Virginia Nurse Who Crashed After Answering Her Cell Phone Has Her Work Comp Claim Upheld By Virginia Appeals Court
By Lonce LaMon - October 9, 2011
A nurse in Virginia who answered her cell phone while driving, while she was on call from her hospital employer, has had her workers’ compensation case upheld by the Virginia Court of Appeals. The appeals court affirmed her $4,000 work comp award after her employer appealed it, stating their objection was because she answered her cell phone in her car--even though she was on call.
The case initiated in November 2009, when Donna Turpin, an on-call hospice nurse, was driving at night in mountainous Southwest Virginia and noticed a flash on her personal cell phone. The distraction caused her car to slide on some gravel, then skid out of control until it hit the bank on the other side of the road.
The protocol with her employer, Wythe County Community Hospital, was she would be contacted first by a pager they provided. When the pager did not work, her personal cell phone served as a backup, and then her home phone was a further back-up.
No evidence indicated that Wythe County Community Hospital called her personal cell phone. She was on call, but the hospital did not call her.
The court opinion by appellate Judge Stephen R. McCullough said evidence established that when the accident occurred, the phone was effectively reserved for contact with the hospital. The claimant testified that she was very tuned-in to both her beeper and her cell phone.
“That is what I do from 4:30 [p.m.] Friday until 8:00 a.m. Monday morning-- is respond to beepers and cell phones. That is what I am programmed to do,” Donna Turpin said.
According to the judge, whether the incoming message was work-related, didn’t matter. The real issue was whether an injury arose “out of and in the course of employment.”
The opinion was unpublished, meaning that it was not designated by the court to set legal precedent or be of significance to the legal system, but it could contribute to debates in cases involving doctors, reporters, food-delivery drivers and others whose work is tied to urgent cell phone calls.
However, the judge also wrote: “Cell phones and other communication devices are now ubiquitous. Employers commonly contact employees through such devices. The mere possibility that a call on a cell phone might originate from an employer does not make any injury that occurs while the employee attempts to respond to the call, or a perceived call, one that arises out of employment. We conclude, however, on the discrete facts before us that Turpin’s injury was one that arose out of her employment.”
The Virginia Workers Compensation Commission found in December that Donna Turpin was entitled to compensation for medical bills resulting from the accident, but her employer appealed.
“The lawyers for my employer decided that because the cell phone was involved, it wasn’t a workers’ comp case,” the claimant said last week. “But they also said it was an accident that happened on the job. So it’s kind of convoluted.”
Robert M. Himmel, attorney for the Wythe County Community Hospital and Travelers Indemnity Co. of America, said he was not authorized to comment on the case.
In the dissenting opinion, Judge D. Arthur Kelsey said the commission found that Donna Turpin’s accident was caused by her inattentive “response to a potential work-related contact.”
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