Tag Archives: accident

An Overlooked Risk in Workers’ Comp

Sleep deprivation is an issue that is often overlooked, yet frequently the cause of decreased productivity, accidents, incidents and mistakes that cost companies billions of dollars each year, reports Circadian, a global leader in providing 24/7 workforce performance and safety solutions for businesses that operate around the clock.

Often, the experts at Circadian say, employers are unaware of the impact fatigue or sleep deprivation is having on their operation until a tragic accident occurs. Only then do managers ask the question: “What happened?”

Sleep deprivation is much more dangerous than you might realize. It’s not just annoying, like when an employee snoozes in a meeting or yawns during a conversation. Here are 10 real dangers associated with the overlooked problems in a sleep-deprived workforce:

  1. Decreased communication: When workers are tired, they become poor communicators. In one study, researchers noted that sleep-deprived individuals drop the intensity of their voices; pause for long intervals without apparent reason; enunciate very poorly or mumble instructions inaudibly; mispronounce, slur or run words together; and repeat themselves or lose their place in a sentence sequence.
  2. Performance deteriorates: Performance declines frequently include increased compensatory efforts on activities, decreased vigilance and slower response time. The average functional level of any sleep-deprived individual is comparable to the 9th percentile of non-sleep-deprived individuals. Workers must notice these performance declines, right? Not quite. In fact, sleep-deprived individuals have poor insight into their performance deficits. Also, the performance deficits worsen as time on task increases.
  3. Increased risk of becoming distracted: Sleep-deprived individuals have been shown to have trouble with maintaining focus on relevant cues, developing and updating strategies, keeping track of events and maintaining interest in outcomes and, instead, attend to activities judged to be non-essential. In fact, research suggests that there is a symbiotic relationship between sleep deprivation and attention-deficit hyperactivity disorder (ADHD) because of the overlap in symptoms.
  4. Driving impairments: Because of federal regulations, the trucking industry is well aware of the driving impairments associated with sleep deprivation. However, plant managers are unaware of the ways in which sleep-deprived workers may be dangerously operating machinery (e.g. forklifts or dump trucks). In fact, 22 hours of sleep deprivation results in neurobehavioral performance impairments that are comparable to a 0.08% blood alcohol level (legally drunk in the U.S.).
  5. Increased number of errors: The cognitive detriments of sleep deprivation increase concurrently with a worker’s time on a given task, resulting in an increased number of errors. These errors include mistakes of both commission (i.e., performing an act that leads to harm) and omission (i.e., not performing an expected task), which can wreak havoc at any work facility. Errors especially are likely in subject-paced tasks in which cognitive slowing occurs and with tasks that are time-sensitive, which cause increases in cognitive errors.
  6. Poor cognitive assimilation and memory: Short-term and working memory declines are associated with sleep deprivation and result in a decreased ability to develop and update strategies based on new information, along with the ability to remember the temporal sequence of events.
  7. Inappropriate moodines: Inappropriate, mood-related behavior often occurs in outbursts, as most sleep-deprived individuals are often quiet and socially withdrawn. However, a single one of these outbursts can be enough to destroy the positive culture of a work environment and cause an HR nightmare. These behavioral outbursts can include irritability, impatience, childish humor, lack of regard for normal social conventions, inappropriate interpersonal behaviors and unwillingness to engage in forward planning.
  8. Greater risk-taking behavior: Brain imaging studies have shown that sleep deprivation was associated with increased activation of brain regions related to risky decision making, while areas that control rationale and logical thinking show lower levels of activation. In fact, sleep deprivation increases one’s expectation of gains while diminishing the implications of losses. What does this mean for your workers? Sleep-deprived workers may be making riskier decisions, ignoring the potential negative implications and taking gambles in scenarios in which the losses outweigh the benefits.
  9. Inability to make necessary adjustments: Flexible thinking, preservation on thoughts and actions, updating strategies based on new information, ability to think divergently and innovation are all hurt by sleep deprivation. A worker may be unable to fill a leadership role on request when sleep-deprived, resulting in a frustrated management team.
  10. Effects of sleep deprivation compound across nights: Four or more nights of partial sleep deprivation containing less than seven hours of sleep per night can be equivalent to a total night of sleep deprivation. A single night of total sleep deprivation can affect your functioning for as long as two weeks. To your brain, sleep is money, and the brain is the best accountant.

