Posts Tagged ‘distracted driving’

Risk, ADA, OSHA, fraud & other workers comp news notes

Wednesday, April 20th, 2011

Risk roundup – Check out this week’s Cavalcade of Risk.
Americans with Disabilities – This week’s must-read is Dan Reynold’s essay in Risk & Insurance: Disability in the Second Act. He says, “… it’s not that the amended act, which goes into effect on May 24, represents a new game. It’s that the amended act has returned the ADA to its original, intended scope.” The article offers advice for employers to prepare for the changes.
OSHA gets tough on distracted driving – If your employees are texting while driving, the stakes just got higher. Jon Gelman posts about OSHA’s plan to fine employers for distracted driving accidents. This is part of OSHA’s initiative to reduce transportation accidents, the top cause of worker fatalities. Gelman says, “OSHA will investigate motor vehicle accidents, including cell phone records, and will issue citations and fine employers where an accident involved texting while driving. While OSHA has jurisdiction over employers, and not employees, it hopes to encourage all employers to declare motor vehicles a “text free zone.” More information and resources at the OSHA Distracted Driving page.
Fraud – to paraphrase the common horror film trope, “the fraud is coming from inside the house. When people refer to workers comp fraud, more often than not they are talking about employees. But as we’ve noted many times, employer fraud such as misclassification, is also a huge and costly problem. There are other players too – such as doctor mills, dishonest agents, and this week, Roberto Ceniceros points to a fairly egregious example of TPA adjuster fraud.
Limits on comp for PTSD?SafetyNewsAlert talks about legislative efforts to curb permanent workers’ comp coverage for mental distress. A bill that is currently under review in Maine is drawing opposition from first responders. Here’s more on the proposed Maine legislation.
Dangerous technologies – In the new and emerging health risks department, we bring you Facebook Depression. Add this to the many other emerging technology-related maladies: Blackberry Thumb, Cell Phone Elbow, IPod Ear.
News briefs

Reckless, Negligent and Not Compensable

Tuesday, April 19th, 2011

Last September we blogged the sorry saga of Illinois trooper Matt Mitchell. He was heading toward an accident scene, siren blazing, texting his girlfriend and weaving in and out of traffic at a mind-boggling 126 miles per hour. (There was no urgency, as other troopers were already at the scene.) He crossed the median and slammed into a car coming the other way, killing teenage sisters Kelli and Jessica Uhl. Three days after pleading guilty to criminal charges, he filed for workers comp benefits. We expected that he would be able to collect; after all, comp is no fault and Mitchell was certainly in the “course and scope of employment.”
We guessed wrong. An arbitrator found him ineligible, saying he neglected his duties as a trooper by taking “unjustifiable” risks. He was ineligible, in effect, because he knowingly and willfully put himself and others at risk. Mitchell is appealing the arbitrator’s decision.
Carved in Stone
In an effort to make sure that the ugly circumstances of this incident are not repeated, the Tags: , , ,
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Health Wonk Review, Valentine’s week edition, and other news of note

