Was Virginia Nurse on Duty When She Crashed her Car?

By Peter DePaolis

The Virginia Workers’ Compensation Commission (VWCC) ruled that a nurse was on-duty when she crashed her vehicle and suffered injuries. Accordingly, the VWCC approved her eligibility for workers’ compensation benefits and her employer appealed the administrative ruling. Here are some of the facts:

The woman was on-call as a nurse and had her personal cell phone and work-provided pager with her in her personal vehicle. She used her cell phone because the pager did not always work properly. Her employer also reimbursed her mileage when she visited patients’ homes. One evening, she visited four patients and was returning home from a mandatory training session.

While driving, her cell phone did not ring but lit up so she looked down to see if her employer was calling her. She took her eyes off the road, lost control of the vehicle, and crashed into a barrier. Her employer argued that her injuries did not arise from her employment, thus she was not hurt on the job.

The appeals court ruled she was on the job because she reserved her personal cell phone for work use while on duty and because her employer told her to monitor her cell phone for work-related calls. Even though she was never able to say whether her phone actually rang, or whether her employer actually called her, the court said her injury could still be traced to her employment as a contributing proximate cause. The court held, “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.’” Because her employer required her to monitor her calls, even when driving, the accident was related to her work and thus covered under workers’ compensation.

Although not analyzed by the Court, this case also presented interesting issues with regards to whether or not the nurse was “working” at the time of the accident. In Virginia, you are not generally eligible for workers’ compensation if you are injured on your way to work or on your way home from work. This is generally known as the “going and coming” rule. There are three notable exceptions, (1) when the means of transportation is provided by the employer or the time consumed is paid for or included in the employee’s wages; (2) when the way used is the sole and exclusive way of ingress and egress with no other way, or where the way of ingress and egress is constructed by the employer; and (3) when the employee on his or her way to or from work is still charged with some duty or task in connection with the employment.

Presumably, the court found that she was still “on the clock” because she was monitoring her cell phone for calls from work, and thus “charged with some duty or task.” Ironically, there was never evidence presented that her employer had actually called her at the time of her accident.

Often, eligibility for workers’ compensation benefits hinges on the details of the accident and the circumstances around which it occurred. Has the WCC ever denied your application for workers’ compensation benefits? Be sure to contact an attorney before you ever give a statement to the insurance company after being involved in an accident as the smallest details can make the difference between acceptance or denial of benefits.

Koonz McKenney Johnson & DePaolis LLP

Maryland, Washington, D.C., and Virginia Injury Attorneys

Approved by attorney Thomas McWeeny

About the Author
Peter DePaolis joined the firm in 1980 and has since represented a large number of individuals involved in automobile collisions, truck accidents, bus crashes, defective products, and medical malpractice cases. A significant portion of Mr. DePaolis’ practice is devoted to working on behalf of people suffering from asbestosis, mesothelioma, and other asbestos-related cancers. He has led his firm’s fight against the asbestos industry and has recovered over $30 million in damages for asbestos victims and their families.