- The Washington Times - Sunday, October 9, 2011

The Virginia Court of Appeals has reaffirmed a $4,000 worker’s compensation award to a Virginia nurse who crashed her car while checking a cellphone.

The case started in November 2009 when on-call hospice nurse Donna Turpin was driving at night in mountainous Southwest Virginia and noticed a flash on her personal cellphone, which was tucked into a front pocket of her uniform. The distraction caused Ms. Turpin’s 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 provided and paid for by the employer. When the pager did not work, her personal cellphone served as a backup, and her home phone as a third option.

Earlier in the day, Ms. Turpin responded to 12 pages or calls, according to court documents.

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.

Ms. Turpin testified that she was “very in tune to both [her] beeper and [her] cellphone.”

She said: “That is what I do from 4:30 [p.m.] Friday until 8:00 a.m. … Monday morning is respond to beepers and cellphones. That is what I am programmed to do.”

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 [Ms. Turpin’s] employment,” the judge wrote.

The opinion was unpublished, meaning that it was not designated by the court to set legal precedent or be of significance to the legal system, but it could contribute to debates in cases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 cellphone calls.

However, the judge also wrote: “Cellphones and other communication devices are now ubiquitous. Employers commonly contact employees through such devices. … The mere possibility that a call on a cellphone 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 Ms. Turpin, 51, was entitled to compensation for medical bills resulting from the accident, but her employer appealed.

“The lawyers for my employer decided that because the cellphone was involved, it wasn’t a workers’ comp case,” Ms. Turpin 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 compensation commission found Ms. Turpin’s accident was caused by her inattentive “response to a potential work-related contact.”

“She was on call, but she was not in fact called,” he wrote. “No evidence suggests Turpin’s employer called her personal cellphone.”

The judge also wrote that Ms. Turpin conceded she did not know whether she was receiving a call during the drive, which qualified for mileage reimbursement.

“She merely saw a light illuminate on her cellphone,” he wrote. “In short, Turpin apparently assumed she was receiving a call and assumed further it was from her employer, despite conceding she has no evidence to support either assumption. No matter how liberally we construe the workers’ compensation statute, this is simply one insupportable assumption too many.”

Ms. Turpin said she was only seeking $4,000 for medical costs, to cover treatment for cervical whiplash and the cost of the ambulance and emergency room visit, and that she returned to work the next weekend.

“I know it’s the insurance company’s job to try not to pay claims,” she said. “To me, they did their employer a disservice because they spent so much more money than they would have. I honestly think they thought I was just going to give up.”

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