An on-call nurse driving home from a mandatory work training program got distracted by what she thought was an incoming phone call from her employer. She lost control of her vehicle, sustained injuries, and was awarded medical benefits by the Workers’ Compensation Commission. However, her employer appealed, saying she was not eligible for benefits, because her injuries did not arise out of her employment.

What happened. “Alexandra” was employed by Wythe County Community Hospital as a hospice nurse. She was on call from 4:30 p.m. on Fridays until 8 a.m. on Mondays. If the hospital needed to reach her, the principal means of contact was her employer-provided pager. Alexandra frequently used her personal cell phone as a backup, though, since the pager was not always reliable. She kept the phone in her pocket at all times while on call.

When a page or call came in from the hospital while she was driving, she pulled over before answering. She did not usually carry the phone on her when she was not working, and she instructed her friends and family not to call her on weekends but to contact her husband instead, if necessary.

Alexandra was reimbursed for the mileage she incurred while traveling in her personal vehicle to the office or to visit patients. She stored her nursing bag and other supplies in her car.

On November 7, 2009, she drove to the homes of four patients and responded to a dozen calls or pages. At about 8:15 p.m., she was driving home from a mandatory, in-service training at the hospice office when the front face of her flip phone, which was in a front pocket of her nursing uniform, suddenly illuminated. She did not hear the phone ring, but looked down quickly for “just a couple of seconds” on the assumption that her employer was trying to call her.

When she looked down, her tires slid on some gravel and she lost control of the car and was injured when the car struck the bank on the other side of the road. The deputy commissioner awarded workers’ compensation benefits to Alexandra, but her employer appealed, arguing that she “did not suffer an injury that arose out of her employment.” The commission affirmed the award of benefits, and the employer appealed to the Court of Appeals of Virginia.

What the court said. The appeals court agreed with the commission that, under the particular facts of this case, the injuries arose out of Alexandra’s employment.

“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,” the court explained. “We conclude, however, on the discrete facts before us, that… [Alexandra’s] injury was one that arose out of her employment.”

When she was on call, her cell phone use effectively was reserved for contact with her employer, the court said. In addition, the court noted that her response to the illumination of the telephone stemmed from the job requirement that she carefully monitor her cell phone for calls from her employer when she was on call—not just “an impulsive respons[e] to an unexpected stimulus” as her employer contended.

The court said “the fact that, with the benefit of hindsight, it can be determined that the illumination of… [Alexandra’s] cell phone did not stem from a work-related call does not change the outcome. The test is not whether an actual call was from the employer, but whether an injury can “‘fairly be traced to the employment as a contributing proximate cause,’” the court said, citing another case.

A dissenting judge disagreed with the majority’s conclusion, saying there was no evidence that Alexandra’s employer—or anyone else—actually called her cell phone right before the accident. “The arising-out-of-employment test… requires the accident to in fact arise out of the employment—not potentially arise, almost arise, or come very near arising out of the employment.” Wythe County Community Hospital v. Turpin, Court of Appeals of Virginia, No. 0208-11-3 (10/4/11).

Point to remember: To qualify for benefits under the Workers’ Compensation Act, employees must prove by a preponderance of the evidence that their injury arose “out of and in the course of [their] employment.”