96 2705 La.App. 1 Cir. 11/7/97, Brown v. Coastal Const. & Engineering, Inc.

• Decision Date: 07 November 1997
• Parties: 96 2705 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 8

704 So.2d 8

96 2705 La.App. 1 Cir. 11/7/97

John B. BROWN v. COASTAL CONSTRUCTION & ENGINEERING, INC., et al.

No. 96 CA 2705.

Court of Appeal of Louisiana,

First Circuit.

Nov. 7, 1997.

Walter A. Bond, Baton Rouge, for Defendant/Appellant Coastal Construction & Engineering.

E. Scott Hackenberg, Baton Rouge, for Plaintiff/Appellee John Brown.

Before CARTER, GONZALES and WHIPPLE, JJ.

[96 2705 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal by Coastal Construction & Engineering (Coastal) from a judgment rendered by the Workers' Compensation judge awarding claimant, John Brown (Brown) maximum weekly Temporary Total Disability (TTD) benefits and medical benefits. The only issue on appeal is whether claimant was in the course and scope of his employment at the time of his accident.

FACTS

On August 7, 1995, Brown was injured in an automobile accident which occurred at approximately 6:25 a.m. as he was traveling from New Iberia to Lafayette on Highway 90. Brown was employed as a surveyor by Coastal which had three job sites operating in Lafayette at the time.

Brown's residence was in Denham Springs, and he spent the night before the accident with his family at his residence. On other occasions, Brown spent some nights of the week at a motel in New Iberia to reduce his trips back and forth from Denham Springs to the Coastal job sites in Lafayette. Brown usually provided transportation for his co-worker, Steve Shatoska (Shatoska) (who stayed in the motel), to the job sites and used the motel room to store the equipment to be used. On the morning of August 7, 1995, when Brown arrived at the New Iberia motel, Shatoska indicated he was not going to work due to illness. Brown then proceeded to load the Coastal equipment into his truck and drive towards Lafayette. The accident occurred when another vehicle pulled across Highway 90 in front of Brown's truck.

Brown filed a claim for workers' compensation benefits. The parties stipulated to all matters except whether Brown was within the course and scope of his employment for Coastal at the time of the accident. After trial, the workers' compensation judge held Brown was within the course and scope of employment at the time of the automobile accident and awarded Brown weekly TTD benefits and medical expenses.

Coastal filed a suspensive appeal with the following assignments of error:

1. When an individual is injured in an automobile accident, prior to the start of the work day, while traveling in his personal truck, without being reimbursed, the Office of Workers' Compensation [judge] committed legal error in failing to consider if the accident "arose out of" and "in the course of" his employment.

[96 2705 La.App. 1 Cir. 3] 2. When an individual is injured in an automobile accident at 6:25 a.m. while traveling in his personal truck, without being reimbursed, from his home to a construction site where he was to begin working at 7:00 a.m., the Office of Workers' Compensation [judge] committed manifest error in holding that the individual was within the course and scope of his employment at the time of the accident.

COURSE AND SCOPE OF EMPLOYMENT

LSA-R.S. 23:1031 provides in pertinent part:

If an employee ... 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 hereafter designated.

As a general rule, accidents which occur while an employee is traveling to and from work are not considered as having occurred during the course of employment and therefore are not compensable. 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. However, this rule has been subject to a number of jurisprudentially established exceptions. Some of these are as follows:

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;

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 while 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.

Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619 (La.App. 2nd Cir.1990), writ denied, 572 So.2d 92 (La.1991), citing Michaleski v. Western Preferred Casualty Company, 472 So.2d 18, 20 (La.1985); Hughes v. Gearhart Industries, Inc., 552 So.2d 717, 719 (La.App. 1st Cir.1989), writ denied, 556 So.2d 1280 (La.[96 2705 La.App. 1 Cir. 4] 1990); Justice v. Sylvester, 499 So.2d 590, 592-93 (La.App. 5th Cir.1986), writ denied, 503 So.2d 491 (La.1987); Guidry v. Chevron U.S.A., Inc., 461 So.2d 625, 626 (La.App. 1st Cir.1984); Smith v. A.I.U. Insurance Company, 457 So.2d 868, 869 (La.App. 3rd Cir.1984); Johnson v. Aetna Casualty & Surety Company, 387 So.2d 1340, 1342 (La.App. 1st Cir.), writ denied, 393 So.2d 746 (La.1980); Castille v. Sibille, 342 So.2d 279, 280-81 (La.App. 3rd Cir.1977); Gardner v. Industrial Indemnity Company, 212 So.2d 452, 454-55 (La.App. 1st Cir.1968).

The same standard of review applicable to factual findings of district courts is also applicable to factual findings of a workers' compensation judge. In workers' compensation cases, the appropriate standard of review to be applied by appellate courts is the "manifest error-clearly wrong" standard. Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94); 630 So.2d 706, 710. For an appellate court to reverse a workers' compensation judge's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers' compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v....