94-879 La.App. 3 Cir. 2/15/95, Pappas v. Marine Spill Response Corp. (MSRC)

• Decision Date: 15 February 1995
• Citation: 650 So.2d 441
• Parties: 94-879 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 441

650 So.2d 441

94-879 La.App. 3 Cir. 2/15/95

John PAPPAS, Plaintiff-Appellee, v. MARINE SPILL RESPONSE CORPORATION (MSRC) and Louisiana Workers' Compensation Corporation, Defendant-Appellant.

No. 94-879.

Court of Appeal of Louisiana Third Circuit.

Feb. 15, 1995.

Writ Denied May 5, 1995.

Robert Thomas Jacques Jr., Lake Charles, for John Pappas.

David Keith Johnson, Baton Rouge, for Marine Spill Response Corp. (MSRC).

Before KNOLL, SAUNDERS and AMY, JJ.

[94-879 La.App. 3 Cir. 1] SAUNDERS, Judge.

In this workers' compensation proceeding, the question is whether the employer should be required to pay its employee's medical expenses occasioned by a wholly unprovoked and sudden assault on an employee it assigned to attend a convention in New Orleans, Louisiana. [94-879 La.App. 3 Cir. 2] The hearing officer concluded that the employer is responsible for those medical expenses. We affirm.

FACTS

The facts are not in dispute. Claimant John Pappas was employed by Marine Spill Response Corporation (MSRC) as a communications technician. In that capacity, with supervisor Joe Matthews, plaintiff travelled to New Orleans to attend a work-related convention in March of 1993.

By stipulation, Pappas was not in New Orleans voluntarily, but was there for a convention sponsored by his employer during which he was compensated.

During the convention, Pappas and Matthews encountered business prospects and indicated that they, like other conventioneers, would visit Bourbon Street that evening after the convention. After the convention was over, Pappas and Matthews had dinner together then went to the Cat's Meow, which is a karaoke bar located on Bourbon Street. Although neither employee of MSRC made specific plans to meet anyone there on business, both believed that to be a good prospect.

Upon arriving at the Cat's Meow, they found a standing room only table in the rear of the bar and there befriended a Dutch couple. When the Dutch woman eventually volunteered to take the stage, Pappas joined the crowd in cheering on his new friend. En route to the stage, he possibly knocked over a beer bottle belonging to a patron or employee, prompting that individual to approach claimant.

With little or no notice, the assailant abruptly kicked Pappas in the groin resulting in medical expenses of some $1,600.00 upon his return home to Calcasieu Parish. This dispute followed.

[94-879 La.App. 3 Cir. 3] After the employer's motion for summary judgment was overruled, the matter proceeded to the merits. Only Pappas and Matthews testified. The hearing officer ruled in favor of the employee's claim for medical expenses, but rejected his allegations that MSRC was arbitrary and capricious in denying them.

OPINION

From the hearing officer's judgment in the employee's favor, the employer appeals, maintaining that the hearing officer erred in awarding claimant medical expenses. It argues that claimant's injuries did not occur in the course and scope of claimant's employment, but rather arose from a dispute unrelated to his employment.

The employer is responsible for workers' compensation benefits to its employee who is injured by an accident which occurs in the course of the employee's employment and arises out of the employment. LSA-R.S. 23:1031. The employer is also responsible for all necessary medical expenses arising from such injuries. LSA-R.S. 23:1203.

The question that presents itself in this dispute is whether the employee has demonstrated that his injury-producing accident occurred in the course and scope of his employment. For guidance, we turn to the Louisiana Supreme Court authority cited by the employer.

"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); W. Malone & H. Johnson, 13 Louisiana Civil Law Treatise--Worker's Compensation Sec. 161 (2d ed. 1980). While coverage has been extended in some cases to include accidents during times for rest or lunch periods or before and after work on the employer's premises, or to include accidents at places where employment duties are performed off the employer's premises, the principal criteria for determining course of employment are time, place and employment activity.

[94-879 La.App. 3 Cir. 4] "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. 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. Myers v. Louisiana Railway and Navigation Co., 140 La. 937, 74 So. 256 (1917). Moreover, an accident has also 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, Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932). 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. W. Malone & H. Johnson, supra at Sec. 193.

"The principal objective of the 'arising out of employment' requirement is to separate accidents attributable to employment risks, which form the basis of the employer's obligation under the compensation system, from accidents attributable to personal risks, for which the employer should normally not be responsible. 1 A. Larson, Workmen's Compensation Sec. 7.00 (1990). The risks which have caused the greatest difficulty are those that have neither a particular employment character nor a particular personal character. Id.

"This court has declined to view the 'course of employment' and 'arising out of employment' requirements as separate and unrelated concepts. Rather, this court has recognized the mutual interdependence of the two concepts in determining the relationship of the injury to the employment. See W. Malone & H. Johnson, supra at Sec. 144; 1 A. Larson, supra at Sec. 29.00, 29.10. In a close case a strong showing of 'course of employment' has been held to counterbalance a relatively weak showing of 'arising out of employment.' See Raybol v. Louisiana State University, 520 So.2d 724 (La.1988) (a custodial employee of a university, assaulted by a jilted lover while performing her regular employment duties during regular working hours in an unoccupied portion of a dormitory, was entitled to compensation because the 'course of employment' showing was clear, and the employee was so totally innocent of causing or inviting the attack that the assault could be viewed as perpetrated by a total stranger). 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. See 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 [94-879 La.App. 3 Cir. 5] attention to the neighbor's girlfriend, and the neighbor's shooting of the employee provided a weak 'arising out of employment' showing)."

Mundy v. Dept. of Health and Human Resources, 593 So.2d 346, 349-50 (La.1992). (Emphasis added.)

Because the "course and scope" requirements for employers seeking to avail themselves of tort immunity under LSA-R.S. 23:1032 are largely the same as those for employees seeking to recover workers' compensation benefits under LSA-R.S. 23:1031, development in the jurisprudence relating to one type of controversy is applicable to deal with the other. Thus, Mundy is relevant to the present dispute because in it the employer was denied its claims to tort immunity because the victim, a nurse assaulted on her way to work, had not met the prerequisites of LSA-R.S. 23:1031.

In Mundy, the court concluded that plaintiff, injured before arriving at her work station and before she began performing her job duties under her employer's supervision, was not in the course and scope of her employment at the time of her injuries. Id., citing Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969). ¹ Significantly, the outcome in Mundy would have been different had plaintiff made a sufficient showing that she was injured while acting in the course of her employment. ²

[94-879 La.App. 3 Cir. 6] "When the employee is clearly in the course of employment because he is actively engaged in the performance of his duties, preparing himself for his work, or taking a short permissible rest from his labors, his injury or death caused by the assault of a third person arises out of employment regardless of the nature of difficulty that prompted the attack or the identity of his assailant. See Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Gorings v. Edwards, 222 So.2d 530 (La.App. 4th Cir.1969); Powell v. Gold Crown Stamp Co., 204 So.2d 61 (La.App. 2d Cir.1967); Rogers v. Aetna Cas. & Surety Co., 173 So.2d 231 (La.App. 3rd Cir.), writ denied, 247 La. 723, 174 So.2d 133 (La.1965); Malone & Johnson, Workers' Compensation, Sec. 195. If, however, at the time of the aggression the victim was only barely within the course of his employment, it will be necessary and proper to determine whether the circumstances under which he worked enhanced the danger of assault. See Myers v. La. Ry. & Nav....