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Louisiana Workers Compensation
Chapter 1
Arising out of and in the Course of Employment
What activity/accident and injuries are covered by workers compensation? What is a compensable accident? Worker’s compensation is a no fault system. It is a compromise between employers and employees.
The employer will compensate employees for all injuries regardless of fault, and in exchange, the employee gives the employer tort immunity. This is called the “exclusive remedy”.
The system is designed to insure that workers injured on the job get immediate medical coverage and wage replacement. If the employee were forced to sue his employer in tort, the payment of wage replacement and medical expenses would not be paid unless and until the employee proved employer fault. If the employee could prove that the employer was at fault, however, the final payout would include greater damages, including pain and suffering. If there was no fault on employer, there would be no liability. Tort immunity in exchange for no fault coverage is the compromise of workers compensation.
Whiteley & May Law Firm frank@whiteley-law.com Page 2 “Arising out of and in the course of employment”
1.) “Arising out of” looks at the source of the risk.
The question is whether the risk is greater for the employee than for a non-employee? 2.) “Course of employment” looks at the time and place of the activity.
If the employee is at work, clocked in, and doing a work activity almost any accident and injury will be found to be compensable.
A Typical Workers Compensation Claim:
John is an ironworker. He works for Whiteley Ironworks. While at work he bends over to pick up a hammer. He feels a pop in his back. He is injured and needs immediate back surgery. He can no longer work. Whiteley Ironworks was not negligent in causing the accident, (no fault). John’s injury will still be covered by the Whiteley Ironworks’ workers compensation policy.
Society benefits from Whiteley Ironworks bearing the expense on injuries occurring at work, as work injuries are part of the cost of Whiteley Ironworks doing business. John needs immediate medical care and wage replacement. If we did not have a system of workers compensation, John might become a ward of the state. He would be without income, and he would not be able to care for his family. He might be unable to pay for needed health care, or John may be forced to have his medical expenses covered by the State through Medicare or the Charity Hospital system.
Balancing test:
A strong showing of “course of employment” can overcome a weak showing of “arising out of” employment.
“An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at other places where employment activities take the employee. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932);”
“The principal criteria for determining course of employment are time, place and employment activity. Thus, when the employee is squarely within the course of his employment, virtually any risk (whether an increased risk or not) has been considered as arising out of employment.” Mundy v. The Department of Health and Human Resources, 593 So. 2d 346, 348 (La. 01/17/92),
The risks which have caused the greatest difficulty are those that have neither a particular employment character nor a particular personal character. 1 A. Larson,
Whiteley & May Law Firm frank@whiteley-law.com Page 3
Workmen's Compensation § 7.00 (1990). When the accident occurs at such a time or place
or during such an activity so that the employee is barely within the outer boundary of the "course of employment" inquiry, a very strong showing by the employee that the risk arose out of the employment is necessary to establish the relationship between the injury and the employment necessary for entitlement to compensation.
Mundy v. The Department of Health and Human Resources:
In Mundy, the plaintiff worked as a nurse for Charity Hospital. On the date of the accident, the plaintiff arrived at the hospital and proceeded to the elevator to take it to the eleventh floor where she was scheduled to work the night shift. A stranger entered the elevator with her. When the elevator stopped and the doors opened on the second floor the man started stabbing Mundy. Nurse Mundy eventually pushed her assailant out of the elevator onto second floor. Mundy then proceeded to her eleventh floor work station where she received medical care.
Instead of filing a workers’ compensation action, Nurse Mundy filed a tort action for negligence against her employer. Her employer argued that it was protected by the exclusive remedy of workers’ compensation, and as such, the plaintiff did not have a viable tort claim. Id.
The trial court granted a judgment for the plaintiff finding that “plaintiff ‘had not come under the control or supervision of Charity Hospital at the time when the incident occurred,” and therefore, she was not in the course and scope of her employment. The issue of “course and scope” was eventually reviewed by the Louisiana Supreme Court. Id.
The Supreme Court reasoned that,
“An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his
duties during working hours…on the employer’s premises… Id. citing Kern v.
Southport Mill, 174 La. 432, 141 So. 19 (1932). The principal criteria for
determining course of employment are time, place and employment activity.” Id. at 349.(Emphasis added).
The Court further reasoned that: “An accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.” Id.
Both the “course and scope of employment” and “arising out of employment” requirements must be analyzed together. However, in a close case, “course and scope” has been found to “counterbalance a relatively weak showing of ‘arising out of employment.” Id. citing Raybol v. Louisiana State University, 520 So. 2d 724 (La. 1988).
