Will employees on cell phones drive up workers’ comp costs?
August 15, 2011 by Fred HosierPosted in: cell phones and safety, In this week's e-newsletter, Injuries, Latest News & Views, new court decision, Special Report, Transportation safety, What do you think?, Workers' comp
PDF An employee was talking on his company-issued cell phone to a co-worker in his own car when he was shot in the face by someone in a passing vehicle. A ruling says he should receive workers’ comp benefits because he was on the company cell phone at the time of the shooting.
James Hunt was principal of Fairmont Middle School in the Robeson County, NC, school district. Hunt had worked to stop the formation of gangs at the school. He suspended a gang leader and had a confrontation with a gang member.
On the morning of April 9, 2009, as Hunt was driving to Fairmont he was talking on his district-issued cell phone with a school staff member about school business.
During the call, a truck pulled up beside his car. Hunt heard a loud noise and saw his finger and phone explode. He pulled over, saw a bullet hole in his window and then realized he had been shot in the face around the mouth and nose. He leaned forward and saw teeth and bone fall out of his mouth.
No suspect has been named, and there have been no arrests in the case.
Hunt applied for workers’ comp. The district’s insurance company denied his claim. The matter then went to a state workers’ comp commissioner.
The commissioner found more than one reason why Hunt should receive workers’ comp benefits:
- The district paid him a travel allowance for driving to and from work. A “contractual duty exception” to the “coming and going” rule exists if any employer provides compensation to cover the cost of transportation to and from work.
- The attack on Hunt arose out of his employment because the shooting was more likely than not related to his anti-gang activities as school principal.
But the third reason should be of interest to all sorts of employers: “Even if the contractual duty exception does not apply, [Hunt's] injury nonetheless occurred in the course and scope of his employment because [his] responsibilities as principal required him to be on call at all times and to address emergent issues and other school matters by mobile phone while out of the office, including in the morning while commuting to the school. Therefore, because [Hunt] was conducting school business by mobile phone at the time of his accident, the accident occurred within the course and scope of his employment.”
Coming and going rules would normally determine that an incident while commuting doesn’t quality for workers’ comp.
However, cell phones may be changing that.
There’s not much case law yet on this issue. North Carolina is among the first to tackle it.
In Hunt’s case, his employer appealed the commissioner’s ruling. The full state workers’ comp commission upheld the decision.
Now the school district is appealing the decision to a state court.
This case may be a first, but it certainly won’t be the last.
More and more companies are expecting their employees to be on call 24/7, including via cell phones.
Does workers’ comp coverage kick in when an employee is injured off-site while using a cell phone for company business? If so, that’s likely to increase workers’ comp rates.
Experts predict that insurance companies will strongly defend against such claims. But if this North Carolina case is any indication, insurers and their client companies may have to pay up.
As it moves through the court system, this case bears watching. We’ll keep you up to date.
Here’s something for companies to consider: Would you rather try to defend against a case in which an employee is injured while driving and talking on a cell phone for company business, or would you rather institute a policy that employees should not talk on a cell phone while driving? Do these phone calls really need to be answered instantly, or can they wait until the person gets to the office or at least pulls over to the side of the road?
What do you think? Let us know in the comments below.
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Tags: cell phones, coming-and-going rule, principal shot, school gangs, Workers' comp
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August 16th, 2011 at 7:39 am
Agree with the judge about the first two causes, and in this case it’s fair that it be considered compensable since the attack was likely the retaliation for the principal’s on-the-job actions. BUT, the part about cell-phone use alone driving a WC responsibility is way off base. Any conversation about work that’s away from the premises, and which occurs during non-working hours, is incidental the the location the person is at and likely to the actual cause of an incident - circumstances that to make make it impossible to consider any resulting injury as eligible for worker’s comp. For instance, by the logic in the article I could be in my backyard barbequing and speaking on my cell phone with a co-worker about a work issue - and if the BBQ, which I alone own and maintain, were to have a malfunction and cause me injury then it would qualify for comp because it happened when I was talking work. Where’s the connection to my employer??? The entire line of reasoning is seriously flawed and total rubbish!
August 16th, 2011 at 8:21 am
What message is the school district sending to their employees when they try to get out of paying workmans comp to a priciple who has the guts to tackle youth gangs? Is the money more important to them than supporting employees willing to do the tough work? Shamful!
August 16th, 2011 at 8:23 am
Why is it that all anyone is worried about is driving up workmans comp costs and not worried about supporting employees hurt while doing work for their employers?
August 16th, 2011 at 9:34 am
It appears that the “Coming and Going” provisions of WC do not apply in this case, as the Principal was contractually covered by his employer during travel times to and from his office. If that is accurate, that alone ends the dispute. The District is obligated to cover his injury and provide WC benefits.
I agree that simple use of a copmpany cell phone to hold incidental conversations with fellow employees - especially while barbecuing - is stretching the WC obligation too far.
August 16th, 2011 at 9:59 am
I agree with Bob that the award should stand on the first two criteria, however, I would like to see the cell phone reason upheld because most after hours phone calls are uncompensated, and therefore free labor for employers. Even executives need time off to de-stress and recharge. That’s what delegation is for.