Thursday, February 17th, 2011

When is healthcare like a box of chocolates? Find out over at Colorado Long Term Care Insider, where Louise & Jay Norris host an excellent Valentine’s Week Edition of Health Wonk Review.
Other news of note:
Tasers & cop claims – Roberto Ceniceros of Comp Time has an interesting post on how taser use by police is reducing injury rates and comp claims because it provides a low-impact way to subdue suspects. But tasers are also used on cops-in-training, sometimes resulting in serious injuries.
The straight dope – Joe Paduda has a do-not-miss post on narcotic opioids in workers comp and Cephalon’s role, in which he discusses how drugs like Fentora & Actiq, which are FDA approved only for cancer patients, are being promoted to workers comp patients. (One court ruling stated, “data suggested that more than 80% of patients using Actiq did not have cancer,” and “oncologists accounted for only 1% of Actiq prescriptions filled at retail pharmacies in the U.S.”) Cost is a huge issue, but Joe points out that it is not all about the money: Actiq has been linked to dozens of deaths from overdose.
Medical marijuana – Last week, Michigan court rulings dealt a double blow to medical marijuana. One of the Michigan rulings upheld the firing of a Walmart employee who had been proscribed the drug to control symptoms of his brain cancer, a case we posted about last year: Walmart: Shopping for Souls in Aisle Three. (Also see our recent post: Medical Marijuana in the Workplace: Dude, Lock Me Out!.)
Insurer market share – Cyril Tuohy of Risk & Insurance offers a short journey through the latest insurance industry statistics, including some great stats about market share: This Just in: Known and Lesser Known Facts About the Industry
Not something you see every dayCompNewsNetwork informs us that the Ohio Bureau of Workers’ Compensation has recently snagged a record $830,000 in restitution from a prior fraud conviction. The case was truly egregious – an anesthesiologist who bilked the system for $60 million in fraudulent claims – while contributing to at least two deaths in the process. Dr. Jorge Martinez was sentenced to life in prison for “the first known conviction involving a criminal charge of health care fraud resulting in death after the overdose of two patients seeking treatment for work related injuries.”
Illegal immigrant update – Peter Rousmaniere’s Working Immigrants blog is your in-the-know source for tracking the latest issues and stats on the topic. Via the Pew Hispanic Center, he informs us that the 2010 illegal population in 2010 remains about the same as in 2009: about 11.2 million, of which 8 million are in the workforce, and 58% of which are Mexicans. See more detail: Estimate of illegal immigrant population in 2010.
Good WC bookmark – We are adding WorkCompWire as a bookmark in our sidebar and you should keep it handy too. It’s a good source of news and opinion – check it out!
Savings on complex care – Yvonne Guilbert points out that overlooking simple facts can add significant costs to a claim very quickly. She asks carriers what they are missing on complex claims that might be costing them money.
Market pulse – At PropertyCasualty360, Caroline McDonald talks about why buyers shouldn’t get too comfortable with low workers comp rates. One of the primary sources for the article is our friend Mark Walls of Safety National – who is also well know as the founder of LinkedIn’s Work Comp Analysis Group.
Diversity – Jared wade posts that 18 insurance firms are among the best companies for LGBT employees to work for – “scoring a perfect 100% as a Best Place to Work for their ‘support equality for lesbian, gay, bisexual and transgender employees,’ according to HRC.”
Distracted driving in NY – A sign of things to come? In New York, drivers will get two points for talking on hand-held cell phones. A two-point penalty has already been in place for texting while driving. At that rate, auto insurance sure could get expensive quickly for compulsive phone-o-philes.
Mental health – CCOHS, the Canadian counterpart of OSHA, makes the case for why employers should care about mental health at work.

Reckless, Negligent, Compensable

Tuesday, September 21st, 2010

Matt Mitchell was an Illinois state trooper. On November 23, 2007, he was bombing along Interstate 64 at 126 miles per hour, on his way to an accident scene. He was chatting with his girlfriend and sending text messages. The road was somewhat clogged with holiday travelers. His speeding was not necessary, as help had already arrived at the accident scene. The distracted trooper crossed over the median and hit a car head on. Two sisters, Kelli and Jessica Uhl, were killed instantly. Two other occupants of the car were injured. Trooper Mitchell suffered severe leg injuries.
Speeding for no reason. Texting and talking unrelated to his job. Reckless. Negligent. And, it appears, compensable.
Mitchell pleaded guilty to reckless homicide and reckless driving and was sentenced to 30 months probation. He resigned his position with the state police. He has filed a claim for workers comp benefits, which is likely to be awarded because Mitchell was in the course and scope of employment. In the stipulation during a civil suit filed by the parents of the Uhl sisters, the Illinois attorney general agreed that, despite the criminal negligence, Mitchell was acting in his capacity as a state trooper when the accident occurred. Yes, the speeding was gratuitous, the texting irresponsible, the girl friend chats unrelated to work. But Mitchell was heading to the scene of an accident. He was a jerk and a menace, but he was working.
On the Hook
Illinois taxpayers face an interesting double jeopardy. They are on the hook for the deaths of the Uhl sisters. And they will soon be on the hook for Mitchell’s loss of function payments and possibly for permanent total benefits.
It’s worth noting that just three days after pleading guilty to the criminal charges, Mitchell testified in a claims hearing that he was not responsible for the crash.
If Mitchell had not been heading for an accident scene, if he was speeding simply because he wore a uniform that allowed him to get away with it, perhaps his claim would be denied under the concept of “wilful intent.” We are reminded once again of comp’s cornerstone principle of “no fault.” There’s plenty of fault in this sorry saga, but it does not – alas, it cannot – matter one bit.

Thumbs Down on New York Texting Ban?

Tuesday, September 1st, 2009

As a follow up to Julie Ferguson’s gruesome imagery from Monday’s blog, we find Clyde Haberman’s entertaining piece in the New York Times about the state’s new statute outlawing texting. As of November 1, it will be illegal for anyone to drive and text in the Empire State. Haberman goes on to write:

If any law may be described as a no-brainer, this one is it. You have to be certifiable to think that you can stare at a small screen and thumb-type on a tiny keyboard for five or six seconds while going 65 miles an hour, and not be a potential threat to everyone in your path. In the opinion of many safety experts, self-deluding multitaskers have had their way long enough. It’s time for some multi-tsking to rein them in.

