In TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES, the trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with T.C.A. Sec. 50-6-225(e)(3) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence established that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation were found not compensable by the Supreme Court. The judgment of the trial court was reversed and the case was dismissed. This is another scary decision from the Supreme Court on this issue. We fear it will only encourage more claims of wilfull violation of safety rules by employers, who frequently pressure employees to take short cuts while maintaining a facade of written safety rules.
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US Transportation Secretary Ray LaHood is pushing for a national law banning the use of cell phones while driving. While speaking at an anti-distracted driving summit, in San Antonio,which was attended by medical personnel, government officials, and safety advocates, LaHood characterized distracted driving as a “national epidemic” and said that a federal ban would be the way to prevent it. LaHood said that he doesn’t think other distracting behavior, such as eating or applying make-up, should be banned by the federal government since “not everyone does that.” LaHood added, “But everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”
New survey finds distracted driving a growing problem. WRC-TV Washington (4/26, Wilkins) reported on its website, “New statistics from the NTSB show just how big of a problem distracted driving in work zones really is in the Washington region.” A new survey released “by Transurban-Fluor, in partnership with AAA Mid-Atlantic, shows that 40 percent of drivers in work zones use their cell phones.” NTSB Chairman Deborah Hersman commented, “NTSB issued a recommendation last December recommending to states that they ban talking or texting on the phone while behind a wheel, except for emergency situations.”
The Washington Post (4/26, Halsey) reports, “With miles of highway construction underway in Northern Virginia, the region’s police officers say work-zone accidents have increased dramatically because drivers are using mobile devices to talk or text.” A new survey by AAA and Transurban “of 409 police officers who patrol Northern Virginia’s roadways, found that cellphone use was to blame in one in three work-zone accidents.” Approximately “80 percent said banning cellphone use behind the wheel would dramatically reduce road accidents.” The article also notes last year’s recommended ban on all cellphone use while driving from the NTSB.
In a recent decision from the Tennessee Workers Compensation Panel, Keith v. Western Express (2/16/12) , a truck driver who says he was ordered to deliver a load in California by a certain time was denied workers compensation benefits because he violated Federal Motor Carrier Safety Regulations governing hours-of-service while trying to get there on time. He apparently went to sleep at the wheel and wrecked his truck in New Mexico. The driver presented the case as an example of damned if you do and damned if you don’t. The driver felt that he would have been fired or disciplined for being late. But, it was clearly impossible for him to have made the delivery deadline and not violated the hours-of-service rules. When the wreck occurred, he had driven over 36 hours without a 10 hour break, according to the on-board Qualcomm system.
There is no excuse for a truck driver falling asleep at the wheel of a loaded tractor-trailer, and now Tennessee may deny workers compensation benefits to drivers who are injured while violating Federal Motor Carrier Regulations, provided there is a causal connection between the violation and the injury.
On March 1, 2012, a Hamilton County jury returned a verdict of $40,651.78 in Circuit Court in favor of Plaintiffs, Phyllis and Rick Bradley. Phyllis had been struck in the head by a falling stroller at the Toys R Us store on Highway 153 in Chattanooga on September 2, 2008. Toy R Us admitted liablity but contested the nature and extent of injury. She suffered from head pain and burning on her head, with electrical like zaps. The medical term for these conditions is posttraumatic injury to the nerve, scalp region which is resulting in the abnormal dysesthesias, paresthesias, with characteristics of complex regional pain syndrome, according to Dr. David Rankine. Hu Hamilton and Patrick Cruise represented the Plaintiffs in Phyllis A. Bradley and Richard Bradley v. Toys “R” Us – Delaware, Inc. 09C957.
The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Mandatory drug testing is required for five specific categories of drugs (referred to as the SAMHSA 5, previously called the NIDA-5):
1. Cannabinoids (marijuana, hash)
2. Cocaine (cocaine, crack, benzoylecognine)
3. Amphetamines (amphetamines, methamphetamines, speed)
4. Opiates (heroin, opium, codeine, morphine)
5. Phencyclidine (PCP)
There is an emerging trend with some of the more safety orriented trucking companies like JB Hunt, Schneider, C.R. England, Roehl Transport, Gordon Trucking, that have replaced the DOT required urine test with the radioimmuneassay of hair (RIAH) test, commonly known as hair testing.
Hair testing is more expensive, so why are some companies using it? Hair testing reveals 12 times more positive tests, or failures, than urine testing. Experts report that illegal drugs can be detected in hair for upwards of 90 days. Not only does hair testing give a longer window of detection, detecting drug users who abstain for a short period of time, but there is an inability to tamper with the test, unlike mandatory urine testing. Currently, there are no known adulterants for hair tests. Since hair tests analyze the drugs inside the hairshaft, external contaminants/chemicals have no effect.
The small percentage of carriers utilizing hair testing are more readily and accurately identifying illegal drug users. In the long run, they are probably saving millions of dollars and keeping drug users out of their trucks, thereby reducing the number of catastrophic wrecks on our highways.
TCA 50-6-204(g)(2)(B) allows a Department of Labor Specialist to award attorney fees on post-settlement/judgment medical issues under the Tennessee Workers’ Compensation Act. Last month, the Davidson County Chancery Court found that judicial review of such awards, provided for by TCA 50-6-204(g)(2)(D)(ii), violates Due Process, and is therefore void. The ramification of this decision is to essentially strip the Department of Labor of the ability to dispose of post-settlement/judgment medical issues in workers’ compensation cases. Workers’ compensation practitioners would be wise to avoid using the TNDOL process to handle post-settlement/judgment medical issues.
Quite often, a major issue in workers’ compensation cases is causation. A good example is the case of Bright v. Shoun Trucking Co., where the truck driver claimed injuries to his shoulders and wrists as the result of the upper extremity position requirements of driving a tractor trailer. In the Bright case, the trial court ruled in favor of the employee, and the ruling was affirmed on appeal.
So called “idiopathic” injuries can be problematic in the workers’ compensation context. For example, in Veller v. Wackenhut Services, Inc., a workers’ compensation panel denied coverage for an employee who suffered a knee injury while standing and reaching for paperwork located on a shelf near his work station. If you are hurt on the job, you may encounter a denial of your claim based upon the “idiopathic” injury defense. It is important to contact an attorney to ensure that your rights are protected.
Over the next few weeks, we will provide a short summary of the some of the important Tennessee workers’ compensation cases that were issued last year. We will begin with a Tennessee Supreme Court case addressing “scope” of employment. In Dixon v. Travelers Indemnity Col, 336 S.W.3d 532 (Tenn. 2011), the employee was a truck driver that was injured as the result of a tornado. The Court held the injuries sustained as a result of the tornado were compensable because his job as a truck driver placed him at a higher risk of injury from a tornado than the general public.
The Hamilton Firm routinely represents injured truck drivers, with extensive experience representing employees of Covenant Transport and US Xpress. If you are a truck driver and have been injured on the job, feel free to contact our office.
In Deso v. Astrue, 2011 U.S. Dist. Lexis 137646 (D.Vt. Nov. 29, 2011), the district court held that “it was legal error for the ALJ to base his negative credibility determination primarily on failure to stop smoking. . . .” The District Court relied upon a 7th Circuit decision in stating: “This is an unreliable basis on which to rest a credibility determination.”
If you are disabled due to COPD and you would like to talk to a Georgia and/or Tennessee Disability Lawyer, contact Patrick Cruise at The Hamilton Firm.