Articles Posted in On-the-job Car Accidents

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A woman whose husband was killed on-the-job in Atlanta while working for the city is seeking to challenge Georgia’s sovereign immunity and worker’s compensation exclusive remedy provisions.accident1

When her husband was killed, he was riding in the cab of a city-owned garbage truck, driven by his co-worker. Problem was, his co-worker was drunk. So drunk, in fact, his blood-alcohol level was three times over the 0.08 limit. (In commercial vehicles, the legal limit is 0.02, although the city has a zero tolerance policy.) Officials later found a bottle of vodka in the grass. Decedent had no alcohol in his system.

Her husband was thrown from the vehicle and died on impact. She too was a city employee. Her supervisors were the first to inform her of his passing.

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Many people drive to and from work, but some are required to drive in the course and scope of employment. workdriving.jpg

Generally, those who drive during the work day for work purposes may be covered by workers’ compensation in the event of a serious crash. Meanwhile, those who are simply “coming and going” – i.e., commuting to and from work – are usually not covered.

The recent case of Seabright Ins. Co. v. Lopez highlights arguments that can arise between an employer/insurer and an injured employee/surviving family members in workers’ compensation claims following an auto accident.

According to court records, employee had worked for the oil and gas processing company eight years at the time of the accident. While he lived with his wife in one Texas city, he almost never actually worked in that city. He was assigned to work at various remote locations, and during these jobs, he usually made his own living arrangement, typically staying at a local motel. He was paid hourly, plus given a stipend for food and lodging when he stayed out-of-town. He was also given a company vehicle to get to and from different job locations, but he wasn’t paid for his travel time to and from job sites.
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When it comes to workers’ compensation law, states have varying applications with regard to disputed issues. In general, though, what must be proven is the injury or illness was caused or compounded by work-related duties or functions, and that the individual seeking to collect has legal standing to do so.
A recent case before the South Carolina Court of Appeals posed some interesting issues with regard to these elements, but the claimant still prevailed.

In Thomas v. 5 Star Transportation, claimant was the widow of a worker who died in a traffic accident while driving a tour bus for his employer. But the case was complicated by two central facts:

  • The worker had suffered a brain aneurysm around the time of his death, though it could not definitively be proven it happened before the crash.
  • The woman who sought spousal benefits was not in fact married to decedent, as his divorce to his previous was not final at the time of their wedding – a fact she didn’t learn until after he died.

Yet, claimant was able to succeed in securing workers’ compensation death benefits, but it didn’t come without a vigorous fight by the employer.
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State supreme court justices in Kentucky reversed three lower courts in finding worker injured in a vehicle accident while crossing the street to access a fast-food restaurant adjacent to her office was not entitled to collect workers’ compensation for her injuries.
The court determined the worker was not acting in the course and scope of employment because she undertook the route in “in order to seek personal comfort.” In so doing, the court found, she exposed herself to a hazard that was not only totally removed form the typical day-to-day coming-and-going activity, but it was also illegal per state law (she was jaywalking) and thus impliedly barred by the company.

The ruling in US Bank Home Mortgage v. Schrecker underscores once again how difficult it can be to secure workers’ compensation payments when a worker leaves the traditional office setting. Work-related car accidents may be compensable, but one must prove he or she was acting in the course or scope of employment.
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Workers are constantly forced to multitask, particularly when it comes to juggling their personal and professional lives. Unfortunately, trying to be efficient cost one home health care nurse in Ohio the right to collect workers’ compensation benefits, following a decision by the Ohio Supreme Court in Friebel v. Visiting Nurse Ass’n of Mid-Ohio. carcrash2.jpg

The court ruled against the “dual intent” doctrine, which would have allowed a worker running a personal errand while on his or her way to the next assignment to collect benefits for a crash that occurred at that time.

Although the decision doesn’t directly affect workers in Georgia, we can rest-assured courts will review this case when similar questions arise.
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It’s been well-established in Georgia, as well as many other states, that if a worker is traveling to or leaving from work, and is injured in a motor vehicle accident, workers compensation benefits may not be collected.
However, our Atlanta workers’ compensation lawyers know there are always exceptions, which is why injured workers should never assume the outcome of their claim is a foregone conclusion.

In the case of Williams v. Petromark Drilling, LLC, the worker was injured in a car accident while on his way home from work. However, he was ultimately awarded workers’ compensation benefits after a great deal of back-and-forth, because, as the Kansas Supreme Court determined, the trip occurred while the claimant was “in the course and scope of his employment.”
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It’s been nearly five years since a Salt Lake City construction worker was nearly killed after being struck by a sport utility vehicle as he worked alongside the road in a designated work zone, managing traffic.
Our Atlanta workers’ compensation lawyers understand the teen behind the wheel was reportedly being shown a photograph by another teen in the passenger seat.

