Scarlet C. Adams v. Temple Inland - Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-187

SCARLET CHRISTINE ADAMS

VERSUS

TEMPLE INLAND, LA

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3,
PARISH OF CALCASIEU, NO. 01-06875,
HONORABLE CHARLOTTE L. BUSHNELL,
WORKERS’ COMPENSATION JUDGE

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NED E. DOUCET, JR.
CHIEF JUDGE
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Court composed of Ned E. Doucet, Jr., Chief Judge, Billie Colombaro Woodard and
Jimmie C. Peters, Judges.

AFFIRMED.

Woodard, J. concurs and assigns written reasons.

Peters, J., dissents and assigns written reasons.

R. Scott Iles
P. O. Box 3385
Lafayette, LA 70502
COUNSEL FOR PLAINTIFF/APPELLANT:
Scarlet Christine Adams

Mark L. Riley
Onebane Law Firm
P. O. Drawer 3507
Lafayette, LA 70502
COUNSEL FOR DEFENDANT/APPELLEE:
Temple Inland, LA

DOUCET, Chief Judge.

In this workers’ compensation case, Claimant, Scarlet Christine Adams, appeals

a judgment denying her claim for benefits in connection with her mental injury caused

by mental stress due to sexual harassment in the course of her employment. For the

following reasons, we affirm the judgment of the Workers’ Compensation Judge

(WCJ).

DISCUSSION OF THE RECORD

At the beginning of trial, the parties stipulated that there were no facts in

dispute and that the matter presented only a legal issue.

The undisputed facts establish that Ms. Adams began working for Temple

Inland, LA (Temple Inland) in late 2000 or early 2001 as a utility hand. Almost

immediately after she began her employment, her supervisor, David James “Red”

Harper, and a co-worker, Kevin St. Romain, began sexually harassing her. Initially,

the harassment took the form of “little comments in front of all the . . . guys in the

break room.” For example, when Ms. Adams would bend over, Harper and St.

Romain would talk about “what they would like to do.” Another co-worker, Syrina

Silas, also began making comments to Ms. Adams’s male co-workers that Ms. Adams

was not married and “needed to be laid.” Harper carried the harassment even further

by requiring Ms. Adams to leave her workstation at times and spend time in his office.

There, he would describe to her the various ways in which he wanted to have sex with

his wife and would complain about his wife’s unwillingness to engage in these sexual

activities.

It did not take long for Harper’s and St. Romain’s harassment to escalate

beyond vulgar comments to propositions and threats. When Ms. Adams began

refusing to enter Harper’s office with him, he warned her that he could make her job

easy or difficult. He also began propositioning Ms. Adams to have sex with him,

which she refused to do. Despite her rejection of his advances, Harper continued to

press Ms. Adams for sexual favors, explaining to her that her job would be in jeopardy

if she did not submit. Additionally, in the presence of Ms. Adams’s co-workers,

Harper “offered to get a hotel room so the guys could get [her] out of their system.”

On at least one occasion, Harper required Ms. Adams, who worked the night shift, to

stay late for clean-up duties and threatened to take her to a place where no one would

be able to hear her screams and then rape her. Ms. Adams’s fears in this regard were

exacerbated by a rumor that Harper had sexually exploited another female employee

by having sex with her in the sleeper cab of a truck at work and then requiring her to

give sexual favors to other men at work, under the threat of job loss. St. Romain also

threatened to rape her and to burn her house down.

Moreover, the sexual harassment by Harper and St. Romain turned physical as

well. Harper confined Ms. Adams to “areas where he could just get to [her],” and “he

would pin [her] in a corner, and [she] would get felt up.” Additionally, Harper “would

grab himself and ask [her] if [she] wanted some.” St. Romain also groped Ms. Adams.

In June of 2001, Ms. Adams reported the harassment to Temple Inland’s human

resources department. To its credit, shortly thereafter, Temple Inland terminated

Harper’s employment and suspended and then transferred St. Romain and Ms. Silas.

The sexual harassment resulted in Ms. Adams developing psychological

problems. Prior to the harassment, Ms. Adams had not had such problems nor had she

ever seen a counselor or mental health professional. In July of 2001, Ms. Adams saw

Dr. Charlotte M. Fowler, a family practitioner, at the DeRidder Family Health Clinic.