According to Circadian, when you have sleep-deprived or fatigued workers, productivity levels and quality of work will be compromised. Furthermore, you create an environment where it becomes not a matter of if your workplace will have an accident or incident but a matter of when, and to what magnitude.

Sleep deprivation is no laughing matter, no matter how frequently our society treats the issue light-heartedly. Eventually, our biological drive to compensate for sleep deprivation wins, and the loser might be your workers, your employer or even you.

The expectation is that employees return to work in January feeling recharged and ready to perform their best. In reality, one in every five workers is sleep-deprived, and those who sleep poorly are 54% more likely to experience stress in their job, according to a new study from international employee health and performance organization Global Corporate Challenge (GCC).

The report, “Waking Up To the Sleep Problem Every Employer Is Facing,” also found that 93% of poor sleepers were more likely to display workplace fatigue, a common symptom of excessive daytime sleepiness (EDS) – the condition proven to increase risks of absenteeism, accidents and injury in the workplace.

“Independent research undertaken on GCC participants in the 2014 challenge demonstrates that sleep improves with increased step count in a linear fashion,” said Dr. David Batman, director of research, FCDP. “There are significant increases in productivity and reduction in fatigue and stress levels at work and home. Extrapolation of these results leads to an obvious conclusion that simple exercise improves sleep, and the combined result will be an increase in personal and business performance.”

The results come from the health and performance leaders’ first series of GCC Insights papers, based on aggregate data drawn from employees in 185 countries. With more than 1.5 million people having now been through the program, the data sample is one of the largest, most diverse of its kind.

This GCC Insights paper also provides practical recommendations for employers who recognize that their workers’ mental and physical health inextricably is linked to business success – a realization that, for many, signals a need to rethink outdated well-being strategies in exchange for a longer-term commitment to employee health.

“The cost of poor sleep habits among employee populations has been grossly underestimated; it is having profound consequences for productivity and health,” said Glenn Riseley, founder and president at the GCC. “Luckily, enlightened employers are now changing their cultures so that sleep is no longer seen as a luxury but as a priority.”

Now Come Autonomous Trucks

In 2012, nearly 40,000 people were killed on U.S. roads, and 90% of those fatalities were caused by driver error.

Imagine an advanced autonomous system that could avoid those deadly motor vehicle accidents. Even a system that works only on the highway — where the technology has already been developed and where trucks spend the majority of their time — can make a significant difference.

A new report has analyzed the impact of driverless cars on the incidence of fatal traffic accidents and concluded that, by removing human emotions and errors from the equation, we could reduce deaths on the road by 90%. That’s almost 300,000 lives saved each decade in the U.S., and a saving of $190 billion each year in healthcare costs associated with accidents. If you expand this to global figures, driverless cars are set to save 10 million lives per decade.

There are now some trucks on the road that begin to fulfill that promise. Daimler Trucks North America’s “Inspiration” freightliner semi-truck this year became the first legally operated autonomous commercial vehicle operating on U.S. highways.

For now, the Inspiration is basically a limited take on the autonomous truck. The driverless system engages when the truck is on the highway and ramps up speed. It then maintains a safe distance from other vehicles and stays in its own lane.

If the autonomous truck encounters a circumstance it can’t handle (e.g., heavy snow or washed-out lane lines) it will alert the human driver that it’s time for him to take over. But what this technology can do is reduce traffic accidents, and that’s why I’m pretty excited about the whole thing.

A human driver has limited situational awareness. Autonomous trucks offer an extra set of eyes that continuously monitor a broad range of sensors (e.g., visible and infrared light and acoustic, including ultrasound), both passive and active, with a nearly 360-degree field of view.

Therefore, driverless vehicles can more quickly determine a safe reaction to potential hazards and initiate reactions faster than a human driver. For example, traffic collisions caused by human driver errors such as tailgatingrubbernecking and other forms of distracted or aggressive driving would be eliminated.

Safer and more efficient driving is the motivating force behind this emerging technology. It’s not about catching 40 winks on the highway or watching an episode of your favorite show. As cool as that might be to imagine, no one is replacing the human as the ultimate decision-maker.

Telematics: Because Accidents Happen

As I researched recent developments in the telematics space, I thought of the wise words of an unknown car driver: “The worst fault of a car driver is his belief that he has none.” Whenever I speak to a group on telematics, I ask the audience, “Who considers themselves to be a better than average driver?” Every time, at least 80-90% of the hands go up.

