Managing the Risk of Transportation Injuries (WCO 2/13)

Managing the Risk of Transportation Injuries (WCO 2/13)

Vol. 23, No. 4

Going and coming rule

How do we determine compensability? Compensation is payable when the employee is injured in the course and scope of employment. To be considered in the course and scope of employment, the injury must relate to or originate in the employer’s business and occur in furtherance of the employer’s business.

For most workers, eligibility for benefits begins at the jobsite, often in the employer’s parking lot. Under the going and coming rule, employees generally are not eligible for benefits for injuries that occur during the commute to and from. There are exceptions, of course.

The circumstances where exceptions to the rule have been allowed by courts include when: (1) the transportation is furnished as a part of the contract of employment or is paid for by the employer; (2) the means of the transportation are under the control of the employer; or (3) the employee is directed in the employee’s employment contract to proceed from one place to another place. Establishing one of these circumstances does not automatically mean that the travel is in the course and scope of employment; it means that such travel is not summarily excluded solely by virtue of the fact that the employee was traveling between home and work.

Salespersons, visiting nurses, and other workers who spend a great deal of their time on the road or on call, where travel is an integral function of the job, and because they do not operate from a fixed locale, are often exempt from the going and coming rule.

Also, courts are generally liberal where business travel takes the worker away from home. Injuries that occur during recreational pursuits or other activities may be deemed compensable while employees travel, even if these activities would not be deemed work-related at home.

Recently, an appellate court in Texas found that traveling to work in a company truck, transporting tools and equipment, alone is insufficient to move a commuting injury into the course and scope of employment. American Home Assurance Co. v. De Los Santos, No. 04-10-00852 (Tex. App. Jan. 18, 2012). The court ruled that although the claimant was driving a company vehicle, this did not mean that his travel originated in his employer’s business. The mere furnishing of transportation by an employer to an employee as an accommodation, and not as an integral part of the contract of employment, does not bring the injury into workers compensation protection. The company vehicle must be a necessity from the employer’s perspective. Examples of such a necessity include where the jobsite is remote, where the company vehicle is part of the employer’s plan to have its employees arrive and leave at the same time, or where the employer wants to induce the employee to work at a particular site. 

Note that in California, when the employer provides the means of transportation, the course of employment begins when the employee begins to travel. For example, if the Texas case noted above were decided under California law, the worker who used the employer’s truck to drive to work would have been eligible for benefits.

There is an exception to the going and coming rule when an injury occurs on the employer’s operating premises. In Warrior Coal Company v. Stroud, 151 SW 3d 29 (Ky. 2004), the Kentucky Supreme Court ruled that a worker was eligible for benefits when he fell asleep at the wheel when driving on a private access road leading to the jobsite. The access road was located on the employer’s property and was used solely by employees. 

Frolic and detour

A claimant on a special mission for the employer at the time of an accident may be able to demonstrate an exception to the going and coming rule. A special mission is a trip made by an employee under the direction and for the benefit of the employer. For example, the boss asks the administrative assistant to pick up several reams of paper for the copy machine on the assistant’s way into work.

However, there is an exception to this exception. If the administrative assistant, on her way to work, travels from the paper supply store to the pharmacy to refill a prescription and is in a car accident in the pharmacy’s parking lot, the assistant has left the protection of the special mission exception. This so-called “frolic and detour” to the pharmacy constituted a physical departure from the service of her employer.

A frolic and detour ends when the employee returns to his or her original route, and the employee is again within the scope of employment. We should note that the courts make a distinction between a detour, which is only a minor sidetrack in the course of obeying an order, and a frolic, which is a major departure. Occasionally courts will still hold the employer liable for the results of a mere detour.

Managing going and coming risk

While it is always a good idea to hire responsible and careful employees, managing the risk of going and coming liability comes down more on the side of the employer’s actions. Make sure employee parking lots are free of hazards. Don’t put a company car provision in your employment contracts. 