Dr. Fowler diagnosed anxiety and prescribed medication. Additionally, Dr. Fowler

reported that Ms. Adams “must find counseling [for] this tremendous amount of stress

2

and trauma that she is handling.”

On July 24, 2001, and August 22, 2001, Ms. Adams saw Dr. David S. Post, a

clinical psychologist, for evaluation of psychological problems arising from the

harassment at Temple Inland. Following psychological evaluation and testing, Dr.

Post determined that Ms. Adams was “suffering from severe traumatic anxiety as a

result of her harassment on the job” and diagnosed her as having acute stress disorder

with agoraphobia and depressive disorder. Dr. Post cautioned that Ms. Adams was

“at high risk for developing major depressive disorder if her conditions [did] not

improve.” He recommended that Ms. Adams leave her employment with Temple as

soon as possible and that she be evaluated for a trial of anxiolytic and antidepressent

medication should her anxiety disorder continue. Thereafter, by letter dated

September 5, 2001, Dr. Post advised Temple Inland of Ms. Adams’s condition “due

to unusual treatment in her work environment.” Dr. Post also informed Temple Inland

that he had advised Ms. Adams “that she must take an immediate medical leave of

absence from work in order to prevent serious deterioration of her mental and physical

health.”

Ms. Adams discontinued working and filed a claim for compensation benefits

for mental injury from the sexual harassment as well as for an unrelated elbow injury.

The parties stipulated at the hearing that there was an injury to Ms. Adams’s elbow

for which Temple Inland was continuing to provide medical treatment. At the hearing

on the claim, the sole issue before the WCJ was the compensability of the claim for

benefits arising out of the sexual harassment.

The WCJ rendered judgment in favor of Temple Inland and dismissed Ms.

Adams’s claim, finding as follows:

The court found that the claimant failed to prove her injury was caused

3

by a sudden, unexpected and extraordinary situation; in fact, it was due
to events that occurred over an extended period of time, not by a sudden,
unexpected or extraordinary event. Claimant testified that the various
events and occurrences of sexual harassment stretched from January
2001 to June 2001. Based on the testimony presented, the court is
unable to identify a “sudden, unexpected and extraordinary” occurrence.
This court by no means condones the behavior of the defendants’
employees; however, this claim does not meet the conditions established
under the Workers’ Compensation Act to be a compensable claim.

Ms. Adams has appealed this judgment, contending that the WCJ erred in concluding

that, because the sexual harassment occurred over an extended period of time, her

mental injury is not compensable.

DISCUSSION OF THE LAW

Louisiana Revised Statutes 23:1021(7)(b) (Emphasis added) provides as

follows concerning a “mental/mental” claim:

Mental injury caused by mental stress. Mental injury or illness
resulting from work-related stress shall not be considered a personal
injury by accident arising out of and in the course of employment and is
not compensable pursuant to this Chapter, unless the mental injury was
the result of a sudden, unexpected, and extraordinary stress related to
the employment and is demonstrated by clear and convincing evidence.

In Pham v. Contico Int'l, Inc., 99-945, pp. 5-6 (La.App. 5 Cir.3/22/00), 759

So.2d 880, 882-83 (footnotes omitted)(emphasis added), our brethren of the fifth

circuit pointed out the following:

We note that the exclusive remedy provisions of R.S. 23:1032 do not
grant an employer immunity from all tort suits by an employee simply
by virtue of the employment relationship between the two. This State
recognizes an employee's cause of action against an employer for the
torts of wrongful or retaliatory discharge, sexual harassment, and false
accusation, false imprisonment, and defamation. Therefore, the statutory
immunity granted to an employer by LSA-R.S. 23:1032 is not an
immunity from all tort suits by an employee, but only those on account
of an injury or disease compensable under the workers' compensation
statutory scheme.

Additionally, we note the case of Sidwell v. Horseshoe Entm't Ltd. P'ship.,

35,718 (La.App. 2 Cir.2/27/02), 811 So.2d 229. In Sidwell the Claimant alleged that

4

she was sexually harassed by being subjected to repeated sexual comments by a co-

worker who also showed her a nude picture of himself. The court, in Sidwell, noted

the following:

Mental injuries caused by mental stress have become commonly
known in Louisiana workers' compensation jurisprudence as
"mental/mental" injuries and are addressed by La. R.S. 23:1021(7)(b),
which states as follows:

Mental injury or illness resulting from work-related
stress shall not be considered a personal injury by accident
arising out of and in the course of employment and is not
compensable pursuant to this Chapter, unless the mental
injury was the result of a sudden, unexpected, and
extraordinary stress related to the employment and is
demonstrated by clear and convincing evidence. (Emphasis
added).

