Langham: My Workers' Comp Accident

Tuesday, May 30, 2017 | 0

This story starts late in the afternoon in southern Michigan, a million years ago.

Judge David Langham

I was driving a delivery truck, 12 to 14 hours per day, around northern Indiana, Ohio, southern Michigan and Illinois. The payload was always ice, but the description often varied (8- and 20-pound bags, and blocks of up to 100 pounds). Many of the blocks were delivered to Amish families that utilized iceboxes to store their food.

That afternoon, I was driving north on a gravel county road, which dead-ended in a "T." When I engaged the air brakes, I was surprised by the spongy response. Unlike a regular automobile, these trucks have air brakes. They also do not have a mechanical braking system (emergency brake effectuated with a cable). This vehicle instead had a parking brake, which operated off of the same air system as the pedal brakes.

If you are driving your car, and the brakes (which in most vehicles are hydraulic) are not as responsive as you need, you can use the emergency brake, but should do so cautiously (engaging it slowly to avoid skidding). With no such mechanical brake alternative, I lacked that option that afternoon in Michigan.

I worked the gears, feathered the brakes and eventually brought the vehicle to a safe stop. The truck was a "cab-over" (the driver sits on top of the front wheels), and I came to rest with my tires barely on the pavement of the crossroad, and the cab hanging out over a farmer's drainage ditch. It is fair to say that this was disconcerting.

There were no cellphones back then. I lacked ready access to communication. I backed out of my predicament, and rolled slowly down the county road to the next opportunity to pull off. At the side of a cornfield, I opened both back doors wide and allowed my load to begin melting.

I climbed the side of the cab and turned off the refrigeration unit. My best logic told me that the lighter the vehicle was, the more effective my dysfunctional brakes would be. I quickly realized ice melts slowly, so I climbed into the truck, and began breaking bags across the rear threshold. Soon, the truck contained only empty bags, and on the ground was a mountain of ice.

Empty, I proceeded at 15-20 miles an hour to the nearest crossroads, found a pay phone (millennials, in the old days we old fogeys put coins into a box, called a pay phone, found at gas stations and other stores, and the box allowed us to communicate with others over a system of wires strung on poles, which we colloquially called "phone poles"). I called the depot and reported my predicament. The ultimate decision was to limp to a local repair shop, which happened to be closer to me than the depot.

A long couple of hours later (at less than 20 miles an hour), punctuated by car horns and a few imaginative hand gestures, I pulled into the dealership lot. I was happy to see another ice company rig just across the street, idling. The dispatcher had managed to track another driver, stop-by-stop, and I had a ride home.

That is likewise an archaic point. The dispatcher had to call store after store asking, "Has our driver been there today?" and asking them to have the driver call the depot when she/he arrived. Cellphones have certainly changed the world.

I worked the next morning, and several days thereafter, driving a substitute truck. There is nothing wrong with loner vehicles, but there is comfort in familiarity. I was therefore pleased at about 4 o'clock on Saturday morning to find my usual rig back at the depot, loaded, and awaiting a long day.

It may be important to the story to realize that the truck had been retrieved from the dealership empty. It had been driven to the depot empty, loaded at the dock, and driven less than 200 yards to a storage area at which the refrigeration unit could be plugged in. The rig had not been road-tested with a load.

I rolled down the depot driveway, barely pausing at the highway in the predawn light. A rolling right turn brought me northbound, and I continued a series of gear-driving and rolling turns out through the countryside with no traffic. I was making for a main highway, not by the most traveled roads, but by the quickest route (side roads). That time of day I shared the roads only with the occasional raccoon or possum.

About 8 miles out from the depot, I encountered my first long stretch of straight highway and accelerated. These trucks were not built for speed, and best-case could maintain almost 60 mph. I entered a low land, shrouded in fog, and anticipated my next turn. It was a familiar route I drove habitually.

I broke from the fog bank about 100 yards from a T-intersection. At that speed, it should have required 150 to 180 feet to stop. However, when my foot went to the brake, my perception was that nothing happened. A state trooper would later tell me that the left rear wheel of the truck did engage, and in fact locked for a distance of approximately 30 feet before the skid marks abruptly stopped. He found it curious that none of the other tires left any evidence of engaging.

So the vehicle failed to decelerate. In the seconds I had to comprehend the situation, there was little I could do. I rolled through the T-intersection, struck a telephone pole guy wire, ripped the phone pole in half (again, telephone signals used to run through those wires strung on these poles), struck an arrow sign (to direct that traffic to turn left or right), and my left front bumper struck a large tree. Things become a little bit foggy at that point in the story.  

When I regained consciousness, there was no windshield on the truck, and it was on its side. There was a great deal of dust, and I was contending with a significant headache. I stepped out of the truck through the windshield, onto a table. I realized that the truck had pivoted on the large tree and spun top-first into the living room of the small house behind it.

Unable to exit through the hole in which the large truck was lodged, I stepped to the front door of the home, and exited onto the porch. Framed in a large-pane window of the porch was the face of the homeowner. Startled from her bed that pre-dawn Saturday morning, peering through the glass, she had but one inquiry: "Is anybody dead?" Later, I would find humor in this matter-of-fact inquiry. But at the time it seemed a perfectly logical question. The fortunate answer was "no."