Don’t ask employees to run personal errands for you during the workday and keep any work-related errands to a minimum. Inspect the driving record of anyone who operates a company vehicle. Finally, consider very carefully before you volunteer to transport employees to and from a jobsite. 

Negligent entrustment

Many people drive in the course and scope of employment: tradespeople, salespeople, homecare nurses, etc. This group also includes any employees who run errands or perform any aspect of their jobs in company cars or 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 the person with the keys. 

If an accident happens while the employee is working, the employer is on the hook for any injuries to third parties. Just as an employer is responsible for the employee who operates a complicated machine press, employers are presumed to have taken steps to ensure that all employees behind the wheel during work are safe drivers. Employers have “entrusted” employees with driving responsibilities. 

If the employee has a record of dangerous driving, or if his or her driving presents a direct threat to the safety of other drivers or pedestrians, it may be “negligent entrustment” to allow this individual to drive on behalf of the employer. If a serious accident should occur with the employee at fault, the employer will be liable for any damages that follow.

Managing the risk of vicarious liability

Vicarious liability is where the careless or wrongful act (the tort) of the employee is imputed to the employer because of the employer-employee relationship. The employer may be held liable even if its conduct is blameless. Vicarious liability is governed by the doctrine of “respondeat superior,” which translates to “let the person higher up answer.”

To manage the risk of your employees committing torts while driving for work purposes, you should require any and all employees who drive, or might possibly drive, while working to submit annual copies of their driving records. (You should reimburse employees if there is a cost in obtaining these records). Review the records carefully and place restrictions on any employees with marginal or poor driving records.

Further, employees should be required to report any moving violations, on or off the job. Formal warnings may be appropriate for some violations, such as speeding. Violations for alcohol or drugs should be treated very seriously.

Also, employers should have written policies forbidding the use of cell phones while driving, especially texting. Enforce these policies with appropriate documentation and disciplinary action.

Finally, while vicarious liability seems to work in favor of negligent employees, employers maintain the right to recover the full amount of a damages payment from the employee (indemnification). Therefore, it behooves employers to encourage employees to maintain appropriate limits on their personal auto policies.

Violence against drivers

Taxi and livery drivers are 60 times more likely than other workers to be murdered while on the job. Only the police and private security guards suffer more nonfatal assaults. The risks are compounded by several risk factors, including working with the public, working with cash, working alone, working at night, and working in high-crime areas. Improving safety for drivers includes both preventing injury and rapid response time when an incident occurs. Employers should:

• install automatic vehicle location or global positioning systems (GPS) to locate drivers in distress;

• install caller ID to help trace the location of fares;

• equip vehicles with first-aid kits; 

• install in-car surveillance cameras to aid in apprehending perpetrators;

• ensure that partitions are used properly and work effectively;

• work with the police to track high-crime locations and
perpetrator profiles;

• mandate safety training to teach drivers, dispatchers, and company owners protective measures;

• install silent alarms; and

• install debit/credit card fare systems to discourage robbers. 

Safety programs for delivery drivers

Delivery drivers also face an inordinate amount of workplace violence, due to their interactions with the public, their handling of cash, and the fact that a lot of the time they work alone and at night. Along with some of the safety procedures mentioned above for livery drivers, restaurant employers should consider requiring the customer to come to the car to pay for the delivery and pick up the food. (This may not be feasible in all circumstances — for example, disabled customers may not be able to come to the street.) It may be worthwhile to require delivery drivers to work in pairs, though you may have to increase their base pay because they will have to split tips. Or, require delivery drivers to call in before and
after each delivery. 

Employers should advise drivers not to enter darkened dwellings or drive down unlit alleys. They should limit deliveries after certain hours. Finally, when in doubt, when confronted with what appears to be immediate risk of harm, the driver should be instructed to return to the store (and risk the wrath of legitimate, irate customers awaiting their dinners).