The mental injury must be precipitated by an accident, an
unexpected and unforeseen event that occurs suddenly or violently.
Edwards v. Fischbach & Moore, Inc., 31,371 (La.App.2d Cir.12/09/98),
722 So.2d 344, citing Sparks v. Tulane Medical Center Hosp. and Clinic,
546 So.2d 138 (La.1989). The mere showing that a mental injury was
related to general conditions of employment, or to incidents occurring
over an extended period of time, is not enough to justify compensation.
Sparks, supra; Edwards, supra. Absent an identifiable accident, general
allegations of inability to work due to stress or tension caused by
working conditions would not give rise to a compensable claim. Id.

Id. at 231.

In the recent case of Partin v. Merchants & Farmers Bank, 01-1560 (La.

3/11/02), 810 So.2d 1118, the claimant alleged that she suffered a compensable mental

injury when her employer (a bank) demoted her after eighteen years of employment

on the basis that she lacked managerial skills. The OWC awarded benefits and this

court affirmed. The supreme court noted that, while the claimant personally found the

demotion to be extraordinary and unexpected because she did not know that her

employer was displeased with her and because she was quite settled in her career, “by

its nature, a demotion for failing to satisfactorily perform one’s job creates stress that

5

is neither unexpected nor extraordinary in the usual course of employment at a bank.”

Id. at 1126. The court explained that “[a] personnel action is not necessarily

extraordinary because it is unfair from the employee’s point of view.” Id. The

supreme court went into great detail in analyzing the LAW applicable to

“mental/mental” claims stating as follows:

Prior to 1989, Louisiana courts were split on whether mental
injuries caused solely by mental stress (known as "mental/mental"
claims) were compensable under the Workers' Compensation Act. At
that time, the term "injury" was defined in subsection 1021(7) of the Act,
which stated:

"Injury" and "personal injuries" include only injuries
by violence to the physical structure of the body and such
disease or infections as naturally result therefrom. These
terms shall in no case be construed to include any other
form of disease or derangement, however caused or
contracted.

La. R.S. 23:1021(7) (1989). To remedy this split in the courts, a
bill was proposed in the state legislature that eliminated the
compensability of mental/mental claims. Minutes of Meeting, House
Committee on Labor and Industrial Relations 15 16, May 26, 1989, Reg.
Sess. 1989. It retained the text of subsection 1021(7) but redesignated
it as 1021(7)(a), and then added subsection 1021(7)(b), which stated:

(b) Mental injury caused by mental stress.
Mental injury or illness resulting from work-related stress
shall not be considered a personal injury by accident arising
out of and in the course of employment and is not
compensable pursuant to this Chapter.

H.B. No. 1431, Reg. Sess. 1989 (original version). This
amendment was proposed along with many other amendments to the
Workers' Compensation Act, which were presented together as House
Bill No. 1431. The stated purpose of HB 1431 was to address the
problem of employers' increased liability in many areas, including
mental injury claims. House Minutes, supra at 15. The bill's author
explained that the bill addressed the "crisis" in Louisiana regarding
workers' compensation insurance: Louisiana had the sixth highest
workers' compensation insurance rate in the United States, which
prevented new businesses from being able to obtain the insurance.
Minutes of Meeting, Senate Committee on Labor and Industrial
Relations 4, June 7, 1989, Reg. Sess. 1989 A proponent of the bill
explained that the bill addressed the fact that Louisiana courts had been

6

ignoring much of the language in the Workers' Compensation Act, and
that if the laws had been interpreted as they were written, constant
changes would not be necessary. House Minutes, supra at 18. He stated
that the bill was meant to statutorily override cases that had liberalized
the workers' compensation law regarding mental stress and heart attacks,
and to impose more difficult tests in order to recover. Senate Minutes,
supra at 5.