The construction worker doesn’t remember any of it, but he suffered 11 broken bones and severe brain injuries. Recovery has been slow, with a pelvis shattered in four places, three broken ribs and a broken heel, among other injuries. He’s had to undergo knee surgery and five shoulder operations. And his brain, while making miraculous strides, still can’t always grasp the correct words. Simple tasks like tying his shoes and buttoning his shirt have become impossible, as have playing baseball, basketball or riding ATVs with his friends, as he once loved to do.

Some days, he’s angry. Other days, he finds himself deeply depressed. But he’s dedicated to prevention and speaking to teenagers in high schools about the dangers of distracted driving, particularly in construction zones.

In 2011, there were nearly 75 roadside construction workers fatally injured by vehicles nationwide.

Georgia ranks fourth in the nation for pervasiveness of roadside construction fatalities and injuries. It accounts for 5 percent of all the country’s roadside construction fatalities and 4 percent of roadside construction injuries.

Between 2003 and 2007, some 640 workers were killed while working at roadside construction deaths, accounting for about 8 percent of all construction fatalities during that time frame. Almost half of these incidents involved a worker being struck by a vehicle or mobile equipment.

The Centers for Disease Control say that about 60 percent of those cases involve being struck by construction equipment.

You might think these cases would be fairly straightforward in terms of injury law. But in fact, there are many benefits to having an attorney who is familiar with work injuries in particular.

Although the case out of Utah shows how driver negligence is clearly a prime issue that injury lawyers will examine, another potential angle might be investigating whether the construction signs near the work zone were negligently-placed.

For example, sometimes there is construction equipment actually in the roadway. In other cases, the road is uneven, damaged or torn-up, and the construction signs don’t accurately reflect that or aren’t placed in the proper location.

In cases like these, the responsibility would fall on the company or contractor responsible for managing traffic control. Additionally, the Department of Transportation may also bear some of the liability, as it is the duty of the state DOT to inspect the construction site and sign placement. If the inspection wasn’t properly carried out, this could be grounds for liability.

According to the Bureau of Labor Statistics, roadside construction incidents were most likely to occur in April through October – accounting for nearly 65 percent of the total. Mostly, this has to do with the fact that this is when the bulk of the construction takes place.
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Since the summer of 2010, texting while driving has been prohibited in Georgia for all motorists and teens have been barred from all cell phone use. headset.jpg

However, Atlanta workers’ compensation lawyers know that companies that don’t have comprehensive cell phone policies for on-the-road employees are not only putting those workers at risk, they are opening themselves to potentially expensive claims.

The National Safety Council is hosting a series of free employer cell phone policy seminars, citing that almost a quarter of all crashes today involve cell phone distracted drivers. Unfortunately, none of the one-day courses offered are in Georgia, but the organization still offers a wealth of information online about establishing an employee cell-phone policy in your workplace.

The first thing to understand is that this is not something that should just concern commercial driving firms. The risk is applicable to all workers whose job at some point involves driving. Some examples might be service technicians or salespeople. A recent study by the National Highway Traffic Safety Administration revealed that many motorists who use cell phones while driving (even when its against state law) say they do so because of work-related communications.

So companies that expect workers to be on their phones while driving must understand they are assuming a sizable risk. It’s often not something we think of because it isn’t something we see outlined by the Occupational Safety and Health Administration in industry-related guides. But let’s consider if it were anything else: If your employer knew that some operational action of their business was exposing workers to four times a greater risk of injury, why would they encourage it? Yet that’s what companies that encourage cell phone use among driving employees are effectively doing.

The fact is, motor vehicle crashes are among the leading two causes of death in this country, with as many as 43,500 people dying each year since 1994. That doesn’t even count the millions who suffer life-threatening or life-altering injuries as a result of these collisions. Cell phones have contributed to these measures, and even laws banning handheld devices aren’t doing enough, according to the NSC. In fact, in late 2011, the National Transportation Safety Board recommended that every state enact zero tolerance bans that encompass all portable electronic devices for those behind the wheel – including hands-free devices.

Right now, there is no state in this country that entirely bans all drivers from any cell phone use. All states – and many employers – allow the use of hands-free communication in vehicles.

Texting while driving has gotten a lot of media attention. And to be sure, it is a serious problem. However, research has shown simply talking on the phone behind the wheel is dangerous. The fact is, people talk on their cell phones more frequently and for longer periods of time than they text. In 2010 alone, this contributed to at least 1.1 million motor vehicle crashes, versus approximately 160,000 attributed to texting while driving.

What’s problematic is that many employers and employees believe there is no risk to talking on a cell phone while driving, so long as their hands are free and their vision is unobstructed. (In most cases, drivers are using a headset or wireless ear piece.)

But hands-free devices do not free a motorist from the cognitive distraction, which takes a person’s mind away from the direct task at hand – driving. In fact, 30 different studies compiled by the NCS indicate hands-free devices aren’t any safer than handheld ones.

