DETAIL OFFICER COLLECTS $120,000 BECAUSE CONTRACTOR CUT CORNERS, THEREBY EXPOSING OFFICER TO HARM

The pressure by employers to do too much work in too little time with too few crew on road work sites is a common cause contributing to police officers being injured by heavy equipment or passing vehicles while on detail at these sites. As a result of the pressure from superiors, the crew, in order to save time, cuts corners foregoing what they view as time-consuming safety procedures and work area protection protocols. In some cases there are too few crew assigned to correctly complete the task which calls for one crew member assisting and watching the job to make sure the crew, passers by, traffic and the detail officer do not come in contact with the heavy equipment being used at the site. Officers reading this article may recall that the same jobs that are now done by one lone employee was a two man job years ago.

Most police officers are not familiar with the safety procedures and work area protections required in the employing utility/contractors’ own employment manuals, nor the State and Federal requirements. The crew are supposed to know these procedures and the supervisors are supposed to enforce them. When an officer is hurt because these protections and protocols are not followed, the utility/construction company’s work continues. Another officer is requested to replace the one who was hurt. The employing company typically is not assessed the cost of the injured detail officer’s medical bills, lost wages and lost detail pay. Ironically, the employing company often blames the accident on the officer for being in the wrong place at the wrong time, while knowing the crew failed to follow the procedures which would have protected the officer from harm. While the crew returns to work and production schedules are met or exceeded, the injured officer often returns home disabled, loses weeks or months of valuable overtime and detail pay, may undergo surgery, and often suffers from disabling injuries. These injuries can even continue to be bothersome for years, because the officer, feeling the financial pressure to return to work, feigns to the Town doctor that he is fully recovered and ready to return to work, when that is not the case.

The civil system is designed to make up for the injured officers financial losses and to compensate him for his pain and suffering, as well as his future income losses if he cannot return to working his usual complement of overtime and detail shifts. The only ones who benefit from the officer foregoing his claim is the utility/contractor who caused the injury and that utility/contractor’s insurer. Many of these cases, once properly investigated and prepared, are resolved without resorting to filing court papers.

One such example is Officer Flag,¹ who was recently injured while directing traffic around a Gradall Hydraulic Excavator while it performed work on the side of the road. A hydraulic excavator, pictured in the accompanying photograph, is a large and wide mobile construction machine with a boom that has an excavating bucket or shovel attached to the end. The boom primarily telescopes in and out, and twists like human arm and wrist actions, allowing for delicate grading and sloping. The boom can also raise, lower, and swing from side to side and dig straight down for more intensive excavation work. As the boom rotates for side-to-side motion, the rear of the boom, attached to the counterbalance, causes the counterbalance to swing in the opposite direction. In this case, two officers were assigned to the Gradall crew while it smoothed over a 2 foot wide strip of lawns, for future re-seeding, under which new sewer pipes had been laid.

From time to time, the Gradall shovel would pick up loam from the dump truck directly in front of it, put it into this 2-foot-wide path to the left, and then level it off. At this point in the roadway there was one lane of travel in each direction. On this particular day, the officers were told that the crew was working through lunch so they could make an early Friday exit. To facilitate the crew working through lunch, the officers were told to stagger their lunch breaks. This left Officer Flag alone at the work site, when the other officer left for lunch.

Prior to the other officer leaving for lunch, the two officers positioned themselves at opposite ends of the work site. They worked together, alternately letting the two opposing lanes of traffic go by. Because of the size of the excavator (nine feet wide), the officers had to shut off traffic in the lane which was occupied by the Gradall. One of the officers stopped one lane of traffic and then the other officer allowed the opposing lane to go until that lane was stopped.

When Officer Flag was left alone on detail at the work site, his standing at one end of the work site would no longer work. It was necessary for him to walk back and forth past the center of the work site to attend to the two different lines of traffic and, at times, was positioned right in the center. This required Officer Flag to constantly be on the lookout in both directions, holding one line of traffic up while the other was allowed to pass: a more complex and dangerous task than when there are two officers at the work site. There was no person from the Gradall crew who was assigned to keep a lookout to make sure the Gradall was not maneuvered into Officer Flag’s path, pedestrians or passing motorists.

At approximately 1:00 p.m, Officer Flag, while alone and directing traffic in both directions, was near the middle of the road, parallel to the excavator, where he stopped traffic in one direction and directed the other to pass. According to the eyewitness, Officer Flag was in clear view of the operator of the Gradall and was actively engaged in the directing of traffic. The Gradall operator suddenly, and without warning, rapidly rotated the arm of the Gradall about 90 degrees over the lawn abutting the sidewalk. This caused the back-end counterbalance of the Gradall arm to swing wide into the street. (The required swing clearance of the counterbalance is ten feet out from the side of the excavator, which would place the end of the unit far into the roadway). The back end of the equipment struck Officer Flag in the back, near his shoulder, while he was in the midst of directing traffic. The force of the impact was so severe it knocked the wind out of Officer Flag, causing him to stumble for about five to six feet, as he fought to maintain his balance and stay on his feet. The employing contractor initially blamed the accident on Officer Flag.

We located the Operators Manual for the Gradall which required the employer to provide another employee as a lookout for such potential hazards, who would then communicate with the operator. There was no such lookout that day. The only crew were two persons, one who operated the dump truck and the other who operated the Gradall. We also located industry standards requiring such lookout co-workers in the publications of the The Society of Automotive Engineers. This clearly was not supposed to be a one-man operation and clearly was not Officer Flag’s fault. Again, the cause was cutting corners by assigning too few crew and rushing the job by taking no lunch break, thereby compelling the officers to direct traffic in less than optimal conditions.

After being treated at a local emergency room, Officer Flag was released to return to work, but his shoulder pain progressively worsened. The more he worked road details, the worse it got. Three months later he could bear the pain no more and was examined by a specialist, who with a sophisticated imaging technique, found internal damage in his shoulder. Officer Flag left work and began to rehabilitate his shoulder through therapy to strengthen it. When this was not successful, he finally agreed to have surgery to repair the damage, because of his desire to get back to work and the substantial detail income he was losing. He underwent an arthroscopic procedure and then another procedure months later, under general anesthesia, to break up scar tissue which limited his range of motion. This was followed by months of physical therapy. Officer Flag was finally cleared for return to full-time work twelve months after the original injury. His medical expenses approached $9,000.00 and he lost over $25,000 in overtime and detail pay which he could not earn during the 39 weeks he was out of work. After a period of negotiations, the insurance company for the employing contractor settled Officer Flag’s claim for $120,000 which included money to reimburse the Officer’s town for the medical bills and injury on duty wages it paid to Officer Flag. No lawsuit was ever filed and Officer Flag’s Town not only welcomed his claim against the employing contractor, but co-operated and assisted us throughout the claim process.

An injured officer should always consider seeking a free consultation to determine his or her rights, the benefits, and the probability of making a successful claim. I am always available by telephone, email or a personal meeting. Once I evaluate the case and the officer’s chances of success, the decision whether to go forward then rests with the officer. The decision when to return to work rests, as it should, with the officer and his doctor.

As with all claims for an officer's injuries-on-duty, there are no guarantees. Many police injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes and issues that arise under Massachusetts General Laws c. 41, §100 and §111F and or related laws.

When we work on these cases, we work on a contingent fee basis. That means the injured officer pays nothing up front and he only need pay for legal services and expenses if we successfully collect money on the claim. We typically will receive one-third of the money collected. In the off chance we are unable to collect money for the injured officer, the officer will owe nothing for our legal services.