You know it isn’t safe to talk on the phone to an employee who’s driving. But this case seems to suggest that you’re better off not even knowing your employee’s cell phone number.
A Virginia court has upheld a comp commission decision awarding comp to a nurse who skidded off the road one night when her cell phone flashed, distracting her.
She didn’t answer it, mind you. And her employer wasn’t even the one trying to call her.
But none of that mattered, said the court. She was a traveling nurse, and the understanding was that when she was needed, her employer would first try her pager — and if that didn’t work, it would call her personal cell.
She was on call the night it happened. She said the distraction caused her to skid out of control on some gravel and hit a bank on the other side of the road.
The court decided it didn’t matter whether the incoming call was work-related. The issue was whether her injuries arose out of and in the course of employment.
Programmed to respond?
The employee testified that she was “very in tune to” both the beeper and the phone. Responding was what she was “programmed to do,” she said.
The court acknowledged that the “mere possibility” that a call might be coming from an employer doesn’t place within the scope of employment any injury that results from an attempt to respond to a call, but the facts of this case did, it said.
A dissenting judge disagreed.
“She was on call, but she was not in fact called,” he wrote. “She assumed she was receiving a call and assumed further it was from her employer, [though there was] no evidence to support either assumption. No matter how liberally we construe the workers’ compensation statute, this is simply one insupportable assumption too many.”