The proposed language in subsection 1021(7)(b) regarding
mental/mental claims passed the house on June 1, 1989. Official Journal
of the House of Representatives of the State of Louisiana, Twenty-Ninth
Day's Proceedings 30, Reg. Sess. 1989, June 1, 1989. Twelve days later,
however, the Senate adopted an amendment which added a clause to
subsection 1021(7)(b) that made mental/mental claims compensable in
certain circumstances. Official Journal of the Senate of the State of
Louisiana, Twenty-Ninth Day's Proceedings 14, Reg. Sess. 1989, June
13, 1989. The added clause is indicated below with underlined text:

(b) Mental injury caused by mental stress.
Mental injury or illness resulting from work-related stress
shall not be considered a personal injury by accident arising
out of and in the course of employment and is not
compensable pursuant to this Chapter, unless the mental
injury was the result of a sudden, unexpected, and
extraordinary stress related to the employment and is
demonstrated by clear and convincing evidence.

Id. This amendment was adopted by the house on June 21, 1989,
and the bill passed the legislature with the added language that
mental/mental claims were not compensable except under those limited
circumstances. House Journal, supra, Forty-Third Day's Proceedings at
30, June 21, 1989. The governor signed HB 1431 on June 30, 1989, and
it became effective as Act 454 of 1989 on January 1, 1990. 1989 La.
Acts 434.

During the window of time between the enactment of HB 1431
and its effective date, this court held that a mental/mental claim was
compensable as an "injury" under the pre-amendment version of La.
R.S.23:1021(7) in Sparks v. Tulane Med. Center Hosp. & Clinic, 546
So.2d 138 (La.1989) (decided on September 11, 1989). Our decision
today, though, is governed by the new, amended version of the law
governing mental/mental claims found at La. R.S. 23:1021(7)(b), as
quoted above. Subsection 1021(7)(a) (which was previously designated
as subsection 1021(7)) is no longer at issue because the new law
specifically provides for mental/mental claims in subsection 1021(7)(b).

In a mental/mental claim, a claimant must not only satisfy
subsection 1021(7)(b), but also the general requirements for recovery
under the Workers' Compensation Act, found in La. R.S. 23:1031.

7

Section 1031 limits recovery under the Act to situations where "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." La. R.S. 23:1031 (emphasis added). We note that
subsection 1021(7)(b) incorporates this entire emphasized phrase into its
definition of mental injury, stating that a mental injury or illness
resulting from work-related stress shall not be considered a "personal
injury by accident arising out of and in the course of his employment "
and is not compensable unless the mental injury resulted from a sudden,
unexpected, and extraordinary stress related to the employment. In
contrast, subsection 1021(7)(a) does not contain this language, but
simply defines "injury" and "personal injuries" as injuries by violence to
the physical structure of the body and their naturally-resulting diseases
or infections. La. R.S. 23:1021(7)(a). Yet, by incorporating the
language from section 1031 into subsection 1021(7)(b), we do not think
that the legislature intended the requirement of "sudden, unexpected, and
extraordinary stress related to the employment" to satisfy the whole of
"personal injury by accident arising out of and in the course of
employment." Our conclusion is supported by the legislative history of
subsection 1021(7)(b). As discussed above, the house originally
intended for subsection 1021(7)(b) to preclude the compensability of all
mental/mental claims. It accomplished this by referring to the basic
requirements of compensability under section 1031 in a peremptory
statement that "a mental injury or illness resulting from work-related
stress shall not be considered a personal injury by accident arising out
of and in the course of employment and is not compensable pursuant to
this Chapter." H.B. No. 1431, Reg. Sess. 1989 (original version)
(emphasis added). However, when the senate later chose to amend that
subsection and make mental/mental claims compensable in certain
limited circumstances, it merely tacked on an "unless" clause to the end
of the original language, rather than redrafting the entire subsection.
Senate Journal, supra, Twenty Ninth Day's Proceedings at 14, June 13,
1989. The logical deduction is that the legislature did not intend to
displace the basic requirements of accident, arising out of employment,
and in the course of employment in mental/mental claims. Rather, the
legislature intended to provide narrow circumstances under which
mental/mental claims would be compensable, assuming that the
requirements of accident, arising out of employment, and in the course
of employment were also satisfied. Therefore, a mental/mental claimant
must fulfill both the requirements in section 1031 and those in subsection
1021(7)(b) in order to recover.