Whiteley & May Law Firm frank@whiteley-law.com Page 4 For example:
“When the accident occurs at such a time or place or during such an activity so that the employee is barely within the outer boundary of the ‘course of employment’ inquiry, a very strong showing by the employee that the risk arose out of the employment is necessary to establish the relationship between the injury and the employment necessary for entitlement to compensation.” Id. at 350 citing Robinson v. F. Strauss & Son, Inc., 481 So. 2d 592 (La. 1986).
In Mundy, “[w]hile the conditions of the employment arguably caused plaintiff to be at the place of the attack at the time the attack occurred, there were other alternative routes for her to reach her work station”. Id. Mundy.
“The "course of employment" inquiry, plaintiff was attacked before she arrived at her work station and before she began her employment duties. Although she had entered the building in which her work station was located, she was in the public area of the building open to the public, on an elevator used by patients and visitors as well as employees.” Id. Mundy.
“She clearly had not yet reached the place where she would be under the supervision and control of her employer. Templet v. Intracoastal Truck Line, Inc., 255 La.
193, 230 So.2d 74 (1969). Under the circumstances one could hardly say that there was a
strong "course of employment" showing.” Id. Mundy.
Often times the choice of remedy (tort or workers compensation) by the injured party skews the analysis of the Court. When an employee seeks workers compensation benefits as their remedy the court’s expand the “course and scope”. When the employee seeks tort the workers compensation coverage is contracted.
Otherwise, how can cases like Glory v. Zuppardo's Economical Supermarket, Inc. 532 So2d 933 (La App 5th Cir 1988) be reconciled with Mundy? In the Glory case, the employee had punched out. She went to the parking lot, and then she returned to the store to get her paycheck. While still in the store, on her way back to her car, she slipped and fell. Glory sought workers compensation from her employer and was found to be in the course and scope of her employment.
Whiteley & May Law Firm frank@whiteley-law.com Page 5 TRAVEL TO AND FROM WORK:
The general rule is that travel to and from your home to your work place is not covered by workers compensation. There are, however, exceptions to this rule.
1.) If the employer interest itself in the travel. Paid for travel time;
A company car; or
Milage or expense reimbursement. 2.) The employee is on a mission for the employer.
The employee is sent home to get a work supply;
The employee is sent to the store to get work materials; or
The employee is sent to bank on the way home to make a deposit of business funds.
What are the limits, is the employee only covered on the way to the bank, but what about after he makes the deposit?
3.) The accident happens on the employer’s premises.
The employee works for Exxon, they are on the premises of the refinery, but they have not reached the work station. Distinguish, Mundy: only Exxon employees are allowed to drive their personal vehicles into the Exxon refinery.
4.) Travel will be in the course and scope of employment when the employee is traveling from one work site to the next. For example, a lawyer is traveling from the courthouse where he had a hearing to a deposition at another office.
So called “guest passenger cases” have resulted in some unusual findings that can only be explained by the injured worker “choice of remedy”, whether tort or workers compensation. In Hill v. West American Ins. Co., Nos. 93-915, 93-932 (La App 3d Cir 5/19/94) 635 So2d 1165, the employee, guest passenger, was injured while riding in a company car. The accident occurred while he and co-employee drove from job site in a remote area to get lunch. The co-employee/driver was at fault in causing the accident. The court permitted employee to sue the employer's auto liability insurer for tort damages. Similarly, in Dupre v. Exxon Pipeline Company, No. 93-1528 (La App 3d Cir 6/1/94) 638 So2d 1118, the court permitted the employee of an Exxon sub-contractor to sue Exxon in tort for injuries received in an auto in which the employee was a guest passenger in a truck being driven by an Exxon employee. The employee had completed the work at a remote job site and was being transported to the Exxon office where he had his personal vehicle parked. The court held that he was not in the course of employment because he had finished the job duties.
Whiteley & May Law Firm frank@whiteley-law.com Page 6 While Working Out of Town or the Traveling Salesman Rule:
The “Comfort Doctrine” provides workers compensation coverage for accidents occurring while the employee is out of town for work but occur during personal time.