Trucking injuries and OSHA

Workers in the trucking industry experience the most fatalities of all occupations, accounting for 12 percent of all worker deaths. About two-thirds of fatally injured truckers are involved in highway crashes. Truck drivers also have more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries are serious sprains and strains; this may be attributed to the fact that many truck drivers must unload the goods they transport. 

The Occupational Safety and Health Administration (OSHA) and the Department of Transportation (DOT) regulate safety and health in the trucking industry. Below are suggested strategies for preventing work-related roadway crashes. 

Fleet safety

Employers should provide fleet vehicles that offer the highest possible levels of occupant protection in the event of a crash. They should also implement a comprehensive vehicle maintenance program that includes pretrip vehicle inspections for key potential problem areas, immediate withdrawal from service for any vehicle with mechanical problems, and periodic withdrawal from service for comprehensive inspection and scheduled maintenance. 

No worker should be assigned to drive if he or she does not have a valid driver’s license, and the employer should maintain complete and accurate records of workers’ driving performance. Checks of driving records of prospective employees are just as important as periodic rechecks after hiring.

Where practical, consider adopting a “one driver, one vehicle” strategy. Assignment to a single vehicle instills a sense of responsibility and ownership. Also, a worker who operates the same vehicle each day may more easily identify potential mechanical problems with that vehicle. If you compensate truck drivers for time spent on required safety inspections, the drivers will have an increased incentive to perform them thoroughly.

Schedules should allow drivers to obey the speed limits. Enforce mandatory seatbelt use policies. 

Consider implementing driver safety programs that emphasize the link between driver safety at work and driver safety at home. Safe driving in the workplace benefits the worker’s family by reducing the risk of fatality or disabling injury. In addition, lessons learned on the job can increase workers’ awareness of the importance of safe driving outside of work hours.

Finally, require newly hired workers to attend performance-based defensive driving courses, with mandatory refresher training at regular intervals. 

Fatigue-related crashes

Employers should incorporate fatigue management into the safety program. Company policies should allow driver discretion in scheduling start times, delivery times, and rest breaks. Drivers with a reasonable degree of latitude in their work schedules can take rest breaks when they feel fatigued. 

Minimize the amount of time that drivers must spend loading and unloading cargo. This may reduce the risk of overexertion injuries, along with fatigue. 

Finally, consider installing electronic on board recorders to monitor compliance with hours-of-service regulations. 

Older drivers

Employers should offer periodic screening of vision and general physical health for all workers for whom driving is a primary job duty. Consider increasing the frequency of screening for workers aged 65 and older. 

Consider providing vehicles with features that may ease the driving task and decrease the risk of crashes and injuries among older workers. Such vehicle features include power steering and brakes, automatic transmission, clean and properly adjusted headlights, side air bags, and new technology such as crash avoidance systems and night vision enhancement systems. However, employers should be alert to the potentially negative effects of new technology, as older drivers may find it difficult and stressful to adjust to new aspects of vehicle operation.

Tips for older drivers

Few states require road tests for aging drivers. However, most states will accept reports of potentially dangerous drivers from police, family, or other observers and may require tests based on such reports. 

The following are some warning signs that indicate a person should begin to limit or stop driving: finding dents and scrapes on the car, getting lost, having trouble seeing or following traffic signals or pavement markings, confusing the gas and break pedals, misjudging gaps when merging, causing other drivers to honk, having a hard time turning their neck to check the blind spot, and having frequent “close calls.”

Some of the new technologies to help older drivers include:

• reverse monitoring systems: to warn of objects to the rear of the vehicle and to help drivers judge distances and back up safely;

• blind spot warning systems;

• lane departure warning systems;

• vehicle stability control: to help bring the vehicle back in the intended line of travel, particularly in situations where the driver underestimates the angle of a curve or experiences weather effects; 

• voice activated systems: to allow drivers to access features by voice command so they can stay focused on the road; and

• drowsy driver alerts.

Note that these measures would provide benefits in connection with drivers of any age, even though they may be especially helpful for older drivers.

