A hospice nurse in Virginia was recently awarded workers’ compensation benefits after she was involved in a motor vehicle accident while on call.

The hospice nurse worked on call during the weekends and court records showed that her employer mainly contacted her via pager. When the pager did not work, which was common, her personal cell phone served as a backup means of contact. During her on call days the nurse used her cell phone exclusively for work purposes, going so far as to tell her friends and family to call her husband if they needed to get in touch with her.

The accident occurred when her cell phone rang and she momentarily looked down, assuming her employer was trying to contact her. The distraction caused her to drive the vehicle off the road and strike an adjacent embankment. Due to this unique set of facts, a Virginia court stated that her response to the call was the result of her attentiveness to the distinct requirements of her job, specifically monitoring her cell phone for employer communications. Therefore, there was a “causal connection between the claimant's injury and the conditions under which the employer required the work to be performed,” the court ruled.

My Two Cents:

In Alabama, a worker's failure to follow a safety regulation provides a defense to paying indemnity benefits (but not medical benefits). In order to take advantage of this defense, employers must have "anti-distracted driving" rules as part of their safety policy. For example, employers could require employee's to pull over before using their cell phones, GPS, or other electronic devices.
 

It may come as a surprise to many, but driving while using a cell phone delays a driver’s reaction time as much as a blood alcohol concentration of 0.08 percent, the highest legal limit.  This fact was presented at a summit held by the US Department of Transportation on the issues arising from distracted driving. A representative from the AAA Foundation for Traffic Safety made a stirring point when she testified, “People who wouldn’t get drunk and drive somehow think it’s OK to text and drive - which is just dangerous.”

Data from the National Highway Transportation Safety Administration show that crashes associated with distracted drivers led to 448,000 injuries across the U.S. just in 2009.  This makes sense when you consider that 80 percent of all crashes are related to driver inattention. There are certain activities that may be more dangerous than talking on a cell phone, however, cell phone use occurs more frequently and for longer durations than other, riskier behaviors. Thus, the #1 source of driver inattention is cell phones.  For every 1 million new cell phone subscribers in the U.S., fatal distracted driving incidents are expected to increase by 19 percent.

Driving distracted is the danger, but it is what causes this distraction that is gaining attention.  Factors that lead to distraction include texting, calling, changing the radio station and even checking out beach-goers in their pool-side attire.

In response to these statistics, the Occupational Safety and Health Administration (OSHA) has announced an aggressive program to combat “The Number One Killer of Workers”, driving distracted.  The program calls all employers to ban texting while driving.  In addition to OSHA’s efforts, state legislatures across the country are creating legislation that bans the use of cell phones while driving.

Advocates in the world of workers’ compensation are now questioning the future policies surrounding these issues, particularly, the compensability of workers who use cell phones while driving on the job.  Aware that public concerns and policy are often followed by a legislative response, we anticipate a legislative directive here in Alabama that will set a standard for these issues.  Until then, whether or not these activities are considered by the courts as “arising out of and in the course of the employment” will be up for debate.

My Two Cents:

In Alabama, failure to follow a safety rule is a defense to paying indemnity benefits but not to paying medical benefits. Therefore, it is important for employers to have a written rule prohibiting distracted driving and to also have the employee sign an acknowledgment of same.

On April 20, 2010, Transocean’s Deepwater Horizon drilling rig exploded, leading to 1.3 million gallons of crude oil leaking into the Gulf of Mexico per day. By comparison, the Exxon/Valdez spill, which has long been considered the worst environmental disaster in American history, only consisted of 10.8 million gallons of crude oil…total. The Gulf spill is reaching that number once every 8 days.The total estimated cost of clean up will be between $15 - 23 billion. BP will also be liable for an estimated $14 billion in lawsuits brought by the fishing and tourism industries in the Gulf states. One future consequence of the oil spill that is not as readily apparent, however, is the effect that the spill will have on employers and workers compensation insurance carriers.

Over 25,000 workers were helping clean up the Gulf Coast by the beginning of June. The number of workers participating in the cleanup will only rise in the coming months. According to WKRG5 in Mobile, AL BP relies on subcontractors to handle this work. BP requires that the workers go through at least four hours of training before being certified to participate in the cleanup, but it appears that many of these workers are under trained and under-supervised. The Labor Department has already voiced concerns that BP’s safety systems for these workers are grossly inadequate. The dangers these workers face range from inhaling toxic chemicals and coming in direct skin contact with the crude oil to ergonomic stresses and heat stroke. Some workers participating in the cleanup in Louisiana have already fallen ill. One only has to read about the long term health problems that have afflicted the cleanup workers from the Exxon/Valdez spill and then look to the media for photographs and videos of clean up workers with minimum or no protective gear.

There are a number of Gulf Coast personal injury attorneys who have already begun marketing their law firms to workers in anticipation of future workers comp claims. It is important that employers (and their workers’ comp insurance carriers) begin taking proactive measures to protect these workers if they are involved in the cleanup. OSHA has published a list of precautions that should be taken on their website. These include general things such as regular rest breaks to prevent heat stroke, having water readily available, providing sun screen to protect from sun poisoning, and providing personal protective equipment to protect employees from the toxins in both the crude oil and the dispersants being used to clean the spill. While OSHA states that the level of toxins that workers are being exposed to fall within non-hazardous limits they continue to keep a close eye on the situation.

My Two Cents:

The oil spill cleanup poses serious risks of long-term injury to workers. There were over 1,800 workers’ compensation claims filed as a result of the Exxon/Valdez spill. The Gulf spill will probably result in many more workers’ comp claims being filed considering that there are already twice as many workers involved in the cleanup than were used during the Alaskan spill. The law that governs these claims will differ depending upon where the worker is injured.

If the worker is injured on shore he will be covered by the state’s workers’ compensation laws in most cases (there are a few limited situations, such as working on a dock or pier, where a worker will be covered by the federal Longshore and Harbor Workers’ Compensation Act). Employees who are injured on a seafaring vessel will be covered by the Jones Act. The Workers Comp Kit Blog  is a good resource for some basic facts about this law. Both workers’ compensation laws and the Jones Act require the employer to pay for medical costs resulting from the injury. Unlike workers’ compensation laws, under the Jones Act the employer will not be required to pay for any resulting disability to the employee once he has reached maximum medical improvement. Under the Jones Act, however, the employee will be able to file a lawsuit against his employer for future lost wages and punitive damages. In order for an employee to prevail in this type of lawsuit he must show either that the employer was negligent or that the vessel was not seaworthy.

Additionally, it is possible that these injured workers may be able to get relief from federal plans.  The Oil Pollution Act of 1990 (signed in response to the Exxon/Valdez spill) allows the government to use the Oil Spill Liability Trust Fund (OSLTF) for a number of things, including payment for uncompensated removal costs and damages.  It is not entirely clear whether this fund could be used to aid injured workers.  The new federal healthcare bill contains a provision that expands Medicare to cover victims of “environmental health hazards.”  This provision is another avenue that may be potentially used to compensate injured oil spill workers.

Employers must be diligent in educating employees and requiring the use of protective equipment. If the employees then choose to violate the safety rules, they will do so at their own peril.

The Alabama Workers Comp Blawg is designed to keep readers up to date on legislation, case law, and cutting edge issues regarding workers' compensation in Alabama and the nation.            www.alabamaworkerscompblawg.com