August 16th, 2011 at 10:08 am
Clearly the state has no distracted driving law that allows/encourages the unsafe practice of using a handheld device while driving, so therefore they need to pay up. But as an EH&S Professional, I’d have to come down on the ‘it waits until you pull over safely to address’ side of the cell calls while driving question.
And if you’re on call 24/7 then insurance needs to adjust appropriately.
August 16th, 2011 at 11:26 am
Our policy already states “no use of cell phones while driving”. New state law goes into efect in October that allows hands-free only. Policy, however forbids hands-free operation as well. It is still apparent that if they were on-call or on the clock and using their cell phone for business and pulled over (or not even on the road) we would be held liable under worker’s comp.
Agreed that if not on-call we draw the line on coverage for other business conversations.
August 16th, 2011 at 12:09 pm
I agree that the award should stand.
Society has dictated that people should be available 24-7 via phone.
What happened to the days when we would go into the office check our messages and go on from there. We need to re-think what an emergency is and limit our cell phone usage.
August 16th, 2011 at 3:23 pm
I will have to agree with the ruling on Hunts’ case. I feel this way because he deserves compensation for the trama he has endured while standing up for what is right. However, Hunt was not injured while at work. If i should be driving my company truck to work tomorrow and a car strikes me, my injuries would not be covered by workers compensation. This is the reason companies offer insurance and short and long term disabilitie packages. Who should know what is going to happen tomorrow. We all must protect ourselves financialy for who are we kidding, no insurance company wants to pay out.
As for the cell phone, companies should require one to pull over to speak on the phone. Talking on the phone while driving increases your chances of a wreck in turn raising the insurance premium.
August 17th, 2011 at 8:27 am
I feel he should be paid comp. but not because he was on a cell phone. No body should be on a cell phone while driving. If he wasn’t distracted by being on the cell phone he may have escaped injury by being more aware of his surroundings.
August 17th, 2011 at 11:13 am
Let’s face it. Cell phones are often a distraction. If an employee is required to use one for work purposes while not at the workplace, the employer ought to still have some repsonsibility about safeguarding against the hazardous distractive effects of cell phone use. These safeguards might be requirements about not answering the phone while driving, asking first if the employee is in a safe area and time for making a phone call, etc. Maybe that theoretical BBQ explosion that Bob poses could have been prevented if the distraction from the cell phone call was not present.
August 23rd, 2011 at 5:17 pm
I wonder if while on the company provided cell phone he had a wreck would that also be covered not just wo but also the associated damages.
August 24th, 2011 at 8:20 am
Cell phones and secure wireless devices allow businesses to empower employees to work anytime anywhere - the workpllace has changed and this will introduce new challenges wrt Workers Comp situations. In this case the school system ought to back off and support their hero not fight him. You get shot doing your job or bacause of your job they need to support their people. How would the school board members feel if the gangs started shooting at them? The same gangs they are paying the principal to go up against. They are wrong. Ont he other point of employees on cell phones.. in mnay states it is illegal to talk on a cell phone while driving unless it is hands free, which adds in more complications wrt the policy of having people pull over.. in this case had the principap been stationary in his car he may not be around anymore to pursue this situation
September 8th, 2011 at 10:15 am
The first question I would ask is if Hunt wasn’t talking on the phone would he still have been shot? Most probably yes, however, since there is no evidence that the shooting occured because of his anti-gang activity, there is reason doubt that the shooting occured out of road rage. In addition, did his anti-gang activity continue into off hours worked, if so, there is still reasonable doubt that it was related to his employment.
September 8th, 2011 at 2:15 pm
INSTITUTE A “NO TALKING ON A COMPANY CELL PHONE WHILE DRIVING”!! Does this school district not have a policy in place now?? Possibly, just possibly if he had not been talking on the phone, he may have been paying a little more attention to his surroundings & avoided being shot…maybe.
September 8th, 2011 at 3:53 pm
Connie, did you read the other responses. You basicly repeated what I already said. Also, did you know that there are laws already in some states that prohibit talking on a cell phone while driving
September 8th, 2011 at 5:00 pm
I think only 9 states have laws prohibiting the use of hand held cell phones while driving. Many more prohibit texting while driving.
September 9th, 2011 at 7:42 am
North Carolina isn’t one of those states, Bill. And, no, I did not read the other responses. My first response upon reading was “What was so important about that call that he just had to answer it! Why couldn’t he have just pulled over or waited til he got to his destination & called back!” I’ve seen too many accidents in my county that were caused by texting or talking on a cell phone. And too many caused by truckers on the interstate in this county doing the same! It’s unbelievable! And people are going to text/talk no matter what laws are in place. Guess you could say this is my pet peeve. Sorry Bill! It’s just that seeing people get needlessly hurt or killed really gets to me!
September 13th, 2011 at 1:37 pm
In many provinces in Canada it is against the law to talk on the cell phone while driving. All provinces and states should be instituting this policy. I believe it is also against the law in New York State. Pull over and off the road, put your car in park and then talk on the phone. No phone conversation is worth causing accidents & deaths!