Even if we are all close to perfect drivers, accidents will still happen. And telematics data can be used to help identify who is at fault.

Claims handling might be the new frontier for telematics, in general; beyond the early adopters of telematics-based pricing, many insurers have run pilots and proofs of concept with telematics in areas such as product development, underwriting, new business and market segmentation. They have gathered insights and developed telematics-based solutions for the broader market, often with the support of increasingly sophisticated telematics solution providers in technology or data and analytics. In fact, the SMA 2015 report, “The Changing Auto Insurance Landscape: Influencers Driving Disruption and Change,” revealed that, since its introduction to the market in 2010, telematics has come to be recognized as a maturing rather than emerging technology and often gets incorporated into connected car initiatives. The study also discussed how the industry is starting to investigate even newer technologies that might affect the auto insurance market, such as shared transportation and the autonomous vehicle.

However, it would be a mistake to move on to newer technologies and initiatives without further considering investments in telematics, especially when the full business value of telematics offerings may not have been reached yet.

Right now, particularly in personal lines, telematics is used primarily for market segmentation, product and underwriting purposes. There is a growing appreciation, though, of the value of telematics in claims handling beyond accident avoidance and driver education. For example, at a recent LexisNexis/Wunelli insurance event, it was demonstrated that telematics can play a key role in claims investigations by helping to determine which party is at fault – not always a clear-cut matter. In the specific accident discussed, two cars hit each other in the parking lot of a supermarket. The physical damage did not give a clear picture of who was at fault, and the drivers disagreed in their statements about what actually happened. One of the cars involved, however, was equipped with a telematics device. At the request of the driver of this car, the insurance carrier was able to analyze the data on the location and speed of her car immediately preceding this accident. This analysis made it abundantly clear that the driver of the telematics-equipped car could not have been at fault, which provided the insurer with proof to settle the claim accordingly.

I found it even more shocking that it was the insured driver who actually had to point out to her insurer that telematics data was available and that access to that data could be of great help in handling this claim. It was obviously not standard procedure for this specific carrier to look at telematics data in the claims handling process – and in this case, without the driver’s suggestion, the opportunity would have been missed.

Unfortunately, I don’t believe that this carrier is unique. I would urge personal lines carriers, in particular, to consider the uses and applicability of telematics data outside of the market segmentation, product and underwriting functions. We can all learn from examples like this one, as well as from the commercial lines telematics applications for risk management and claims handling.

Because we all know that, even though we drive better than the average driver, accidents still do happen.

66 Red Flags in Work Comp Claims

This article started as another “Top Ten” list, but I quickly realized that, when looking for potential fraud or compensability issues in a workers’ compensation claim, there are many more than 10 red flags – I came up with 66. You can probably think of more. Please add them in the comments.

The following is a loosely organized list of red flags signaling potential fraud or abuse by a workers’ compensation claimant. Keep in mind that even if the claim has all of these red flags, this does not necessarily mean the claimant is committing fraud or that you have grounds to deny compensability of a claim. However, the presence of some of these red flags should cause you to investigate further. Also note that I am using the term “fraud” broadly to include general wrongdoing on the part of the claimant and not specifically referring to a legal cause of action.

Here we go:

  1. Late reporting – If an employee is really injured on the job, it is unlikely the employee will wait days or weeks to report the injury.
  2. The details of the accident are sketchy.
  3. The employee has difficulty recalling what happened.
  4. The employee changes the description of the accident when inconsistencies are pointed out.
  5. The nature of the injury is not consistent with the nature of the work done by the employee.
  6. The date, time or location of the accident is unknown or forgotten.
  7. The details of the accident are inconsistent with the employee job duties.
  8. The accident occurs in an area where the injured employee would not normally be.
  9. Fellow workers hear rumors circulating that the accident was not legitimate.
  10. The employee gives completely different versions of the accident to the employer, the adjuster and the doctor.
  11. The employee keeps modifying the story of what happened.
  12. The employee leaves out pertinent information.
  13. The details of the accident vary from medical report to medical report.
  14. There are no witnesses to the accident, and the employee normally works around other people.
  15. There are witnesses, but their version of the accident differs from the employee’s.
  16. The nature of the injury is unusual for the employee’s line of work.
  17. The employee’s co-workers express doubt that the accident occurred.
  18. The employee is disgruntled about some aspect of his job.
  19. The employee was demoted or passed over for a promotion.
  20. The employee is on the list to be laid off.
  21. The employee is on “positive improvement needed” status and is about to be terminated.
  22. The employee has had numerous prior employers.
  23. The “accident” occurs immediately before a strike, plant closing or the end of seasonal employment.
  24. The employee is a new hire.
  25. The accident occurs near the end of probationary period.
  26. The claimant is a seasonal worker.
  27. The employee has an early Monday morning accident before the supervisor or other employees see him on the job (meaning the accident might have occurred off the job over the weekend).
  28. The injured employee is not at home during the normal workday.
  29. The employee is always sleeping when the adjuster calls or cannot be disturbed.
  30. The employee’s family member is vague or noncommittal about when you can reach the employee.
  31. The employee uses the address of friends or family members and has no definite address or uses a Post Office box as an address.
  32. The employee’s spouse is not working and is drawing workers’ comp indemnity benefits, Social Security disability payments, welfare or unemployment insurance, and the employee wants the same lifestyle.
  33. The employee inquires about a settlement early in the claim process.
  34. The employee was having financial problems.
  35. The employee is nearing retirement age.
  36. The employee files for benefits in a state other than where the accident occurred.
  37. The employee fails to report other work income while drawing indemnity benefits.
  38. The employee took excessive time off just before the injury.
  39. The employee is in the middle of a divorce or other family disturbance.
  40. The Social Security number used by the employee belongs to someone else.
  41. The employee applies for Social Security benefits before the injury occurs.
  42. Income from workers’ comp, disability or other sources exceeds the employees prior after-tax income.
  43. The employee protests about returning to work and never seems to improve.
  44. All the injuries are subjective – pain without trauma, soft-tissue, emotional.
  45. The employee changes doctors frequently (“doctor shopping”) or changes doctors when released to return to work.
  46. The employee has excessive treatment for soft-tissue injuries.
  47. The medical treatment reported by the employee is different from the medical care stated in the medical reports.
  48. The nature of the medical treatment changes from one body part to another after the employee has been treating for a while.
  49. The employee misses medical appointments.
  50. The employee fails to show up for an independent medical examination.
  51. The employee refuses or delays diagnostic testing.
  52. There are whiteouts, corrections or erasures on medical forms submitted by the employee.
  53. Pain is exaggerated.
  54. Invalid or inconsistent effort is reported on the functional capacity evaluation.
  55. The employee has a history of multiple workers’ comp claims or reporting subjective claims of injury.
  56. The injury relates to a preexisting medical condition or health problem.
  57. The length of recovery is excessive for the nature of the injury.
  58. The employee who has been off work for a while has calluses on hands or grime under the fingernails.
  59. The medical reports reflect “muscular,” “tanned” or other adjectives that reflect that the employee is in good health.
  60. The employee is unable to work because of the injury but is seen painting her house, mowing the lawn, carrying heavy objects, etc.
  61. The employee has a high-risk hobby or does other activities involving considerable physical exertion.
  62. Surveillance reflects physical activity greater than what is reflected in the medical reports.
  63. The employee is unusually pushy to settle the workers’ comp claim.
  64. The employee has extensive medical knowledge but no training in the medical field, or uses extensive insurance terminology but has no work experience in the insurance field.
  65. The employee is a part of a group of employees using the same doctor and the same attorney for their workers’ comp injuries.
  66. The attorney’s letter of representation is the same day of the injury or even dated before the “injury.”

Please share your experiences in the comments!

Disclaimer: The information in this article does not constitute legal advice, nor is it intended to create an attorney-client relationship. Every situation is unique, and I encourage you to seek legal advice from a licensed attorney for your particular situation.

The Insurance Implications of Social Networking Websites, Part 3

This is the third part of a six part series of articles discussing insurance coverage for claims that can be brought against individuals or companies because of the use of Social Media websites. Earlier articles in this series can be found here: Part 1 and Part 2. This article discusses coverages potentially triggered under Coverage A – Bodily Injury.

Bodily Injury Coverage
Even if the policy contains a personal injury coverage part (as discussed in part 2 of this series), analysis should still be made whether the policy provides coverage under the bodily injury coverage part. Oftentimes, this is dependent on the policy’s definition of “bodily injury” and “occurrence.”

