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February 26, 2014

What Happens When Technology and Workers’ Comp Law Collide?

Summary:

What happens when an employee has a car accident while off work but while making business calls on a personal cell phone? Is he entitled to workers’ comp?

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Those of us who have been workers’ comp professionals for a while like to think that there are no new issues. We’ve seen it all, done it all, and have a closet full of T-shirts to prove it. Yet technology, like the proverbial new wine in an old wineskin, can break out of the boundaries created by aged statutes and old case law.

There have been some recent examples of corporate civil liability for employees who are in motor vehicle accidents while using their cell phones for business. This also raises a slightly different and thornier question: What about employees who get into accidents while off work but while making business calls on personal cell phones. Should they, too, be entitled to workers’ compensation benefits?

This issue was addressed in Virginia a few years ago in the case of Donna Turpin v. Wythe County Community Hospital.  (http://www.washingtontimes.com/news/2011/oct/9/workers-comp-case-upheld-in-cellphone-related-cras/?page=all)

Here, the claimant was a nurse who was off work, but on call, when she received a work-related phone call. While trying to answer the phone, she lost control of her vehicle and crashed, resulting in moderate injuries.

The fact that nurse Turpin was on call makes the injury arguably more compensable, and the Virginia Court of Appeals agreed. It awarded benefits even though she wasn’t technically at work.

But I have been waiting to see courts address the issue where a business professional is driving his or her car on a Saturday or Sunday, running personal errands and not on call. Then, when he receives a work-related cell phone call, he becomes distracted and is in a motor vehicle accident. Should this be compensable even though the employee is not at work and is doing personal activities?

As you may surmise, the majority of jurisdictions within the U.S. would probably find this injury to be compensable, as there is a benefit to the employer from having the employee take a business call on personal time. Under the “mutual benefit doctrine,” if the employee is conducting legitimate work then the claim is compensable even if the employee is on his way to get donuts for his family.

However, if companies have a policy that prohibits the use of cell phones while driving, how do we resolve the inherent conflict between an injury arising out of work duties and an injury that occurred as the result of a violation of company policy?

Many states (but not a majority) have provisions within their workers’ compensation statute that allow for a reduction of benefits if the claimant is injured as a result of a failure to use safety devices or a failure to follow safety rules.

If you are in a state that has such provisions, this is an added reason why the company policy manual should be updated to prohibit the use of cell phones while driving. That way, even if the claim is compensable, there would still be a reduction of benefits paid.

The response to such policies is typically negative: “Why should the worker be punished when he was injured while trying to do his job?” Valid question. Here is a valid answer: incentive.

I often tell employers that safety rules and policies are not adopted to punish employees but to try to reduce injuries. Everything we do in life has risk. But any risk manager will tell you that the trick is to maximize work efficiency while minimizing (rarely eliminating) the risk. Employees should be penalized for violating safety policies, because without the concern for punishment (like having one’s comp benefits reduced or even eliminated), there is no incentive to follow the policies designed to minimize the risks faced by workers.

I drafted the hypothetical situation because: 1) It could easily happen, and 2) It demonstrates how technology blurs the line between our personal activities and our work activities.

Safety policies should be adopted to minimize risk—like a ban on driving and using cell phones at the same time. Such a policy should not only reduce the risk of injury to your employees but should also reduce the risk of increased insurance premiums.

Now, if only I could figure out a way to craft a policy that eliminated the calories in donuts, I would really be on to something.

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