In Robinson v. Simmons Co., 99-1319 (La. App. 4th Cir. 3/22/00), 762 So2d 112, writ
denied 2000-1122 (La. 6/2/00) the employee was traveling from Louisiana to Wisconsin on a sales trip. The employee was shot and killed in Chicago. His car was later found in Gary, Indiana. It was not determined what exactly the employee was doing in Chicago, whether going out to eat or sightseeing, or perhaps he was engaged in some activity totally unconnected to his employment. The murder was not solved and the motivation for the killing was not determined. The employer argued that Robinson had no business reason to stop in Chicago, that he should have gone straight to Wisconsin, and that any stop in Chicago was a personal deviation. The court found the death was compensable, and noted that the traveling salesman cases are to be construed liberally.
Deviation from Employment Mission:
In Walker v. Acadian Builders of Gonzales, Inc., after completing his job duties, the decedent jumped into a golf course pond adjacent to the worksite and drowned. 835 So. 2d 827 (La. App. 1 Cir. 11/08/02). The trial court found that the decedent was not in the course and scope of employment because the risk associated with drowning in a pond was not incidental to the decedent’s employment. Id. at 829.
In the Walker case, the employee was waiting to be picked up by his employer at the time of his death. Would the result have been the same if, instead of drowning, the employee had been struck by lightning?
When analyzing the “course of employment” requirement:
the court focuses on whether the employee sustains an injury while actively
engaged in the performance of his duties during working hours, either on
the employer’s premises or at a place contemplated by employment activities. Id. citing Davis v. St. Tammany Parish School Board, 808 So. 2d 826 (La. App. 1 Cir. 02/15/02).
“When reviewing the “arising out of employment” requirement, “the court inquires into the character or origin of the risk suffered by the employee and determines whether this risk was incidental to employment.” Id.
The decedent drowned after his employment duties were completed for the day, “at a place that was not contemplated by his employment activities” and because he was not actively engaged in his employment duties when the accident occurred, the court determined that he was not in the course and scope of employment at the time of the accident. Furthermore, the court determined that the accident did not arise out of the
Whiteley & May Law Firm frank@whiteley-law.com Page 7 decedent’s employment because the risk of the injury was not “incidental to [the decedent]’s employment as a foundation digger.” Not only was the decedent not digging a foundation, the employer did not require him to be at the place of the accident. Decedent’s “actions were not in furtherance of any work activity, but were ‘for his pure enjoyment.” In fact, the court determined that the act of swimming in the pond was so “substantially different” that it completely removed him from his employment with the defendant. Id. at 830.
See also Robinson v. F. Strauss & Son. Inc., 481 So.2d 592 (La. 1986) (denial of compensation affirmed when "course of employment" showing was weak because employee had deviated from employment task to attempt reconciliation with a neighbor who was jealous over the employee's attention to the neighbor's girlfriend, and the neighbor's shooting of the employee provided a weak "arising out of employment" showing).
Threshold Doctrine:
An exception, known as the threshold doctrine, has been recognized when an accident occurs at a place with an unusually hazardous travel risk which is immediately adjacent to, but not on, the employer's premises. The threshold doctrine generally involves a special risk, attributable to the location of the work premises, that is different from the risks to which the general traveling public is exposed or that is more aggravated in the area adjacent to the employer's premises than elsewhere. W. Malone & H. Johnson, supra, at § 169; see Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969.)
The threshold doctrine usually applies to inherently dangerous conditions, like railroad tracks adjacent to an employer’s premises, where employees are forced to walk across the tracks in order to reach the employer’s premises. One case even held that a high crime rate neighborhood can fall within the “threshold doctrine”.
In Robinson v. Brown, 35,430-WCA (La. App. 2d Cir. 12/19/01), 803 So. 2d 396, the court found that the “threshold doctrine” did not apply. The employee went to work during an ice storm and found a note on the office door stating that the office would be closed for the day. After she left the building, and was walking to the parking lot where her car was parked, she slipped on a patch of ice and injured her back. At the time of accident, she was crossing a public street. The court rejected the “threshold doctrine” finding that the ice storm reached the area the day before the alleged fall and that the icy condition existed over most of the area and was not unique to an area in which the employee was required to traverse to and from her place of employment. Furthermore, she was not on her employer's premises at the time of the fall; she had already left the building and was on a public street, walking toward a parking lot that was open to the general public.
My Boss Told Me To Do It:
In Hebert v. CIGNA, 637 So. 2d 1221 (La. App. 3 Cir. 5/25/94), Lenis Hebert was
employed by Murphy’s Lease and Welding Service, Inc. as a roustabout. Occasionally, Hebert’s assignments included performing personal tasks for the owner of Murphy’s
Whiteley & May Law Firm frank@whiteley-law.com Page 8 Welding, Gerald Libersat. These personal tasks included work at Libersat’s cattle farm. Id. at 1223.