Bravo, Clyde! But Haberman goes on to say that the new law is pretty toothless. “It doesn’t throw the book at texters so much as it tosses a few pages in their direction.” (Shades of Keith Olbermann?)
The problem is in enforcement. The new statute will only receive “secondary” enforcement, which means that a fine may be imposed only if the police find some other violation, such as speeding or running a red light. Beyond that, the maximum penalty is only $150. That’s chump change for the high rolling multi-taskers who clog New York’s multitudinous arteries.
Live Free and Die?
Haberman interviews Judith Lee Stone, president of Advocates for Highway and Auto Safety, a Washington lobbying group. She says “secondary enforcement is not OK, and there’s no reason for it.”
The good folks in New York like to creep up on enforcement. When they first initiated a seat belt law, they began with secondary enforcement and eventually moved to primary status. All states now require seatbelts, with the notable exception of New Hampshire, which exempts adults over 18 from the mandate.
“It must be that “Live Free or Die” spirit,” Haberman quips.
To which Stone responds, “Live free and die, I’d say.”
The low budget ($20,000) video was produced by the Chief Constable of the tiny town of Gwent in SE Wales UK. The video has become a You-Tube sensation. The Insider humbly suggests that New York legislators check it out and then revisit the enforcement section of the new law. No one wants to suffer injury or even death just because some twit can’t wait to for the proper time to communicate something that, in the scheme of things, most certainly can wait.

Brutal, graphic video aimed at teens: don’t text while driving

Monday, August 31st, 2009

There’s been quite a lot of media coverage on the high risk of texting while driving and several states are lining up to issue bans or restrictions on the practice. We recently featured a texting while driving game that let’s you get a rough gauge of how you’d fare while texting at the wheel. But this simulator really soft pedals things in comparison to the approach that some countries are taking in getting the message out. Nothing that we’ve seen or read here in the U.S. has the raw, visceral power that a recent British public service announcement aimed at teens.
Before watching, please be warned that this video is very graphic.

There’s no disputing the danger that texting while driving poses – the studies are adding up. One of the more recent is a study by the VirginiaTech Transportation Institute, which found that texting truck drivers were 23 times more at risk of a crash or near crash event than nondistracted drivers. But there has been some debate about the effectiveness of shock advertising as an awareness and prevention tactic – some see them as highly effective, while other think that viewers tend to tune them out. This is an issue that came up about two years ago when Ontario’s Workplace Safety and Insurance Board released a series of graphic public service announcements designed to highlight worker safety.
As for the subject of this ad – currently, 18 states ban texting for all drivers. The Governors’ Highway Safety Association maintains and updates a handy chart of state cell phone and texting laws – check back often, as this is an issue on several state legislative dockets.

Distractions Behind the Wheel, Revisited

Tuesday, August 4th, 2009

The other Nicholas Sparks is in a bit of trouble: not the well-known writer, but an obscure 25 year old tow truck driver from upstate New York. The lesser known Sparks has earned himself a place in the Business Hall of Shame when he raised multi-tasking to new heights (or better, depths). He was talking on one cell phone, texting on another(!), when, surprise of surprises, he lost control of his vehicle, smashed into another car, careened across a front lawn and plunged his flatbed tow truck into a swimming pool. The 68 year-old woman driving the other car suffered head injuries but is in good condition; her 8 year old niece suffered minor injuries.
Sparks has been charged with reckless driving, talking on a cell phone and following too closely. He was driving a truck for Adams Towing Company. While I was unable to find an area company listed under this name, I do hope they carry robust liability coverage. The company is clearly guilty of negligence and will pay dearly for their multi-multi-tasking employee.
Driven to Distraction
The New York Times has singled out the use of cell phones while driving as a major danger. They have a begun a series focusing on this new road hazard entitled “Driving to Distraction.” In their most recent article, they describe the ubiquitous talking on cells performed by taxi drivers. (My family caught a cab during a downpour in Brooklyn last week; I sat in the front seat and listened to one side of a conversation in an Arabic tongue that was underway when we entered the cab and continued after we had paid and exited.)
While New York City has one of the most stringent laws in the country prohibiting taxi drivers from using cell phones while driving, it is rarely enforced. Fewer than 800 summonses were issued to cab drivers in 2007. If the law were enforced, the annual summonses would run in the hundreds of thousands.
It all comes down to this: anyone who drives can no longer plead ignorance to the dangers of talking/texting and driving. A new and potentially huge liability has emerged for the employers of people who drive in the course of employment. The employers are going to be held accountable for the mistakes of their employees. Property will be damaged and people will be hurt, even killed. In order to avoid liability, management will have to demonstrate that effective cell phone policies have been both promulgated and enforced.
Which leads to one final question: with liability ultimately falling to the insurance companies, what steps have they taken to ensure that policy holders have mitigated this ever-increasing risk? How will their underwriters identify the companies most likely to produce the next Nicholas Sparks – the driver, that is, not the writer.

