When risk managers scan the virtually infinite horizon of risk, they often overlook the single greatest exposure in the working world: driving cars and trucks on the roads of America. Today we approach the issue through the back door, wherein an individual killed in an accident was deemed not be in the course and scope of employment. It might be the backdoor, but it still leads to the same conclusion.
Linda Gadbois was a cook for the California prison system. She suffered a work-related injury and was sent to a doctor. When this doctor proved unsatisfactory, she was allowed to choose another medical provider from a list. After completing her appointment in May of 2008, she headed back to work. She was involved in an accident: Gadbois was killed; the other driver, Kenneth Fields, was seriously injured. Under the theory that Gadbois was “in the course and scope” of employment, Fields sued Gadbois and the state of California, her employer. No need to ask why: the state’s pockets were significantly deeper than those of the late Gadbois.
Going to Work
Field’s case rested on the interpretation of the “coming and going” rule: was Gadbois, leaving a medical facility after work-related treatment, inside or outside of employment? The court noted that she had requested the second treatment on her own. Her employer did not require her to drive to the appointment, nor was she required to drive as part of her employment. As a prison cook, the essential job functions were limited to her cooking: how she got to work was not her employer’s concern.
As a result, the fifth district appeals court concluded that the state was not liable for any injuries Gadbois caused while on her way to work. Field’s suit against the state was dismissed; the status of his suit against Gadbois is not known, though presumably he collected up to the limits of her personal auto insurance policy.
It is worth noting that Gadbois’s death was not compensable under workers comp. Gadbois was paid for the day of her death in accordance with a death benefit policy that covers all workers who die on a regular work day, whether at work, on the way to work, or on paid vacation or leave. Gadbois received her full salary for the day of the accident, but received nothing from workers’ comp. Had she received death benefits under comp, Fields would have had a stronger case.
Drivers: Good, Bad and Indifferent
While the specific circumstances proved Gadbois to be the exception, many people do drive in the course and scope of employment: obvious examples would be tradesmen, salespeople on the road and people whose customers are visited in their homes. But the circle of drivers must be expanded to include any and all employees who run errands or perform any aspect of their jobs in company cars or in personal vehicles.
Some employees do this company-related driving on a regular basis; others only sporadically. But any employee driving “in the course and scope” of employment is a representative of the employer. Whether consciously or not, the employer has endorsed the driving skills of employees whose work involves driving. Even if the employee is in a personal vehicle, the employer has, in effect, entrusted them with the keys. This “entrustment” may well comprise the riskiest part of the working day.
Basic Management
How should employers manage this risk? It’s really quite simple. Any and all employees who drive – or who might possibly drive – while working should be required to submit annual copies of their driving records. If there is a cost in obtaining the records, the employee should be reimbursed. The employer should review the records carefully and place restrictions on any employees with marginal or poor driving records. Indeed, the employer may well find that some employees who drive while working do not hold valid licenses. If these unlicensed drivers have accidents while working, the employer is on the hook for anything that happens.
In addition, employees should be required to report any moving violations, on or off the job. A speeding violation on the weekend might not preclude an employee from driving during work, but a formal warning would be appropriate.
Finally, prudent employers should have written policies on limiting the use of cell phones while driving and, needless to add, prohibiting texting. These policies should be enforced, with appropriate documentation and disciplinary action for any violations.
The risks of driving permeate our lives. When we drive in the course of work, the risks are shared by employee and employer alike, even if the latter is oblivious to the exposure. For the savvy manager, a well organized approach to the risks of driving goes a long way toward containing the ever-present perils of the open road.
Archive for October, 2012
Entrustment: Risk on the Road
Wednesday, October 3rd, 2012News roundup: Risk, Dispensing Docs, Costs for Employees, Litigation & more
Wednesday, October 3rd, 2012Risk roundup – Our Down-Under friend Russell Hutchinson of Chatswood moneyblog posts this week’s Cavalcade of Risk, with a global roundup of posts. Check it out.
Costs for Employees – Insurance Journal reports on the latest Bureau of Labor Statistics report on the cost of U.S. employees, noting that the nationwide average cost for private industry employers was $28.80 per hour worked in June 2012. “The costs ranged within each region, with total compensation costs of $24.44 in the East South Central division to $33.47 in New England.” The article offers more detail on the report, noting that costs were collected from a sample of 47,400 occupations from about 9,500 establishments in private industry. Data excludes self-employed and farm and private household workers.
