96-100 La.App. 3 Cir. 8/21/96, Kennedy v. Martin Gas Transp. Co., Inc.

• Decision Date: 21 August 1996
• Citation: 680 So.2d 1195
• Parties: 96-100 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1195

680 So.2d 1195

96-100 La.App. 3 Cir. 8/21/96

Robert J. KENNEDY, Plaintiff-Appellant, v. MARTIN GAS TRANSPORTATION COMPANY, INC., Defendant-Appellee.

No. 96-100.

Court of Appeal of Louisiana Third Circuit.

Aug. 21, 1996.

Rehearing Denied Oct. 25, 1996.

Louis Meraux Corne, Lafayette, for Robert Kennedy.

Terry Thibodeaux, Lake Charles, for Martin Gas Transportation.

Before SAUNDERS, AMY and GREMILLION, JJ.

[96-100 La.App. 3 Cir. 1] AMY, Judge.

This is a worker's compensation case. Plaintiff appeals from the hearing officer's decision that plaintiff's injuries did not arise in the course and scope of his employment. For the reasons which follow, we affirm.

DISCUSSION OF THE RECORD

Plaintiff, Robert Kennedy, was employed by defendant, Martin Gas Transportation Company, Inc. [Martin Gas], as a "relief driver" to drive one of Martin Gas' eighteen wheeler trucks when the "principal driver" finished his run for the day. On November 22, 1993, Kennedy, who lived in Jennings, Louisiana, was informed by a dispatcher for Martin Gas that he was to travel to Fuel Stop 36 at the Chloe Exit in Lake Charles, Louisiana, get the keys to the truck, travel to Westlake to pick up a load of sulphur, transport that load to Baton Rouge, and then return the truck to Lake Charles. Kennedy completed his work mission when he delivered the truck back to Fuel Stop 36 at approximately 2:00 a.m. on November 23, 1993. At that point, Kennedy proceeded to drive his own vehicle back home to Jennings. At about 2:45 [96-100 La.App. 3 Cir. 2] a.m., Kennedy ran into the rear of a tractor trailer in the east bound lane of Interstate 10, approximately nine miles west of Jennings. Kennedy suffered severe injuries as a result of this accident.

On May 11, 1994, Kennedy filed a claim against Martin Gas, requesting appropriate worker's compensation benefits. Martin Gas answered the action and denied liability, asserting that Kennedy was not in the course and scope of his employment when the accident happened. Kennedy and Martin Gas submitted this matter to the hearing officer on written briefs and depositions. On November 16, 1995, the hearing officer decided that Kennedy was not in the course and scope of his employment at the time of the accident and, thus, not entitled to worker's compensation benefits. Specifically, the hearing officer stated that "Mr. Kennedy was traveling from work at his own expense and this Court believes his employment relationship was suspended from the time he left the eighteen wheeler in route to his home until he would resume his work at some other time."

Kennedy appeals and asserts that the hearing officer erred in finding that he was not in the course and scope of his employment with Martin Gas when he was injured in the accident. Kennedy argues that he was in the course and scope of his employment with Martin Gas when the accident occurred because he was "an employee who traveled in response to instructions from his employer's dispatcher and then performed services" and that the "travel was in furtherance of the employer's business and the risk of accident during the travel was a risk interrelated with the nature of the employment."

Martin Gas, on the other hand, asserts that Kennedy was hired to report to one of several sites in Lake Charles, Louisiana, and that he was not compensated for his transportation to and from work. Martin Gas points out that Kennedy was injured [96-100 La.App. 3 Cir. 3] while traveling from where his work mission ended (Lake Charles) to his home (Jennings) when he was injured in the accident. Accordingly, Martin Gas argues, the hearing officer did not err in finding that Kennedy was not in the course and scope of employment when he was injured. We agree.