Transportation industry-related diseases

Asbestos, a naturally occurring mineral fiber that is highly heat resistant, can cause serious health problems when inhaled into the lungs. If products containing asbestos are disturbed, thin, lightweight asbestos fibers can be released into the air. Persons breathing the air may breathe in asbestos fibers. Continued exposure can increase the amount of fibers deposited in the lung. Fibers embedded in the lung tissue over time may result in lung diseases such as asbestosis, lung cancer, or mesothelioma. It can take from 10 to 40 years or more for symptoms of an asbestos-related condition to appear. Smoking increases the risk of developing illness from asbestos exposure.

Many brakes and clutches used in new and recent model automobiles do not contain asbestos. However, asbestos has not been totally eliminated. Many mechanics and other employees in automotive repair shops are unaware that asbestos may be present in both old and replacement brakes and clutches.

OSHA’s asbestos standard requires the use of controls and safe work practices when employees work with brake shoes and clutches that contain asbestos. The proper use of engineering controls and work practices by properly trained employees working on automotive brakes and clutches will reduce their asbestos exposure below the permissible exposure level of 0.1 fiber per cubic centimeter of air, expressed as an 8-hour time-weighted average. Respiratory protection is not required during brake and clutch jobs where the control methods described below are used.

The two preferred OSHA methods to control asbestos dust during brake and clutch repair and service are: (1) a negative pressure enclosure/HEPA (high-efficiency particulate air) vacuum system, and (2) the low pressure/wet cleaning method. Proper training is essential to ensure that employees use the methods in an effective manner.

Cancer-causing diesel exhaust

The International Agency for Research on Cancer (IARC), which is part of the World Health Organization (WHO), in June 2012 classified diesel engine exhaust as carcinogenic to humans (Group 1), based on sufficient evidence that exposure is associated with an increased risk for lung cancer.

Exposure to diesel exhaust has previously been held to be a causative factor in contributing to a compensable occupational heart condition. Fiore v. Consolidated Freightways, 659 A.2d 436 (N.J. 1995).

Skin cancer

New research suggests that people in the United States are more likely to develop skin cancer, such as melanoma and merkel cell carcinoma, on the left side of their bodies. Driving may be to blame, because the left arm receives more ultraviolet (UV) rays. Many experts believe that, especially for fair-skinned people, UV radiation frequently plays a key role in melanoma, the deadliest form of skin cancer, which kills more than 8,000 Americans each year. UV radiation is also considered the main cause of nonmelanoma skin cancers, including basal cell carcinoma and squamous cell carcinoma.

Car windows do offer some protection, blocking most UVB rays (shortwave), an intense form of UV that often causes sunburns. UVA rays (long-wave), however, though less intense than UVB rays, penetrate glass and can still cause damage to the skin over time.

Drivers prone to skin cancer should use sunscreen, especially if they spend large amounts of time driving or prefer to drive with the window down. Employers should encourage drivers to keep their windows rolled up and use air conditioning and wear long sleeves. Bright or dark-colored, lustrous clothes reflect more UV radiation than do pastels and bleached cottons; and tightly woven, loose-fitting clothes provide more of a barrier between the skin and the sun. Broad-brimmed hats and UV-blocking sunglasses help shield the sensitive skin on the head, neck, and around the eyes — areas that usually sustain a lot of sun damage.

Medical monitoring may also be a good idea for employers of high-risk drivers. Employees should be taught the warning signs of skin cancer. Workers should periodically examine themselves for skin cancer warning signs including changes in size, color, surface characteristics, shape, outline, or asymmetry of a mole or other pigmented skin spot and any bleeding or crusted sores that won’t heal. If skin changes are noticed, workers should be checked and treated by a doctor as early as possible.

A final thought

Transportation puts employees more at risk than you might realize, and the management of workers compensation transportation exposures is complex. Whether employees need to drive as a primary part of their job or whether work-related driving is only incidental, you need to take steps to minimize the risk of death and injury.