The common theme in this research is that the human brain has a limited capacity for attention. It can only process so many things at a time. For workers who are behind the wheel, the only thing they should be focusing on is the road.
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The Bureau of Labor Statistics recently released its preliminary estimates of fatal work accidents in Georgia and elsewhere, which showed that in 2010, more than 4,500 employees died as a result of work-related injuries.

That amounts to about a fatal work injury rate of 3.5 per 100,000 full-time equivalent employees for U.S. workers for the year.
Our Atlanta workers compensation attorneys understand that the final 2010 data for this information will not be released until the Spring of 2012. Until then, this is the most recent information available. It’s no surprise that a number of economic factors play a role in the number of fatal work injuries sustained every year. These factors include total hours worked, which was up slightly in 2010 in comparison to both 2008 and 2009.

According to the newly released data from the Census of Fatal Occupational Injuries:

  • There was a 5 percent decrease in the number of work-related fatalities experienced by those who were self-employed. This workforce experienced nearly 1,000 fatal work injuries in 2010.
  • The private mining industry experienced nearly 200 fatal work injuries in 2010. This amounts to an increase of nearly 75 percent from the previous year. The rate of fatal work injuries in this industry was nearly 20 per 100,000 FTEs in 2010.
  • The private construction industry was fortunate enough to experience a 10 percent decrease in the number of fatal work injuries from 2009 to 2010. The number of these injuries is down approximately 40 percent from 2006.
  • The number of work-related injuries caused by fires more than doubled from 2009 to 2010. There were more than 100 of these incidents in 2010, which is the highest number on record.
  • The number of workplace homicides involving women increased by more than 10 percent from 2009 to 2010. Although this number increased for women, the number for all workers decreased by about 7 percent from the previous year, which is the lowest number ever recorded.
  • Fatal work injuries among African-American and non-Hispanic workers declined by nearly 10 percent from the previous year, although the number of these incidents increased by more than 2 percent within the non-Hispanic worker category.
  • Work-related deaths involving Latino or Hispanic employees has declined nearly 5 percent.
  • Police officers experienced an approximate 40 percent increase in the number of fatal work accidents from 2009 to 2010. These workers experienced less than 100 fatal work accidents in 2009, but the number spiked to more than 130 in 2010.
  • The total number of worked hours for those both hourly and salary employees increased in 2010. Unfortunately, these hours decreased for those who are self-employed.
  • The number of fatal work injuries sustained by women increased by more than 5 percent, but decreased by only 1 percent for men.

The number of work injuries sustained by employees who were under the age of 18, workers age 25 to 34, and workers ages 55-years-old and older recorded a decrease in the number of these accidents.

There are twenty-seven states and the District of Columbia that reported to have experienced an increase in the number of fatal work injuries from 2009 to 2010. Only 23 states reported to have experienced a decrease in the number of these fatal accidents.
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The Georgia Department of Transportation (GDOT) recognized fallen workers earlier this week during the National Work Zone Safety Awareness Week kick-off. The celebration was held at the One Georgia Center and in attendance were many members from the transportation department and local government officials. This event was dedicated to the workers we’ve lost in unfortunate and preventable Atlanta work zone accidents.

Our Atlanta workers’ compensation lawyers urge you to participate in Georgia’s “Go Orange!” work zone safety campaign in an attempt to reduce the dangers in our highway construction zones.
“The arrival of spring and warmer weather, coupled with construction through the American Recovery and Reinvestment Act, mean an increase in highway construction and heightens the risk for Georgia motorists and GDOT workers,” a press release said.

GDOT officials report that, in 2009, nearly 700 people died and almost 34,000 people were injured in road construction zones in the United States, according to Fox 31. The National Work Zone Safety Information Clearinghouse reports that Georgia reported more than 30 deaths and almost 1,300 injures to those statistics.

“The biggest problem we have with that is motorist speeding through the work zone, not slowing down, and running what we’ve reduced the speed to; so speeding and then the other thing is texting and talking on the phone,” says Craig Solomon with the Georgia Department of Transportation.

Officials will be displaying 57 orange cones and will be wearing orange vests to alert drivers of the threats motorists pose to road workers. Officials are representing the 57 workers we’ve lost in work zones since 1973. Motorists present the greatest risk of threats to these employees. It is not uncommon for a Georgia construction employee to work in these zones while cars fly by at speeds of 65 miles per hour.

The National Work Zone Safety Information Clearinghouse offers these tips to workers in the construction and maintenance zones:

-Make sure you and your employer have ensured adequate separation between workers and traffic.

-Make sure everyone on site is trained in federal- and state-approved traffic control

-Implement standards that require all workers to wear personal protective equipment, which can include hard hats, safety glasses, steel-toed boots, reflective vests, etc.

-Make sure appropriate safety devices are use, such as drums, cones, and a truck-mounted attenuator when working in a closed travel lane.

-Avoid using MP3 players, radios, televisions or any other distracting devices while on the job.

-Have a plan for escaping your work area to a safe location if something happens.

GDOT officials have presented this Work Zone Safety Presentation to help motorists practice more educated driving skills in these construction and maintenance zones.
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