Virginia Workers' Compensation Claim Can Sometimes Be Caused by Use of a Cell Phone

A VIRGINIA WORKER SHOULD NOT USE A CELL PHONE IN HIS CAR AND STILL EXPECTTO GET WORKERS COMPENSATION BENEFITS

Many people in Virginia may think using a cell phone at work is not an accident like a fall or like a back injury caused by lifting a box. Virginians may also think you cannot get workers’ compensation for just using a cell phone at work.

However, a recent case in Virginia has indicated in some circumstances using a cell phone can be an "accident" under workers’ compensation law in Virginia. In an October 4, 2011 decision of the Virginia Court of Appeals called Wythe County Community Hospital v. Turpin the court faced the cell phone accident issue. Turpin, a nurse, kept a cell phone in her car for use at work. She was traveling between work sites on a mountain road when her cell phone rang. She reached for the cell phone which caused her to be distracted. She then skidded on the road and crashed her car and suffered an injury. The issue the Court had to decide is whether Turpin’s reaching for the cell phone was a work risk caused by her employment with the Hospital.

In a 2-1 decision, the Court said Turpin’s accident did arise out of her employment with the Hospital. The Court decided Turpin had to monitor her employer calls on the cell phone while she was working. Her attentiveness to the cell phone caused her to be distracted and caused her motor vehicle accident.

The dissenting judge would not have awarded compensation. He said there was no proof the telephone call came from her employer. He said even though Turpin had dedicated her phone to only receiving telephone calls from her employer the accident causing telephone call could have come from elsewhere.

The Turpin case shows in Virginia in some circumstances use of a cell phone can cause an accident which can result in workers’ compensation benefits. Even though Turpin may have been negligent in causing her car accident, her negligent act did not prevent her from receiving compensation because she was trying to an act required by her employment.

In summary, there may be peculiar circumstances involving your use of a cell phone at work that can result in a compensable workers’ compensation case. Certainly, if you are on a personal telephone call, you cannot expect to recover workers’ compensation benefits. But if you can show a connection between the cell phone call and your work you may recover as did Nurse Turpin. 

IN VIRGINIA THE LAW HAS NOW CHANGED. IN 2021 IT IS ILLEGAL TO USE A CELL PHONE IN VIRGINIA WHILE OPERATING A MOTOR VEHICLE. THIS LAW WILL NOT BE USED LIKE THE SEATBELT LAW TO DEFEAT INJURED WORKERS CLAIMS FOR MOTOR VEHICLE ACCIDENTS THAT RESULTED FROM USE OF A CELL PHONE.

Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/att orneys/23230-va-gerald-lutkenhaus-1814627.html

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