For the reasons below, we conclude that Claimant's injury fails to
meet the requirements of subsection 1021(7)(b). Because her failure to
meet the requirements of subsection 1021(7)(b) precludes Claimant's
recovery for her mental/mental claim, it is not necessary to also discuss
whether the requirements of section 1031 are met.

In analyzing Claimant's injury under subsection 1021(7)(b), we

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first note that this subsection states in part that a mental injury or illness
resulting from work-related stress shall not be considered a personal
injury by accident arising out of and in the course of employment and is
not compensable unless the mental injury was the result of a sudden,
unexpected, and extraordinary stress related to the employment and is
demonstrated by clear and convincing evidence. Claimant contends that
the stress brought on by her demotion was unexpected and extraordinary
because Claimant's career at the bank was well-established and
successful, Claimant was close to reaching retirement, and the demotion
was not a known, scheduled event. Claimant testified that she in no way
expected this demotion because she assumed the bank was satisfied with
her written explanation of the incident involving the five dollars, and
because she had no prior indications that the bank was dissatisfied with
her performance as a manager. Nevertheless, we find that, even under
the facts as presented by Claimant, this demotion does not fit the
meaning of unexpected and extraordinary stress under subsection (7)(b).

Although subsection (7)(b) falls under the "definitions" subpart of
the Workers' Compensation Act, it reads more like a declaration of the
conditions under which a mental injury will be compensable. In this
way, it is not so much a definition of mental injury as it is a definition of
compensable mental injury. Under the statute, a mental injury is
compensable depending upon the type of stress which triggers that
injury. The legislative history of subsection (7)(b), outlined above,
reveals an active decision on the part of the legislature to so condition
compensability in order to tighten the reigns of recovery for
mental/mental claims. The desire for more difficult tests and restricted
recovery indicates that the legislature intended that the nature of the
stress itself be evaluated, rather than the stress being evaluated from the
employee's perspective. This of course differs from the determination of
whether an "event" was unexpected or unforseen under the accident
requirement of subsection 1021(1), which is made by viewing the event
from the employee's perspective. See Williams, 546 So.2d at 156; Parks
v. Insurance Co. of N. Am., 340 So.2d 276, 281 (La.1976); Ferguson v.
HDE, Inc., 270 So.2d 867, 870 (La.1972). Yet we find that this different
evaluation of the "stress" under subsection 1021(7)(b) is mandated by the
legislative intent. If the stress were evaluated from the employee's
perspective, much wider recovery would result under subsection (7)(b)
because nearly every employee would consider extraordinary a stress
that caused him mental injury. Although Louisiana courts have
construed the terms of the Workers' Compensation Act liberally in light
of its "beneficient purpose of relieving workmen of the economic burden
of work-connected injuries by diffusing the costs in channels of
commerce," there is a legislative intent to the contrary in subsection
(7)(b). Sparks, 546 So.2d at 146 (quoting Parks v. Insurance Co. of N.
Am., 340 So.2d 276, 281 (La.1976)). The most likely inference is that
the legislature intended to restrict recovery under subsection (7)(b) to
those mental injuries that result from stresses which, by their nature, are
sudden, unexpected, and extraordinary in the usual course of

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employment in that working environment.

Given its proper and necessary interpretation, it is evident that the
new law under subsection 1021(7)(b) addresses the concerns previously
expressed by this and other Louisiana courts. Before subsection
1021(7)(b) took effect and provided an express statutory basis for
mental/mental claims, courts struggled to find a place for such claims
under what was then subsection 1021(7), which basically restricted
"injuries" to those caused by violence to the physical structure of the
body. See, e.g., Sparks v. Tulane Med. Center Hosp. & Clinic, 546 So.2d
138 (La.1989); Jones v. City of New Orleans, 514 So.2d 611 (La.App.
4 Cir.1987); Guillot v. Sentry Ins. Co., 472 So.2d 197 (La.App. 5
Cir.1985); Taquino v. Sears, Roebuck and Co., 438 So.2d 625 (La.App.
4 Cir.1983). Sparks reasoned that mental/mental claims were
compensable under the old law because there was violence in the form
of a harmful effect on the physical structure of the body, which includes
the complex of integrated and interdependent bones, tissues and organs
that function together by means of electrical, chemical and mechanical
processes. Sparks, 546 So.2d at 145-46 (quoting Bailey v. American
Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318 (1955)). In doing so,
the Sparks court was also aware of the potential problems that could
result if every claim of mental injury were compensable. While the strict
language in subsection 1021(7) did not appear to lend itself to a
limitation on the compensability of mental/mental claims, the "accident"
requirement did. The court stated:

[A] mere showing that a mental injury was related to the
general conditions of employment, or to incidents
occurring over an extended period of time, is not enough to
entitle the claimant to compensation. The mental injury
must be precipitated by an accident, i.e., an unexpected and
unforeseen event that occurs suddenly or violently.

