26,755 La.App. 2 Cir. 4/5/95, Mitchell v. Brookshire Grocery Co.

• Decision Date: 05 April 1995
• Citation: 653 So.2d 202
• Parties: 26,755 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 202

653 So.2d 202

26,755 La.App. 2 Cir. 4/5/95

Bobbie J. MITCHELL, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, Defendant-Appellee.

No. 26755-CA.

Court of Appeal of Louisiana Second Circuit.

April 5, 1995.

Writ Denied June 16, 1995.

Donald Brown, Monroe, for appellant.

Kim Purdy, Shreveport, for appellee.

Hudson, Potts and Bernstein by Brian P. Bowes, Monroe, for intervenor.

Before MARVIN, C.J., WILLIAMS, J., and CULPEPPER, J. Pro Tem.

WILLIAMS, Judge.

The plaintiff, Bobbie J. Mitchell, appeals the dismissal of her claim for worker's compensation benefits. The hearing officer found the plaintiff failed to prove by the preponderance of the evidence that the accident occurred in the course of and arose out of her employment with the defendant, Brookshire Grocery Company ("Brookshire"). Mitchell appeals. We reverse and remand.

FACTS

The plaintiff was employed by Brookshire as a cashier. On the day of the accident, in December 1991, Mitchell completed her shift, clocked out and then proceeded to make a purchase from the store. After completing her purchase, Mitchell was accompanied out of the store by a stock clerk, Greg Frost, who carried her grocery bag. While walking to her car, Mitchell fell in a pothole in Brookshire's parking lot, suffering serious injuries. She and Frost immediately went back into the store and reported the accident to Brookshire's assistant manager, Mike Perot. Apparently, however, an accident report was not completed until some months later, by a different assistant manager.

Mitchell reported to work three days later, on her next scheduled workday. She continued her employment with Brookshire in spite of frequent pain. Mitchell testified that the pain in her neck and shoulders became progressively worse. In July 1992, she stopped working because of the pain and her doctor's recommendation that she have surgery. Mitchell underwent surgery on her neck and upper back in August 1992. ¹ Following surgery, she had three to four months of physical therapy. Mitchell testified that she continues to have the neck and shoulder pain, particularly when using her arms and hands. In addition, she stated that although a pinched nerve in her left arm was relieved by the surgery, she now has trouble with weakness in that arm.

Mitchell filed suit for worker's compensation benefits. After a trial on the merits, the hearing officer dismissed her claim for benefits against her employer, Brookshire. This appeal ensued.

DISCUSSION

Mitchell argues that the hearing officer erred in finding that the accident did not occur in the course of and arise out of her employment with Brookshire and in failing to award her worker's compensation benefits and medical expenses.

To prevail in a claim for worker's compensation benefits, the claimant must establish that he or she suffered personal injury by accident "arising out of and in the course of" his or her employment. LSA-R.S. § 23:1031. Both arising out of and in the course of employment must be proven to qualify for worker's compensation benefits; however, they should not be considered in isolation, and a strong showing of one can overcome or strengthen a weaker showing of the other. Duncan v. South Central Bell Telephone Co., 608 So.2d 649 (La.App. 2d Cir.1992), writ denied, 610 So.2d 800 (La.1993). The worker's compensation act is to be liberally construed in favor of the injured employee. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993); LaPrarie v. Pony Express Courier, 628 So.2d 192 (La.App. 2d Cir.1993), writ denied, 94-0014 (La. 02/25/94), 632 So.2d 765.

The principal criteria for determining course of employment are time, place and activity. Mundy v. Dept. of Health & Human Resources, 593 So.2d 346 (La.1992). Even if an employee has finished his day's work and is in the act of leaving, he is entitled to a reasonable period while still on the employer's premises which is regarded as within the course of employment; the working day embraces these intervals just as it embraces reasonable periods of rest, relaxation, and attendance to personal needs. Duncan, supra, citing Duncan v. South Central Bell Telephone Co., 554 So.2d 214 (La.App. 2d Cir.1989), writ denied, 559 So.2d 125 (La.1990); Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966).

The determination of whether an accident arises out of employment focuses on the character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment. Mundy, supra. An accident has been held to arise out of employment if the conditions or obligations of the employment caused the employee in the course of employment to be at the place of the accident at the time the accident occurred. Mundy, supra. When an employee is squarely within the course of his employment, virtually any risk has been considered as arising out of employment. But, when the accident occurs at a time or place or during an activity such that the employee is barely within the outer boundary of the course of employment, a very strong showing by the employee that the risk arose out of the employment is necessary. Mundy, supra.

Mundy involved a tort action by a nurse against her employer for damages sustained when she was stabbed by an assailant in the hospital elevator while she was en route to report for her shift at her work station on an upper floor. The employer sought tort immunity under the Worker's Compensation Act. The Louisiana Supreme Court held that under an analysis of the course of employment and arising out of employment requirements of the Act, in light of the facts of the case, the employer failed to prove its entitlement to immunity.

The Mundy court, in assessing the arising out of employment requirement, found that the risk which gave rise to the injury was not greater for the nurse than for a person not so employed. Reasoning that the risk which gave rise to her injury was a neutral risk that was related neither to her employment nor to her personal life, the Court indicated that the arising out of employment showing by the employer, while not particularly strong, could be considered sufficient if there were a strong course of employment showing. Noting that the attack occurred before the employee arrived at her work station and began her shift under the supervision and control of her employer, and that the attack occurred in an elevator used by patients and visitors as well as employees, the Mundy Court found there was not a strong course of employment showing. The Court concluded that because the neutral nature of the risk from which the injury arose required a strong showing of course of employment, and because the evidence relative to time, place and employment activity provided only a relatively weak showing, the employer failed to meet its burden of proving entitlement to tort immunity.

In the instant case, the hearing officer apparently read Mundy as a retreat from the liberal interpretation our courts have historically given the arising out of and in the course of employment requirements in the Worker's Compensation Act. Relying on Mundy, the hearing officer reasoned that the risk of falling in Brookshire's parking lot was neutral in character, i.e., not greater for Mitchell than for any Brookshire patron and not particularly associated with Mitchell's employment; thus, a strong showing of course of employment would be required. Finding that Mitchell had clocked out and done some personal shopping, that she was not in her assigned work area but in an area used by both employees and patrons, and that she was no longer within the control or supervision of her employer, the hearing officer reasoned that there had been no strong course of employment showing. Thus, the hearing officer concluded that Mitchell's accident was not compensable.

We read Mundy more narrowly and find Mundy readily distinguishable from the instant case. We do not consider the risk that Mitchell encountered in Brookshire's parking lot to be neutral, i.e., unrelated to her employment. As a Brookshire employee, Mitchell encountered any hazardous or defective conditions that may have been present in Brookshire's parking lot more frequently than the general public or even Brookshire patrons. Her heightened exposure was due solely to her employment. Francisco v. Harris Management Co., 94-136 (La.App. 3d Cir. 10/05/94), 643 So.2d 386. A physical defect in the premises of the employer, as was the pothole in Brookshire's parking lot, is very different from an independent, random act of violence by an unknown third party, as was the case in Mundy. While a random act of violence could occur anywhere, a defect in the premises at the place of employment is peculiar and distinctive to that location. Bosse v. Westinghouse Electric, Inc., 93-1898 (La.App. 4th Cir. 05/17/94), 637 So.2d 1157, writ denied, 94-1623 (La. 09/30/94), 642 So.2d 878.

Here, the risk was intrinsic to Mitchell's place of employment. As an employee at that...