The next two parts of this series will address the so-called NIOSH lifting equation. This part will discuss what the NIOSH lifting equation is and the fact that it is not the law in Texas (or anywhere else to the authors’ knowledge).
Often, if a plaintiff retains a plaintiff-oriented safety expert, that expert will opine that the nonsubscriber employer was negligent with respect to the plaintiff’s job duties for reasons associated with the so-called NIOSH lifting equation. Such claims are more complex but they are not meritorious.
In the early 1980s, the National Institute for Occupational Safety & Health (“NIOSH”), part of the CDC promulgated a “lifting equation” to help evaluate job duties and reduce the risk of back injury. The lifting equation was revised in 1991. Recommended procedures for applying the NIOSH Revised Lifting Equation (“RLE”) are contained in a 164-page instruction manual. The authors of the application manual are careful to note the limitations of the RLE and acknowledge that “the revised lifting equation has not been fully validated” and that it is “only one tool in a comprehensive effort to prevent work-related low back pain and disability.” The equation itself provides for a “Recommended Weight Limit” that is derived from six variables ranging from the “Load Constant” to a “Coupling Multiplier.” Suffice to say that the calculation involved is complex and filling in the numbers for all of the variables in the equations requires obtaining a great deal of factual data about regular lifting tasks associated with a job shift over a defined period of time. The Application Manual contemplates that the job-specific data be collected in a study of the job in question and provides specific, detailed procedures for the collection of the underlying data. Simply put, the RLE involves both a detailed job study and complex calculations based upon factual data.
As a threshold matter, however, the NIOSH RLE is not the law in Texas or anywhere else to the authors’ knowledge; it does not define an employer’s legal duty. Rather, as pointed out at the outset of this article, the plaintiff must prove negligence and the Texas Supreme Court held in Great Atlantic & Pacific Tea Co. v. Evans that there is no negligence on the part of an employer in requiring an employee to lift up to 100 lbs.
Sister courts have rejected the NIOSH lifting equation as imposing a duty because of grave concerns that it has “little applicability to the real world.” In Taylor v. Teco Barge Line for example, the plaintiff’s expert intended to offer testimony regarding the NIOSH lifting equation as evidence of negligence. The court rejected the NIOSH lifting equation and explained that “[t]he Lifting Equation is designed to limit lifting to a weight that nearly all healthy individuals could perform for a substantial period of time.” The court concluded that the lifting equation was not relevant to determining negligence, nor was it admissible as proof of negligence. In making its determination, the Taylor court cited Touray v. Glacier Fish Company for the proposition that the NIOSH lifting equation’s “per se lifting limit of 51 pounds is contrary to any standard of reasonable care the Court is aware of in the maritime industry, or any other industry.” The NIOSH lifting equation is not an acceptable legal standard for liability. Importantly, as the Virginia court emphasized in Ritchie v. Omega Protein, Inc. the NIOSH lifting equation itself states “the revised lifting equation has not been fully validated.”
Generally, whether there is a legal duty is a question of law for the court. And of course, experts are not permitted to render opinions about the law. Thus, in the absence of clear authority that the NIOSH RLE defines an employer’s duty, which seems unlikely so long as Great Atlantic and its progeny remain good law, claims premised on the NIOSH RLE should fail.
Part VI of this series will continue the discussion of the NIOSH RLE and how it is often abused and misused by plaintiff’s experts in lifting injury litigation.