Sparks, 546 So.2d at 147 (emphasis in original). Under the new
law, it is not necessary to limit mental/mental claims through the
accident requirement as was appropriately done under the old law in
Sparks. The new law provided in subsection 1021(7)(b) supplies its
own limitation by disallowing compensation for mental injuries unless
they result from stress that, by its nature, is sudden, unexpected, and
extraordinary in the usual course of employment in that working
environment. Although the accident requirement must still be fulfilled
as explained above, the limitation on claims should now be found in
subsection 1021(7)(b).

Partin, 810 So.2d at 1122-26 (Underlining ours).

In the instant case, the WCJ determined that, because there was not a

single ,unexpected, and extraordinary “event” that caused Ms. Adams’s mental injury

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but rather “various events and occurrences of sexual harassment” that had “occurred

over an extended period of time,” Ms. Adams failed to prove that her mental injury

was compensable.

The most recent case we have found addressing alleged sexual harassment is

Morris and Dickson Co. Ltd. v. Killingworth, 36,117 (La.App. 2 Cir. 10/4/02), 830

So.2d 332, writ denied, 03-71 (La. 3/28/03), 840 So.2d 571. In Morris and Dickson,

their employee, Deborah Killingworth, resigned stating she was unable to work due

to depression, anxiety attacks and other health problems which resulted from an

incident on April 14, 2000, when she was sexually harassed by a male co-worker.

Following her resignation she sued Morris and Dickson in federal court alleging

sexual harassment and retaliation, both violations of Title VII of the Civil Rights Act

of 1964. In response to her suit, Morris and Dickson “filed a disputed claim form with

the Office of Workers' Compensation ("OWC"), alleging a bonafide dispute with

regard to Killingworth's injuries.” Id. at 333. Killingworth answered the workers’

compensation action with an exception of lack of subject matter jurisdiction which

was denied by the OWC. On review of Ms. Killingworth’s writ application, the

second circuit reversed the judgment of the OWC stating:

Killingworth contends the OWC does not have jurisdiction over
her sexual harassment claim because it is outside of the scope of the
Louisiana Workers' Compensation Act, ("WCA"), i.e., LSA-R.S.
23:1021 et seq. . . . M & D asserts that the judgment simply allows the
employer the statutory right to proceed with a bonafide dispute of an
on-the-job mental injury and the ability to conduct discovery to defend
such a claim in the only arena at their disposal. We disagree. The
weakness of M & D's argument lies in the failure to recognize the
distinction drawn in Louisiana law between claims that arise under the
state workers' compensation law and claims that arise under other
statutes and authorities.

....

[A] state law basis for refuting M & D' s claim is provided by LSA-R.S.

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23:1032(B), which states:

Nothing in the Chapter shall affect the liability of the
employer, or any officer, director, stockholder, partner, or
employee of such employer or principal to a fine or penalty
under any other statute or the liability, civil or criminal,
resulting from an intentional act. (Emphasis added.)

Under the applicable statutory authority, Killingworth's sexual
harassment claim is not within the scope of this state's workers'
compensation law. Therefore, we find that the OWC does not have
jurisdiction over this claim.

While we deplore the conduct of Ms. Adams’ co-workers, we do note that as

soon as she reported their offending actions to management, her chief protagonist was

fired and the other two, lesser offenders, were first suspended, then transferred. Our

review of the statutory scheme and the jurisprudence convinces us that, while Ms.

Adams may have a legal remedy for the mental injury she sustained, that remedy does

not lie under the Workers’ Compensation Act.

Accordingly, for the reasons stated above, the judgment of the OWC is

affirmed. Inasmuch as Claimant is before us as a pauper, we pretermit the assessment

of costs.

AFFIRMED.