Physician Dispensing – Joe Paduda looks at potential conflict of interest issues in a post about ABRY Partners, he asks, “How is it that an investment firm owns stakes in a TPA, MSA company, subrogation firm – and a physician dispensing and billing company?” Is one company cleaning up a mess that another company makes? In other repackaging news, he notes that Miami-Dade Schools has taken a stand on physician-dispensed repackaged drugs – they are refusing to pay the markups, a move that saved more than half a million dollars. Employers take note: Is this a potential area of savings in your comp program.
Narcotics Studies – Rita M. Ayers reports on a recent study by Accident Fund Holdings and Johns Hopkins University that links opioid use to an escalation in overall claim cost in the Tower MSA Blog. She notes that the study reveals that 55% to 85% of injured workers receive narcotics for chronic pain. She says that the study, “…examined the interrelationship between the utilization of short- and long-acting opioid medications and the likelihood of claim cost escalating to a catastrophic level (> $100,000). Analyzing 12,000 workers’ compensation claims in Michigan during a four-year period, the study focused on whether the presence of opioids alone accounted for the cost increase or whether costs increased because opioids were associated with known cost-drivers, such as legal involvement and injury severity.” Related: WCRI: Nearly 1 in 12 Injured Workers Who Started Narcotics Still Using 3-6 Months Later.
Worst States for Lawsuits – “Lawsuit Climate 2012″ is a study evaluating how fair and reasonable states’ tort liability systems are perceived by businesses in the U.S. It was conducted by the U.S. Chamber Institute for Legal Reform. According to those surveyed, Delaware has the best legal climate for businesses.See respondents’ picks for the Top 10 Worst States for Lawsuits, along with more on the study’s results.
High Costs for Police Dept. – The LA Daily News reports that Los Angeles spends more on LAPD workers’ comp claims than for all others combined – some $65 million in 2010-2011 alone. The department averages 250 claims a month. Authorities say that it is “…one of four drivers of the city budget deficit. Others include the costs of salaries, pensions and health care.”
News Briefs
- Ceniceros at Comp Time – Managing opioid use
- Deadly workplace injuries for women dominated by transportation, violence
- New study sheds light on the health effects of job insecurity
- DePaolo: Work Comp Is Simple When Distilled to Basics
- Should workers’ comp pay for medical marijuana?
- Tools for older drivers
- October Wellness Resources: Breast Cancer, Mental Illness, Bullying, Stuttering & more
- Workplace stress Infographic – signs, causes, treatment
Addendum As a follow-on to yesterday’s post about Shackleton’s Medical Kit, we found more information and a photo of Shackleton’s medical kit at The Science Museum of London, and a related post from NPR’s Health Blog: ‘Cocaine For Snowblindness’: What Polar Explorers Packed For First Aid.
Lessons from Ernest Shackleton’s Medical Kit
Tuesday, October 2nd, 2012That is the ad that was allegedly posted to attract crew to Sir Ernest Shackelton’s Arctic Expedition on the Nimrod in 1907-09. There’s been a lot written about this adventure to one of the then-most remote corners of the earth. It is still among the most remote wilderness locations today – contemporary workers who agree to stint at Antarctic bases have to prepare for a long haul since some locations only afford a two to three month window when bases are reachable.
A few years ago, when Gavin Francis accepted the position as a medical doctor ‘wintering’ at Halley Base, a profoundly isolated research station on the Caird Coast of Antarctica, he had to plan accordingly since the base is unreachable for ten months of the year. He’s written a pretty fascinating article in Granta magazine comparing the preparations he took in terms of supplying a medical kit with the list of supplies in Shackleton’s Medical Kit.
“In the well-stocked polar section of the little base library I unearthed the packing list for Shackleton’s medical kit – the drugs and dressings he took on the sledge trips of his Nimrod Expedition of 1907, the one that turned back only ninety-seven miles from the South Pole. It added up to a weight of about three kilos, less than a sixth of the modern kit, and to my technomedical mind read more like a witch’s grimoire than the best medical advice of just a century ago.”
It’s a pretty fascinating read, one that we think might tickle the fancy of occupational physicians. We enjoyed the author’s observations about how the practice of medicine has changed, particularly in regards to the challenges of caring for a workforce in a remote location.