Does The Defamatory Comment/Posting Made On A Blog/Website Constitute An Occurrence?
In order to trigger coverage under the policy’s insuring agreement there must be a defined “occurrence” that results in defined “bodily injury” during the policy period. Policies typically define “occurrence” as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” which results in bodily injury. Most jurisdictions hold that it is the insured’s standpoint that controls in determining whether there has been an “occurrence” that triggers the duty to defend under the policy. A majority of jurisdictions have held that an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.” A deliberate act, therefore, is not an accident.

If the defendant publishes an internet posting that referred to the plaintiff in a derogatory manner, e.g., accusing the person of being a pedophile, then this is a deliberate act which does not constitute an occurrence as defined by the policy. Stellar v. State Farm General Ins. Co., 157 Cal. App. 4th 1498, 69 Cal. Rptr.3d 350 (Cal. App. 2007). Some jurisdictions have held that the very nature of defamation precludes the conclusion that it can occur “accidentally.” See, e.g., Uhrich v. State Farm Fire & Cas. Co., 109 Cal.App.4th 598, 135 Cal.Rptr.2d 131 (Cal. App. 2003); Rogers v. Allstate Ins. Co., 938 So.2d 871, 876 (Miss. App. 2006); Iafallo v. Nationwide Mut. Fire Ins. Co., 299 A.D.2d 925, 926, 750 N.Y.S.2d 386, 388 (N.Y. App. Div. 2002). Some jurisdictions, however, recognize negligent defamation and, therefore, there may be an occurrence triggering coverage. Cincinnati Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d 742 (7th Cir. 2001); cf., Baumann v. Elliott, 704 N.W.2d 361 (Wis. App. 2005) (finding no occurrence because complaint did not allege a negligent defamation); Farmers Ins. Exchange v. Hallaway, 564 F.Supp.2d 1047 (D. Minn. 2008) (reversing summary judgment and holding that there may be personal injury coverage because underlying lawsuit alleged negligent defamation and intent to injure had not been decided).

There are, obviously, certain factual situations that may at first blush appear to be intentional, but, upon further, investigation, may constitute an occurrence triggering coverage. For example, an individual intends on posting a defamatory comment on Facebook, spends time typing out the comment, but later decides against posting the comment, but accidentally hits “share” rather than “cancel” and so the item is accidentally posted on Facebook against the user’s wishes. Although the individual may have originally intended to post a defamatory comment, at the moment the comment was indeed posted, the individual did not have that intention. This may constitute an “occurrence” triggering coverage.

Similarly, an individual may have intended to respond to a message on Facebook with defamatory or libelous remarks, but rather than clicking the “reply” button, the individually mistakenly clicked the “reply all” button and, consequently, the message is sent to everyone on the list, rather than just the individual that the user originally intended.

Another example includes attaching a video or picture to a social media website. The individual may have intended to attach file A, but when selecting the file, the individual selected file B, which contained a picture/video of a person in a compromising position such that the individual’s privacy is invaded.

These are a few examples where the claim or complaint may allege conduct that may at first blush appear intentional, but the true facts may reveal that coverage is triggered. Further investigation may be needed to determine coverage.

Does The Emotional Distress Or Other Alleged Damages Resulting From The Defamation Constitute Bodily Injury?
“Bodily injury” is typically defined in a policy as “bodily injury, sickness or disease sustained by a person, including required care, loss of service and death that results.” Courts have held that “bodily injury” encompasses only physical injury and its consequences and does not include emotional distress in the absence of physical injury. Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619 (1995); Nguyen v. State Farm Lloyds, Inc., 947 S.W.2d 320, 323 (Tex. Ct. App. 1997); Wiard v. State Farm Mutual Auto Ins. Co., 132 N.M. 470, 50 P.3d 565 (N.M. Ct. App. 2000). Thus, pure emotional distress does not constitute “bodily injury” for purposes of a policy unless there is specific policy language providing coverage for pure emotional injuries.

Because most social media claims do not involve direct physical contact, there is generally no “bodily injury” triggering coverage in the traditional sense. However, physical manifestations of emotional distress may be covered by the policy even if there was no direct physical contact with the claimant. This may include loss of hair, loss of weight, exacerbation of existing illnesses like Crohn’s disease, etc. If the claimant alleges such physical manifestations resulting from social media torts, then there may be qualifying “bodily injury” as defined by the policy.

Hopefully, this article makes the reader aware that social media torts may not only trigger coverage under the typical personal and advertising injury provided under Coverage B of the policy, if available, but that such social media torts may also trigger “bodily injury” coverage under Coverage A, depending on the particular factual circumstances.