Archive for May, 2009

Texting and Driving: Dying to Communicate

Monday, May 11th, 2009

Aiden Quinn is 24 years old. He drives a trolley for the Mass Bay Transit Authority (MBTA or T) in Boston. He has a mediocre driving record, with three speeding violations (while operating a motor vehicle). Last week he was driving a trolley underground between Park Street and Government Center. He was texting his girlfriend, when he ran a red light and crashed into another trolley stopped in front of him. Over 40 people were injured, including Quinn. The T was shut down for hours.
Quinn has been fired – no surprise – and the T has now issued a policy prohibiting drivers from carrying cell phones. (I’m sure that made the other drivers real happy with their former colleague.) The 40 injured passengers are going to have numerous avenues for lawsuits, including: negligent hiring/negligent entrustment (should Quinn have been operating the trolley in the first place?); and negligent policies (they only prohibited cell phone use after the accident). We can assume that the T will settle as quickly as possible. This case is a real loser.
The larger policy implications are intriguing. It is safe to assume that any employee in the course and scope of employment who tries to text while driving is opening a huge liability for the employer. Texting is even more dangerous than talking on a cell phone: after all, you have to look at the screen to read a message and at the key board to reply.
[Aside: my teenage daughter assures me that her friends can text behind their backs without looking at the keyboard. This might work in class, but not very well on the road: “Look Ma, no hands on the wheel!”]
[Second aside: speaking of Ma, for a truly appalling (YouTube) video of a teenager who texts over 5,000 times a month, often while driving, check this out. If you can explain the passive “what can you do?” attitude of the mother, please explain via our comment section.]
Policy Conundrum
Employers are caught in a bind: they are virtually compelled to issue policies limiting cell phone use and texting while driving, even while they recognize that some of their best and most productive employees are multi-taskers who routinely operate this way.
Which brings us to the sad story of Phyllis Jen, a talented internal medicine specialist at Brigham and Women’s Hospital in Boston. Jen was driving her 2007 Toyota Prius when she drifted over the center lane at 6 pm (in full daylight). She crashed into another vehicle and was killed.
Police say it did not appear speed or alcohol played a role in the crash, but they were investigating whether Jen was using her Blackberry. Jen was famous for always being available, always willing to go the extra mile. Alas, she has abruptly and tragically run out of miles to go.
As companies struggle to integrate new technologies into safety procedures and as public officials struggle with whole new categories of risk, one thing is certain: the ubiquitous cell phone and related texting have taken a firm hold in our professional and personal lives. We just cannot seem to function without them. The problem is, in making ourselves available 24/7, we put our own lives and the lives of strangers at risk. Sure, we have important things to communicate. But on the scale of life itself, virtually all of these communications can and should be put off until time and circumstances allow. We might be dying to communicate with a colleague or friend, but it’s certainly not worth dying for.

Cavalcade of Risk and some quick links

Thursday, May 7th, 2009

Joe Kristan is hosting the latest edition of Cavalcade of Risk at his Tax Update Blog. Unsurprisingly, swine flu is a common themes in this issue – but there’s a grab bag of other risk-related topics, too – check it out!
Other links of note:
May is Electrical Safety month. OSHA resources on electrical safety
Does a focus on employee wellness pay off? The Wellness Calculator will help you to evaluate potential savings.
NIOSH: Safety and Health in the Horse Racing Industry.
Dissecting Fraud – a podcast from Legal Talk Network. Host Alan S. Pierce discusses employer fraud with his guest Attorney Michael I. Fish.
Various newsfeeds on Swine Flu – a good resource to keep you up to date on any developments.

A Firefighter Fights Back

Wednesday, May 6th, 2009

Over the past year, we blogged about a couple firefighters who abused the workers comp system. First there was the muscular Albert Arroyo, a Boston firefighter who participated in body building competitions, while collecting comp for a work-related disability. (Due to adverse publicity, he eventually lost both his job and his disability pension.) Then there was triathlete Christina Jijjawi, who parlayed a thumb injury into temporary total disability, during which she swam, cycled and ran for glory. Yes, I know, she was simply having an exceptionally good day.
Albert and Christina give firefighters a bad name. So it’s a pleasure to introduce you to Scott Miller, an apparatus operator with the LA fire department. He not only restores the good name to firefighters; he is an inspiration to any and all who believe in returning injured workers to productive employment.
Answering the Call
Seventeen years ago, in the middle of the Rodney King riots, Scott was racing toward a fire when a vehicle pulled along side his hook and ladder truck and fired a handgun. A bullet entered Miller’s cheek angled down through his body and severed a carotid artery in his neck. Given the quick response of his fellow firefighters, doctors were able to save his life, but a blood clot on the brain had left him paralyzed on the left side and unable to speak. (By the way, the shooter got 16 years – a bargain, considering that Miller “got” life.)
Miller was in rehab for over a year. He overcame the speech and many of the mobility problems, but never recovered fine motor skills in his left hand. He knew he could never do the physically demanding work of fighting fires, but he was determined to make it back to work. So he joined the Fire Prevention Bureau, where he eventually became a captain in charge of a crew that inspects commercial buildings.
He says of his prevention role: “It’s an area of work that I’ve come to respect. I realized that I had to move on and refocus on the more important things of life, that I can’t drag my dream with me until it becomes a nightmare ruining other positive things in my life.”
One of the ironies of this story circles back to Albert Arroyo. He, too, worked in the prevention bureau, but he used the excuse of a questionable injury to go out on disability, so he could pursue his dream of winning a body-building competition. Scott Miller’s dream was a little simpler and much more moving: he just wanted to be a firefighter again.

Barab signals OSHA changes, heightened enforcement

Tuesday, May 5th, 2009

We recently announced Jordan Barab’s appointment as Acting OSHA administrator and, as expected, he is losing no time in making changes. Last week, he testified at a hearing held by the Subcommittee on Workforce Protections of the House Committee on Education and Labor, outlining some immediate OSHA changes. These include:

  • the addition of new inspectors under the American Recovery and Reinvestment Act of 2009
  • formation of Severe Violators Inspection Program (SVIP). This is a reformulation of the Enhanced Enforcement Program (EEP), which will step up inspections and enforcement of large companies with repeat OSHA violations
  • the intent to work more closely with the Department of Justice to prosecute serial safety violators
  • a new National Emphasis Program of specialized inspections focusing on flavoring chemicals (diacetyl)
  • a suspension of establishing goals for new Voluntary Protection Program sites and Alliances so that more resources can be put on enforcement

Lisa Mascaro also discusses the shift to a more aggressive OSHA in the Las Vegas Sun. She notes that various either have been introduced or are expected to be introduced that would strengthen penalties for employers with serious or repeat safety violations and add a new criminal felony category.