• If the employer obtains a contemporaneous opinion that is more authoritative and contradicts the initial opinion, the employer may follow the second opinion.

Getting a second opinion regarding an injured employees’ need for medical treatment, restrictions, or days away might allow an employer to avoid recording the incident on the 300 Log, but OSHA does impose some limitations.

Normally, a mere recommendation for medical treatment, restrictions, or days away makes a case recordable, even if the employee does not to follow that recommendation. However, OSHA allows employers to avoid recording an incident based on a “contemporaneous” second opinion that is more “authoritative.” If the employee already received medical treatment, however, a second opinion cannot negate the obligation to record the case.

Contemporaneous defined

OSHA does not define “contemporaneous” in the regulations, but offered clarification in a letter of interpretation (LOI) dated May 15, 2007. The evaluations must be conducted when the signs or symptoms are in the same stage of development, same degree of severity, and the condition is evaluated in similar context.

Opinions obtained on the same day would be contemporaneous. Acceptable time delays may differ depending on circumstances, including the type and severity of the condition. For instance, if the employee’s condition either improved or worsened between examinations, the condition would not be evaluated at the same stage.

In another LOI dated February 25, 2011, OSHA offered additional considerations regarding “contemporaneous” opinions to include:

• Whether the examination was in person (reviewing documents is not sufficient);
• Whether the examinations were done on the same day;
• Whether the employee was subjected to additional events or exposures between the examinations; and
• Whether medical treatment, restricted work activity, or days away occurred between the examinations.

Authoritative defined

The regulation at 1904.6(b)(3) defines “authoritative” as the “best documented, best reasoned, or most authoritative.” An LOI dated September 24, 2010, clarifies that the most authoritative opinion is “the best documented, the best reasoned, or the most persuasive.”

OSHA allows employers to make that determination. In fact, the preamble published in 2001 says, “the rule requires the employer to rely on the one judged by the employer to be most authoritative.” Also, a frequently asked question from OSHA states, “the employer may determine which recommendation is the most authoritative and record on that basis.”

So, if an injured employee gets a recommendation for medical treatment, restrictions, or days away, but the employer obtains a contemporaneous opinion that is more authoritative, the employer may follow the second opinion. However, once medical treatment is provided, the employer must record the case. A subsequent recommendation cannot “undo” a recommendation that was already followed or implemented.