinions expressed in "Washington Wire" do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

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