LAW

La.R.S. 23:1031(A), which sets forth the extent of worker's compensation liability for an employer, states:

If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

An employee seeking worker's compensation benefits must prove by a preponderance of the evidence that an accident occurred within the course and scope of his employment. Clinton v. American Mutual Liability Insurance Co., 422 So.2d 570 (La.App. 3 Cir.1982). In Guillory v. Interstate Gas Station, 94-1767 (La. 3/30/95), 653 So.2d 1152, 1154, the Louisiana Supreme Court discussed La.R.S. 23:1031:

The terms "arising out of" and "in the course of" constitute a dual requirement. The former suggests an inquiry into the character or origin of the risk while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. [Citations omitted.]

See also Franciso v. Harris Management Company, 94-136 (La.App. 3 Cir. 10/5/94), 643 So.2d 386.

[96-100 La.App. 3 Cir. 4] Generally, an employee who has an accident while traveling to and from work is not in the course and scope of employment and, thus, is not entitled to worker's compensation benefits. See Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975); Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404; writ not considered, 96-100 (La. 3/8/96), 669 So.2d 404; Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3 Cir. 6/1/94), 638 So.2d 1118, writ denied, 94-2200 (La. 11/18/94), 646 So.2d 379; Folse v. American Well Control, 536 So.2d 686 (La.App. 3 Cir.1988), writ denied, 538 So.2d 592 (La.1989). "This rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work." Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619 (La.App. 2 Cir.1990), writ denied, 572 So.2d 92 (La.1991). "Moreover, an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination." Orgeron ex rel. Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 227. Requiring an employee to show up for work does not make the employee's transportation incidental to the employment contract. Guidry v. Chevron U.S.A., Inc., 461 So.2d 625 (La.App. 1 Cir.1984).

However, there are exceptions to this general rule. In reviewing this area of our jurisprudence, the second circuit in Yates, 569 So.2d at 619-620, observed:

[T]his rule has been subject to a number of jurisprudentially established exceptions. For example, these exceptions have arisen:

(1) If the accident happened on the employer's premises;

(2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer's business or pursuant to his employer's order;

[96-100 La.App. 3 Cir. 5] (3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;

(4) If the employee was doing work for his employer under circumstances where the employer's consent could be fairly implied;

(5) If the employee was hurt while traveling to and from one work site to another;

(6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee, also known as the threshold doctrine; and,

(7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.

Michaleski v. Western Preferred Casualty Company, 472 So.2d 18 (La.1985); Hughes v. Gearhart Industries, Inc., 552 So.2d 717 (La.App. 1st Cir.1989), writ denied, 556 So.2d 1280 (La.1990); Justice v. Sylvester, 499 So.2d 590 (La.App. 5th Cir.1986), writ denied, 503 So.2d 491 (La.1987); Guidry v. Chevron U.S.A., Inc., 461 So.2d 625 (La.App. 1st Cir.1984), Smith v. A.I.U. Insurance Company, 457 So.2d 868 (La.App. 3d Cir.1984); Johnson v. Aetna Casualty & Surety Company, 387 So.2d 1340 (La.App. 1st Cir.1980), writ denied, 393 So.2d 746 (La.1980); Castille v. Sibille, 342 So.2d 279 (La.App. 3d Cir.1977), and Gardner v. Industrial Indemnity Company, 212 So.2d 452 (La.App. 1st Cir.1968).

See also Francisco v. Energy Drilling Co., 26,233 (La.App. 2 Cir. 10/26/94), 645 So.2d 796, 798-799.

Factual findings of the hearing officer in a worker's compensation case are reviewed under the manifest error standard of review. Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95), 657 So.2d 449. The manifest error standard of review applies in a worker's compensation proceeding even though the evidence before the hearing officer consists solely of written reports, records, and depositions. Benoit v. Martco Partnership, 94-1544 (La.App. 3 Cir. 5/3/95), 657 So.2d 210. In order for an appellate court to set aside a hearing officer's factual findings, the appellate court must conclude from the record that a reasonable factual [96-100 La.App. 3 Cir. 6] basis did not exist for the hearing officer's findings and that these findings were clearly wrong. Comeaux, 657 So.2d 449.

Robert Kennedy testified, through deposition, that he had worked for Martin Gas approximately a month and a half before he suffered the accident in November 1993. Kennedy stated that he was employed as a relief driver for Martin...