Hot off the presses: Health Wonk Review; other WC news notes

Thursday, July 23rd, 2009

Paul Testa of New Health Dialogue Blog takes the notion of a carnival to heart while hosting this week’s edition of Health Wonk Review: All’s Fair in Love and Health Reform. Join him as he takes us along the Midway that is Pennsylvania Avenue, the big tent of bipartisanship, the funhouse mirrors of the health reform debates, and the roller coaster rides in Congress. Great edition!
And in other news…
Think you can safely text while driving? Studies show that drivers overestimate their ability to multitask behind the wheel. This game from the new York Times measures how your reaction time is affected by external distractions: Texting While Driving Simulator.
West Virginia touts progress one year into privatization. Cited among the successes: 154 insurance companies have active workers compensation policies in the voluntary market, the unfunded liability on “old fund” claims has dropped by more than half to $1,5 billion, and claim protests have fallen 68%.
Attorney Jon Gelman looks at the challenges that declining salaries and unemployment pose to workers’ compensation.
Roberto Ceniceros is blogging from the Disability Management Employer Coalition conference. His report yesterday focused on the generational impact on disability, with each generation facing different disability drivers.
James Dao in the New York Times posts about a new study pointing to an increase in mental health diagnoses in vets, usually PTSD or depression: “The study … was based on the department health records of 289,328 veterans involved in the two wars who used the veterans health system for the first time from April 1, 2002, to April 1, 2008. The researchers found that 37 percent of those people received mental health diagnoses. Of those, the diagnosis for 22 percent was post-traumatic stress disorder, or PTSD, for 17 percent it was depression and for 7 percent it was alcohol abuse.”

Cell Phones: Unsafe at Any Speed?

Monday, June 1st, 2009

We’ve been following the tentative steps taken by management to confront a relatively new and ubiquitous risk: the use of cell phones while driving. Most people seem to realize that cell phone use is a dangerous distraction, whether involving talking or, lord help us, texting. While surveys indicate that nearly every driver (98 percent) considers him or herself a safe driver (NOT!), fully 20 percent of drivers between 16 and 61 admitting to texting while driving and 80 percent admit to talking on their cells. What we have is a serious disconnect between risk and action. We are all just driving obliviously up DeNile.
We have focused our attention on the potential risks to corporations, who are liable for the actions of their employees “in the course and scope of employment.” Back in 2001, Dyke Industries settled a case for $16 million, involving one of their salespeople taking out an elderly pedestrian while chatting on a phone.
Maggie Jackson in the Boston Globe writes that some corporations have taken aggressive action to mitigate the risk. Back in 2005, the engineering firm AMEC prohibited employees from any and all cell phone use while operating a vehicle. DuPont, a legendary leader in safety, first required employees to use headsets and then, on second thought, forbid all cell phone use while driving. AstraZeneca has similar policies in place.
Risky Business
What about everyone else? When, if ever, will managers of major and minor corporations bring the hammer down on blatantly risky behaviors behind the wheel?
We have two thoughts on the matter. First, it will take a few more tragedies to get the attention of corporate America on this risk. We all seem to labor under the delusion that multi-tasking is necessary and harmless. It is neither. Secondly, insurance companies are bound to wake up and smell this distinctly acrid brew: underwriters for general liability and fleet auto policies will begin to ask whether potential insureds have policies in place prohibiting the use of cell phones while driving. Those failing to implement such policies may find themselves scrambling for coverage. Perhaps a few innovative carriers will begin to offer discounts to employers with credible policies in place.
Employees subject to cell phone restrictions are beginning to develop new means of coping. Heck, there are support groups for everything, why not for cell phone withdrawal? Here are some of the tips that have emerged:

Plan Ahead. Call and send messages before leaving your desk.
Play relaxing music in traffic jams to reduce the frustration of “not doing anything.”
Turn off wireless devices. Still tempted? Lock them in a bag. Place the bag in the trunk.
Put a message on your voicemail saying, “I’m in a meeting or driving.”
Take a cab instead of driving, especially on out-of-town trips.
Warn people who regularly call – i.e. spouses – that you aren’t available in transit.

The Insider would add one more tip: when driving, just drive, with one relentless point of attention and with one goal in mind: arriving safely at your destination. For most of us, driving is the riskiest part of the work day, yet we treat driving as a relatively mindless means to an end. Alas, if we are not careful, driving may be the last thing we ever do.

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.