Ramifications of Distracted Driving and Fleet Risk Management, by Rebecca Shafer, LowerWC.com, Amaxx Risk Solutions, Inc.

Do workers compensation laws need to be revised to exclude people who cause injury to themselves and others when driving distracted? And, how do employers manage this risk?

As of today, a Google search showed 32 states have laws banning every form of distracted driving including texting, and others are not far behind in passing similar legislation.

The National Highway Safety Administration (NHTSA) reportednearly 5,500 Americans were killed (16 percent of all traffic crash fatalities) and 448,000 were injured for 2009 in motor vehicle crashes involving distracted driving. When someone is behind the wheel while on the job distracted driving becomes an occupational hazard.

The NHTSA also reports motor vehicle crashes are the leading cause of work-related deaths but there is no statistic on how many involve distracted driving. However, there is no reason to think distracted driving in fatal work-related crashes is any less than in fatal crashes in the general population.

Workers often have no choice when it's necessary to communicate withoffices and dispatchers through cell phone calls and text messaging. The work environment may impose additional risks through in-vehicle telematics systems providing information on clients, schedules, and inventory. The desire to increase productivity and efficiency, the pressures created by tight schedules and unforeseen delays provide incentives for workers to make calls, text or access information data while driving, not when they are pulled over on the side of the road. Read more

Here's a list of some interesting cases we found on cell phone distraction and cell phone-related injuries. Most of the cases below are state agency decisions that have no precedential effect. Still, they help illuminate the issues involved when employees use cell phones. Note: Lexis.com subscribers can link to the cases below. Be sure you're logged onto your lexis.com account.

 

Cell Phones Causing Distraction:

 

Smith v. District II A and B, 59 S.W.3d 558, 2001 Mo. App. LEXIS 1959, overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.3d 220. Employee, a union representative, attended a meeting at a casino. While driving back to his hotel, he checked the voice messages on his cell phone. The road suddenly made a 90-degree turn, and his vehicle skidded off the road down an embankment and hit a parked train. He lost consciousness. When the police arrived at the scene and asked him his name, he said "Dale Earnhardt", a famous race car driver. Employee's blood alcohol level tested at .15% and .169%. The Commission found the accident occurred within the course and scope of employment. Read more

Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law. 

 

 

 

 > Read the summaries & court decisions.

 

1. MA: General Contractor Not Immune From Suit In Spite of Providing Workers' Comp Benefits to Workers of Uninsured Subcontractor

 

2. NY: Worker May Not Have Voluntarily Removed Himself From Labor Force; Board's Record Incomplete

 

3. OH: Employee Raped By Co-Worker May Not Sue Employer for Negligent and Reckless Hiring Where She Recovered Workers' Compensation Benefits for Injuries Related to the Assault

 

4. PA: Deduction of Business Expenses on Worker's Tax Return May Be Considered in Computing Average Weekly Wage

 

5. VA: Worker Establishes Compensable Claim In Spite of Question As to Time of the Injury  

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Fox v. De Larue Cash Systems, 2001 IA Wrk. Comp. LEXIS 485. Claimant was issued a cell phone by the company with direct payment or reimbursement during her term of employment. The cell phone was also used for communication with the office and for troubleshooting customer problems. While on vacation, Claimant regularly checked her email, logging in at least two hours each day, including the day in question of her accident. Claimant was returning early from vacation to help with an office problem. When en route to her home, Claimant lost control of her vehicle when searching through her purse for a cell phone. Claimant's vehicle rolled over, causing significant damage to the vehicle and injuring claimant. Claimant was found in the course of employment at the time of her accident.

Parilla v. Schaumburg Jeep, 2009 Ill. Wrk. Comp. LEXIS 670. Petitioner worked at a car dealership. A witness testified that Petitioner had a cell phone and was holding it up to his right ear when he hit his head on a hydraulic car lift. Petitioner felt pain in his neck, back, low back, left side, and forehead, which was bleeding heavily. Petitioner's accident was found to have occurred in the course of his employment.

Northcross v. Painters District Council No. 2, 2011 MOWCLR  LEXIS 79. Claimant was driving to a job site when a woman crossed in front of his car. Claimant testified that he was reaching for his cell phone at the time and was distracted. His vehicle collided with another car. He injured his neck, head and back. Award of benefits affirmed.

Turpin v. Wythe County Community Hospital, 2010 VA Wrk. Comp. LEXIS 795. The claimant, who was on call, was driving home from the hospice office when her cell phone light caught her attention. She looked down to her nursing uniform pocket where she had placed the cell phone, and then her car was suddenly in the gravel and there was a wreck. Award of benefits affirmed.

Lilly v. Home Paramount Pest Control Co., 2010 VA Wrk. Comp. LEXIS 118. Claimant was walking to a meeting to sign a contract related to pest control services when he stepped off a sidewalk because he was distracted by his cell phone, a flip phone, and he fell down. Claimant testified that he didn't know why he fell. The Commission found insufficient evidence that any condition of Claimant's employment caused his ankle to roll.

Cell Phone-Related Injuries:

Scheunemann v. Installation Concepts, 2004 MN Wrk. Comp. LEXIS 424. Employee was kneeling on the floor using a measuring tape to calculate floor area in a doctor's office while simultaneously talking to his supervisor on a cell phone that was lodged between his neck and shoulder. He heard a click or pop in his mid-back followed by sharp pain. Finding of work-related injury affirmed.

Barton v. MKG Construction, 2007 MOWCLR LEXIS 170. Employee brought his cell phone to a job site so that he could communicate with his employer. Employee suffered a traumatic injury to his right shoulder when his cell phone fell out of his shirt pocket while he was leaning over a water hole. Employee tried to grab for his cell phone and felt a pop or tear in his right shoulder. Award of benefits affirmed.

Witherspoon v. The Colonial Williamsburg Foundation, 2009 VA Wrk. Comp. LEXIS 769. Claimant was walking down a stairwell where the emergency lights weren't working so she used her cell phone light, but she fell on the last three steps. While she may have used poor judgment in using her cell phone, the Commission did not find that claimant took a risk of her own choosing that was independent of the condition of her employment. Claimant's injury took place where she was reasonably expected and required to be by the nature of her employment.