Distracted Driving in Workers’ Compensation

Bruce Burke

Sarasota, FL (WorkersCompensation.com) – With more and more people getting smart phones, texting and driving is increasing the already dangerous highways in the country. Some refer to this as distracted driving or the use of a cellphone while driving. As a result, the pocketbooks of employers and insurance companies have been taking a hit from these cell phone-caused motor vehicle accidents.

However, there are some things that employers can do to decrease these dangerous activities. There are many kinds of employees for whom driving is the primary activity such as truck drivers. Employers in organizations like these should have policies with respect to the use of cell phone devices while in the course and scope of employment. In this day and age, these policies also have to cover the many Bluetooth devices that go along with cell phones such as ear phones, speakers, etc. Being able to hear the noise of traffic is crucial to being an alert driver. With smart phones, it is not enough that workers simply are not allowed to touch their phones. Both Android and IPhone devices have notifications that pop up all day, drawing our attention away from what we are doing. So the policy has to cover both the physical handling of the phone, using Bluetooth devices to interact with the phone, and viewing the screen of the phone.

But what if these employees do not follow these procedures to avoid distracted driving? That may put the employer/carrier in a position to deny the claim. In many states, misconduct can be a defense to the payment of benefits under the claim. Another version of the same defense is that the loss of earnings is not due to the employment when it comes to the requirement that the loss of earnings arise out of the employment. To establish this defense, the employer/carrier may have to demonstrate that the claimant was using the phone during the course and scope of employment. These requirements are not only legal but encouraged under public policy because it encourages safer driving for everyone on the road.

However, there are some possible evidentiary issues at play when you try to prove the content of what’s on a cell phone. It may not be a shock to believe that claimants may seek to delete text messages from their phones or deny their existence. In many cases, there may not be witnesses of the actual texting or handling of the phone other than the claimant. There are two ways to get around this issue. One would be to subpoena that claimant’s phone records. This is not the average type of records that usually come into play in workers’ compensation. You may see these kinds of records being subpoenaed in civil litigation or criminal cases. Many phone companies are resistant to providing records. Then, even when you get the records, you may be only getting metadata and not the actual content of the conversations. If we are talking about the use of data or applications, a subpoena may need to go to the company who makes the application or the company who made the phone. The only other option would be subpoena the person whom the claimant was commuting with and ask them whether they were contacting the claimant around the time of the accident.

The last relevant part of this relates to how distracted driving affects subrogation claims. Workers’ compensation carriers may be entitled to offset benefits based on recovery they will receive from possible negligent 3rd parties involved in the motor vehicle accident. However, in cases involving distracted driving, there will likely be other parities seeking to prove that the claimant was negligent at the time of the accident. In this case, defense counsel should coordinate with the attorneys of the carriers involved in the accident and participate in discovery for the civil case to obtain information that would be helpful on the workers’ compensation side.

More and more states are trying to criminalize the use of cell phones while driving. Hopefully, companies that make cars and phones, along with authorities will figure out a solution to make our roads safer.

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