On the day of the accident, Libersat told one of Hebert’s supervisors to request that Hebert round up a calf which had gotten loose on the cattle farm. The supervisor instructed Hebert to perform this task. While attempting to lasso the calf on horseback, Hebert was thrown from the horse he was riding. The horse fell onto Hebert, and he was rendered a paraplegic.
The trial court determined that the claimant was in the course and scope of his employment with Murphy’s Welding at the time of the accident on the owner’s cattle farm. The appeals court affirmed, reasoning that because the claimant was given special instructions to perform this task, and based on the rationale that “the employee has no practical choice but perform the assigned task”. Hebert was within the course and scope of his employment at Murphy’s Welding even though roping calves has nothing to do with welding fabrication. The court further recognized that Hebert was performing “a task required by him in his regular employment at Murphy’s.” Id. at 1227. (Emphasis added).
When an employee is following the direct order of a person in authority to perform a task outside of his normal employment duties for the benefit of his employer or of the superior, and is injured in the course of that work, the injury is usually compensable. (Emphasis added). The rationale…is that the employer…has implicit power to enlarge the normal course of the employee’s employment by assigning particular tasks or duties…the employee has no practical choice but perform the assigned tasks. Id. at 1225, citing Vicknair v.
Southern Farm Bureau Casualty Insurance Company, 292 So. 2d 747 (La. App.
4 Cir. 1974).
Ultimately, the court held that when a regular employee is requested by his employer to perform a job or errand not within the course and scope of his regular employment or the regular business of his employer, during regular working hours, while being paid by his regular employer, and the employee is injured as a result of that work, workers’ compensation benefits are due. Id. (Emphasis added).
In Freeman v. Brown’s Furniture of Bunkie, Inc., the appeals court found that the
“services plaintiff performed for [his supervisor] were a requirement of his employment with Brown’s.” 527 So. 2d 544 (La. App. 3 Cir. 06/22/88). (Emphasis added). This was the finding of the Court even though Brown was injured preforming services at a fireworks store not the furniture store.
Whiteley & May Law Firm frank@whiteley-law.com Page 9 Affirmative Defenses:
Section 23:1031:
D. An injury by accident shall not be considered as having arisen out of the employment and is thereby not covered by the provisions of this Chapter if the injured employee was engaged in horseplay at the time of the injury.
E. An injury by accident should not be considered as having arisen out of the
employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment.
In Jackson v. Quikrete Products, Inc., 2001-CA-1181 (La. App. 4th Cir. 04/17/02), 816 So2d 338, the argument between two co-employees initially arose out of a dispute over who would move bags of concrete. One of the employees then defamed the mother of the other employee, and the fight escalated into a personal dispute, any injuries as a result of the fight are considered as arising out of the employment. The origin of the fight was so employment related that statements in the heat of the momoment did not turn it into a purely personal matter.
Section 1081. Defenses
(1) No compensation shall be allowed for an injury caused:
(b) by the injured employee's intoxication at the time of the injury, unless the employee's intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours, or
(c) to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor.
Hypotheticals:
1.) Hillary is a maid at the Days Inn. At the end of her shift, she punches out. There are numerous ways to exit the building. She chooses to go to the front of the hotel where people checking and unloading luggage are protected from the rain by a covered driveway. Her sister arrives in a car to give Hillary a ride home. After Hillary gets into the car, a section of the overhang (covered drive) falls onto the car, injuring Hillary and her sister. Are Hillary’s injuries covered by Worker’s Compensation?
Whiteley & May Law Firm frank@whiteley-law.com Page 10 2.) An employee left work premises after dark. She headed to her vehicle which was
parked in the lot across the street. The employer required all employees to park in the lot owned by the employer. The lot was up about fifteen steps from the street. It had formerly been the foundation of an old high school. The steps had no handrails and many steps were broken and uneven. The employee falls on the steps leading to the parking lot. Will the injuries be held to be compensable and, if so, under what doctrine? 3.) A worker volunteered to drive his boss home after work. He made a slight detour on
the way to his boss’s house to make a night deposit. After delivering the boss, he had an automobile accident on the way to the employee’s home. Will the injuries sustained by the employee be compensable?
4.) After a meeting with his boss, an employee was fired and told to gather his personal affects and leave the premises. The employee did so, but after gathering his box of personal affects, tripped down the stairs and was injured. Is he in the course and scope of his employment?