Chances are, no matter how remote your workplace, planning for employee health and safety program doesn’t have quite the same extremes in parameters. But one thing remains true: advance planning can still mean the difference between life and death; knowing how to respond quickly can be the difference between a relatively minor event and a life-changing tragedy.
What’s the status of your workplace first aid kit?
In Fundamentals of a Workplace First-Aid Program (PDF), OSHA suggests:
“Employers should make an effort to obtain estimates of EMS response times for all permanent and temporary locations and for all times of the day and night at which they have workers on duty, and they should use that information when planning their first-aid program. When developing a workplace first-aid program, consultation
with the local fire and rescue service or emergency medical professionals may be helpful for response time information and other program issues.”
The booklet outlines OSHA Requirements, recommended First-Aid Supplies, including Automated External Defibrillators, guidance on First-Aid Courses and Elements of a First-Aid Training Program. In addition to evaluating their own organization’s risk factors, employers should be aware of any state laws governing workplace first aid.
ANSI/ISEA Z308.1-2009 is the current minimum performance requirements for first aid kits and their supplies that are intended for use in various work environments. You can purchase these through the American National Standards Institute (ANSI) or the International Safety Equipment Association (ISEA). If you want to save a few dollars, you may be able to find a free copy, such as the one we found minimum contents list from the Minnesota Department of Labor and Industry.
Automated external defibrillators (AEDs) programs are an increasingly common component in a workplace health and safety program to address sudden cardiac arrest. These programs require some medical guidance and training to put in place.
Arguably, one of the most parts of your emergency planning should be to prepare your employees and your supervisors about what to do in the case of a medical emergency. Put your policies and protocols writing and communicate them to your employees frequently. Don’t forget to include solitary and remote workers in your emergency planning.
Annals of Compensability: Heart Attacks at Work
Monday, October 1st, 2012Over eight years ago, my colleague Julie Ferguson blogged on the issue of workplace heart attacks: compensable or not? (Workers Comp Insider just passed its ninth birthday, but we’ve been too busy to celebrate.) Heart attacks present a unique challenge to the courts overseeing workers comp. The general standard requires that something unusually stressful happened at work in the moments leading up to the incident; if people are doing their usual work in the usual manner, the heart attack does not arise “out of” employment. If, on the other hand, the demands of work are unusually stressful and beyond the ordinary, the incident might well be compensable.
Today’s case raises the isse of whether anything that happens on Super Bowl Sunday can be ordinary. Colleen Robert’s husband (no first name given in the court documents) normally worked as a receiver for Waldbaum’s Supermarkets in New York. While the 2010 superbowl did not involve any New York teams – the contest featured the Indianapolis Colts versus the New Orleans Saints – Super Bowl Sundays are always busy for super markets. Roberts was asked to manage the store during the unusually busy day. At one point, he engaged in a verbal altercation with a customer (which in itself may not be unusual for those working in New York). Later that same day, while still at work, Roberts suffered a myocardial infarction and died.
The case was first deemed compensable, then denied by an administrative law judge, and then finally adjudicated by the Appelate Division of the New York Supreme Court. The judges noted that any death at work is presumed to be work related, but they also looked for a causal connection between the fatal attack and the work being performed. The autopsy revealed that Roberts suffered from extensive cardiovascular disease and thus was a good candidate for a myocardial infarction. In arguing against compensability, the defense pointed to the lapse of time between the verbal altercation with a customer and the attack itself. However, the judges noted that the entire day was full of stress and excitement for Roberts, who was not performing his usual job in the usual manner. They determined that the fatal heart attack was compensable.
Best Practices
In a similar case involving a supermarket in Massachusetts, a 70 year-old man with a pacemaker collapsed and died on his break. Because he had a known heart condition, and because of his age, the market assumed the fatality was not work related and failed to report it to their insurer. Months later, the widow filed for comp benefits. Due to the absence of timely interviews with co-workers and supervisors, and due to the “death at work” presumption, the case was deemed compensable.
The lesson for employers is both simple and straight-forward: report any and all incidents of heart problems immediately. Regardless of the state jurisdiction, the courts are likely to apply the same standards as in New York. And if a heart attack occurs on Super Bowl Sunday, defense may have a tough time proving it was just another working day.