I asked this lady for a telephone. However, I found myself unable to make a call (did you forget the part about the telephone pole I hit? I did momentarily). A short walk to a neighbor provided access to a phone. The company dispatcher sent a truck and crew, and the vast majority of ice had been rescued, re-stacked, and sent down the highway for alternative delivery before the first police even arrived on the scene. In the middle of the countryside, response times are not what city dwellers have perhaps come to expect.

Though I proclaimed my fitness, the company owner insisted that I and my helper be transported to the nearest hospital for evaluation. I have a vague recollection of him insisting to me that "that's the law." Whether that's true or not, in retrospect I have often believed that this hospital trip had something to do with workers' compensation insurance. But I believe it was kind of my employer to insist on a trip to the hospital (his wife drove us).

A sign of returning sensibility occurred when we walked into the emergency room. Remember, we had driven through walls and were covered in dust and insulation. I wish today someone had photographed us (yes, there were no cellphones, and to take a picture you had to remember to bring an actual camera).

At the registration desk, a young lady in a pink and white striped outfit (back in the day these volunteers were called "candy stripers") asked us, aghast, "What happened to you?" My helper, being more coherent, replied, "We hit a house."

The young volunteer gasped, "Oh my God, where?" My infinitely more humorous helper replied, deadpan, "In the living room." He and I found this hilarious, but no one else in the ER laughed.

There were stitches and Band-Aids. As I recall, there were X-rays and other testing. A bottle of pills was provided, with instructions for monitoring and follow-up. And I was forbidden from returning to work "until cleared by a physician."

At the first opportunity, approximately four days later, I obtained the coveted medical release and returned to the depot, checked out a different rig and resumed my routes. I never saw a doctor again for that accident, never received any indemnity benefits, was never assigned an impairment.

I recall an episode of the situation comedy "Night Court" some years later (season 6, episode 6). In it, Judge Stone listens intently as a man describes his near-death experience in fantastic detail. When he concludes, Judge Stone says something like, "You must be the luckiest man alive!" The litigant replies, deadpan, "No, Dan Quayle is" (you gotta have a few miles on the odometer to find that one funny, but it is funny).

Lucky? I have to admit that I have had my share of luck and more, a great deal of it that Saturday morning.

The last I knew, that destroyed truck was at the depot where it had been towed that Saturday. I was told that there was some degree of legal wrangling over possession of the vehicle. It seems that the manufacturer, the dealership and the owner were engaged in some serious litigation regarding why that vehicle failed to stop that Saturday morning. Each thought that they were the best choice to store the truck. As I later learned in law school, preservation of evidence can be an important issue.

I suffered no lasting effects (watch the wise-cracks there). There was no impairment assigned, no surgery, no ongoing care. But I suffered a workers' compensation injury one day many years ago on a lonely highway in northern Indiana.

This experience came back to me at a conference in 2016 where there was a spirited discussion about workers' compensation. A participant addressed the group and asked the simple question, "How many at this table have had a workers' compensation accident?" It was troubling to see only a few hands go up. It took me a few seconds to add mine to the company; my accident was long ago, in a galaxy far away, and I have not had to live with any residual effects. It had, frankly, faded from my thoughts and took a moment to return.

I have been fortunate in many ways. I have held more than 25 jobs in my career, and overall have been fortunate to avoid serious injury. I have been hurt at work on several occasions (cuts, burns, abrasions, contusions), but the truck accident was my only workers' compensation hospital trip. More importantly, an accident of that magnitude could have easily resulted in fatality or serious injury, and yet everyone (driver, helper, homeowner) somehow walked away. But the experience is important.

As there is discussion of workers' compensation reform across America, the voice of the injured worker must be heard. Likewise, the voice of employers who have firsthand experience with injured workers must be heard.

The world of workers' compensation is full of so-called experts. They have read the books, run the numbers, watched the game but have never been on the field. They can tell you what the studies say, and regurgitate the things they've heard from others and memorized, but they lack first-and experience.

While they may have empathy and intellect, they lack experience. I have listened to many over the years, puffed full of their conclusions and perspectives. They have not written a paycheck, met a shipping deadline, handled the lunch rush or otherwise lived through the reality of the workday that so many endure and conquer out there every day. They are observers. Smart, perhaps, well-meaning, perhaps, but observers nonetheless.

I'm not saying that the lawyers, actuaries, doctors, risk managers and adjusters lack perspective. I am merely suggesting that the people who have run businesses where injuries occur, and the people who have actually been hurt, deserve a place at the table. They, too, have a perspective.

It is not that their perspective is necessarily better than anyone else's. It is not that their anecdotal experience is more valuable than the so-called experts. But I am convinced that their perspective is just as important as the rest.

And there is likely merit in looking for experience in those others who claim expertise. If it is a doctor, it should be a doctor who has treated injured workers. Insurance experts should be those who have adjusted or managed cases. Attorneys should be those who have actually represented parties in litigated disputes.

There is a perhaps place at the table for those who have only read about it all in books and studies, but there should be far more seats at the table for those who have lived American workers' compensation hands-on.

Experience is a teacher, sometimes a very hard and unsympathetic teacher. And those who have lived the life, stumbled and recovered, have perspective in the real world that we sorely need.

My little accident pales in comparison to so many I have worked on since. I cannot speak to the challenges of surgery, therapy, chronic pain, dysfunction and a whole litany of challenges (but I feel I barely missed that). But I have investigated, litigated, mediated and adjudicated my fair share. With my experience, what I know for sure is that I do not know it all.

Those who have suffered serious injury, those who have worked with those who have suffered serious injury, should be listened to in the debate about the future of comp.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.