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Bus and Motor Coach Library

Employee Injuries and Workers' Compensation Claims
These can be major factors in operating a transportation business.

Author - Tom Frenkel (2003)

Employee injuries and workers' compensation claims can be major factors in operating a transportation business. My law firm, alone, has five attorneys whose time is dedicated to defending employers against questionable claims of employee injuries, or the questionable nature and extent of those injuries. In this issue we'll briefly discuss the legal systems which typically govern employee injury claims, then we'll look at a recent case where an appellate court held a transportation company responsible to pay benefits to a driver after he suffered a stroke in his stopped vehicle. In that case the employer claimed that the driver's stroke was not work-related, but rather the result of his general physical condition. Evidence was introduced that the driver kept two sets of log books in order to hide his duty hour violations. The court held that the stress of driving in excess of the federal regulations and his keeping two sets of logs to conceal that fact were enough to support that his stroke was work-related.

Workers' compensation statutes and regulations address the rights and duties of employees and employers, alike, when someone suffers a work-related injury. These legal provisions are generally creatures of state law. (There are a few exceptions to this general rule; for instance, injuries suffered by railroad workers and mariners are addressed under federal laws which are specific to those professions.) Under workers' compensation provisions an injured employee typically receives employer-paid medical care, as well as compensation for temporary and/or permanent disability. Death benefits are also typically available to a deceased employee's dependents, if that employee's death resulted from a work-related injury.

In a typical state setting, an enabling statute will be passed into law, which provides for the creation of, and budgeting for, a state agency which will address work-related injuries. That agency will create and enforce its rules and regulations. It will also provide the primary forums for dispute resolution when injured workers and their employers disagree as to the propriety or level of benefits due to an injured worker. Such an agency has powers which effectively mirror those of our state and federal governments.

The process of rulemaking is similar to the work of our legislative branch; enforcement is similar to our executive branch; administrative hearings and reviews are similar to the courts and appellate courts of our judiciary. If the actions or findings of such an administrative agency are contested, and all avenues of review by that agency are exhausted, then the dispute can be brought to our civil courts for review. Courts typically offer great deference to the administrative agency's findings. The agency's proceedings are, after all, where evidence is offered, where witnesses' credibility can be assessed, and where both sides have the ability to "make their case."

Workers' compensation provisions are typically drafted and interpreted to "protect" an employee's interests from an overbearing employer. One Pennsylvania court put it like this: "The purpose of [the Workers' Compensation Act] is to provide financial protection to employees injured in the course of their employment by requiring the employer to compensate an injured employee regardless of fault . . .[the Act] included numerous provisions designed to prevent the employer from exercising [its superior bargaining power] to deprive employees of the benefits which this legislation was intended to provide." As a result of this apparent presumption that employers have superior power, officials in workers compensation proceedings seem to bend over backward to justify employees' claims.

In a recent Missouri case, a 51 year old "over-the-road" truck driver suffered a stroke while he was in the cab of his parked truck. The stroke left him paralyzed. He filed a workers' compensation claim which asserted that the stress of his employer's "demanding over-the-road truck-driving schedule" was the cause of his stroke.

At the agency's "trial level" hearing, he sought to show the administrative law judge (ALJ) that he was driving more hours than the Dept. of Transportation (DOT) regulations allow, and that he kept two sets of logs to conceal those DOT violations. He requested that his employer produce certain records which would indicate the number of hours and miles he drove, as well as his rest periods. Those records included "drivers logs, telephone logs, payroll records, and freight bills." The employer produced many documents, but not the telephone logs for approximately 2 years before the accident. The driver died of a vascular disease more than three years following the accident, and his estate continued the claim. The estate had a testifying expert who said that the stress of driving more hours than legally permitted and the guilt associated with keeping two sets of driver's logs were a substantial factor in the driver's stroke.

In its defense, the employer presented evidence that the driver had "several of the high-risk factors for a stroke, including age, gender, genetic predisposition, hypertension, cigarette smoking, alcohol abuse, infection, high cholesterol, and arterial disease." The employer's experts' opinions indicated that these factors caused the stroke, and that it was not work-related. The ALJ ruled for the employer and denied benefits to the driver's estate. The ALJ found that "even if [the estate] had proven that he was driving in excess of the allowed hours and mileage, lacked the requisite sleep and suffered from guilt . . . it is far more likely that . . . his pre-existing risk factors were the substantial factors in [his] stroke."

The decision was appealed to Missouri's Labor and Industrial Relations Commission, which reversed the ALJ's decision and awarded benefits to the estate. That Commission found the estate's medical expert to be credible when he opined that the stroke was stress-induced. That medical doctor acknowledged the pre-existing risk factors of smoking, age, gender, and atherosclerosis, but testified that there was not sufficient medical evidence of the driver's high cholesterol or long-term hypertension.   The Commission also made a legal finding that the employer's failure to produce the requested telephone logs entitled the estate to an "adverse inference" that those logs contained evidence in support of the estate's claims. This was after extensive cross-examination of an office employee who the Commission found to be evasive in her answers.

The Commission's opinion was appealed to the Court of Appeals of Missouri.

The Court of Appeals held that the adverse inference was improperly applied under Missouri law, but gave deference to the Commission's findings of fact. In affirming the Commission's award to the driver's estate, the appellate court held that the driver's "injury arose out of his employment because he was driving in excess of federal regulations and the resulting stress was a substantial factor in his stroke."

This case is certainly an example of an unforeseen consequence. Whether or not the driver's stroke was actually caused by his work schedule will likely never be known. Certainly, no one intended or foresaw the stroke of a 51-year-old driver. Yet, the legal consequence under these facts was considerable.

While the appellate record does not indicate the estate's award, such an award is typically calculated on a majority percentage (such as two-thirds) of a permanently disabled employee's average wages, for the remainder of his expected work-life. Sometimes the award is capped. In Illinois, for instance, that calculated award is limited to 20 years' compensation or $250,000, whichever is greater.

There is another unfortunate consequence for employers of drivers. It is possible that this Missouri Court of Appeals decision may be offered to support future claims, by drivers who have violated DOT regulations, of injury from stroke, heart attack, or other stress-related diseases.

In your day-to-day practice of risk management, remember that the safest route is to abide by the law. If you do not adhere to the rules, or if you encourage or support others' infractions, you risk "paying the piper" for both the foreseen and unforeseen consequences of those actions.

Thomas R. Frenkel is an attorney, licensed to practice in Illinois, Minnesota, and the District of Columbia.  Mr. Frenkel has a unique blend of legal and practical transportation and hospitality industry experience.  He is a past president of the National Tour Association (NTA), a past two-term board member of the Travel Industry Association of America (TIA), a founding member of the Hospitality Skills Standards Board (which was created under directive of the United States Department of Labor), and a member of the Transportation Lawyers Association.  Tom Frenkel was the Editor in Chief of the Southern Illinois University Law Journal.  He practices law from his office at Feirich/Mager/Green/Ryan, Attorneys at Law, a law firm which enjoys the highest ratings in both quality of legal service and quality of ethical standards by Martindale-Hubbell, an independent service which rates legal professionals.  Tom Frenkel may be contacted at FMGR, 2001 West Main Street, P.O. Box 1570, Carbondale, Illinois, USA, 62903-1570.  Phone: (618) 529-3000, email: tfrenkel@fmgr.com.  This magazine is proud to feature Mr. Frenkel's commentary, as a contributing writer.  This column is featured for the interest of our readers, but does not constitute legal advice; nor does any attorney-client relationship arise through its publication.