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.