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NUMBER 03-187

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

SCARLET CHRISTINE ADAMS

Plaintiff - Appellant

Versus

TEMPLE INLAND, LA

Defendant - Appellee

On appeal from the Office of Workers Compensation, District 3 [No. 01-6875],
for the Parish of Calcasieu, State of Louisiana; the Honorable Charlotte L. Bushnell,
Workers’ Compensation Judge, presiding.

Woodard, J., concurring.

While I find that Partin v. Merchants & Farmers Bank1 mandates that we
dismiss Ms. Adams’ claim, I respectfully disagree with our supreme court’s
interpretation, in that case, of the legislature’s intent in La.R.S. 23:1021 (7)(b), which,
expressly, makes a mental/mental injury compensable.
As the supreme court recognizes in Partin, before 1989, the Workers’
Compensation laws did not, specifically, address mental/mental claims. Nonetheless,
some lower courts had considered them to be compensable. However, other lower
courts had found that the workers’ compensation laws did not encompass such claims.
Thus, attempting to remedy the split in these courts, the legislature added an express
provision concerning mental/mental claims. As originally drafted, the provision,
eliminated mental/mental claims from the scope of the workers’ compensation laws.2
It read:

1
01-1560 (La. 3/11/02), 810 So.2d 1118.
2
See Id.

(b) Mental injury caused by mental stress. Mental injury or illness
resulting from work-related stress shall not be considered a personal
injury by accident arising out of and in the course of employment and is
not compensable pursuant to this Chapter.

However, the legislature did not adopt the provision as written. Instead, the
Senate added the following to it:

unless the mental injury was the result of a sudden, unexpected,
and extraordinary stress related to the employment and is demonstrated
by clear and convincing evidence.3

(Emphasis added.)
Notwithstanding, in Partin,4 the supreme court interpreted, the final version as
if it did not contain the italicized language, below:

Mental injury or illness resulting from work-related stress shall not
be considered a personal injury by accident arising out of and in the
course of employment and is not compensable pursuant to this Chapter,
unless the mental injury was the result of a sudden, unexpected, and
extraordinary stress related to the employment and is demonstrated by
clear and convincing evidence.5

Specifically, the supreme court found that the amending “unless” clause
referred, only, to “injury,” not to the entire clause that preceded it—“by accident
arising out of and in the course of employment.” It reasoned that this language was but
a remnant of the proposed bill which eliminated mental/mental claims, altogether.6
Thus, it construed the language, not in light of its surrounding statutory text but,
rather, in light of a proposed provision that failed to garner enough votes to become
law. In doing so, it adopted a construction of La.R.S. 23:1021(7)(b) that renders the
clause “by accident arising out of and in the course of employment,” superfluous,
because, in effect, its interpretation disregards this language. In doing so, it violates
well-settled rules of statutory interpretation.

3
See Id.
4
Id.
5
La.R.S. 23:1021(7)(b).
6
Partin, 810 So.2d 1118.
2

Rules of statutory interpretation require “courts [to] give effect to all parts of
a statute, and not adopt a construction making any part superfluous or meaningless,
if that result can be avoided.”7 “Statutory interpretation commences with the language
of the statute and progresses with the assumption that each statutory term has a
particular, non-superfluous meaning.”8 (Emphasis added.)
If the legislature intended Partin’s interpretation, it, easily, could have
eliminated “by accident arising out of and in the course of employment” from the
amendment or worded it “unless the accident causes mental injury that was the result
of a sudden . . . .” Since it did neither, I believe we must presume that it intended for
the “unless” clause to refer to the entire preceding clause which covers accident, as
well as injury.
This makes sense, given that the “unless” clause contains language which
parallels La.R.S. 1031(a)’s requirement of “accident arising out of and in the course
of employment” but redefines the “accident” requirement so that it is germane to this
section’s special type of injury. Specifically, regarding physical injuries, the
legislature defines “accident” in La.R.S. 1021(1) as “an unexpected or unforeseen
actual, identifiable, precipitous event happening suddenly or violently,” while for a
mental injury, it parallels this language in (7)(b) with “sudden, unexpected and
extraordinary stress.” These latter adjectives do not describe the mental injury, itself;
rather, they describe the stress or the cause of the mental injury. In other words, just
as “accident” and the adjectives used in its definition in La.R.S. 1021(1) do not refer
to the injury, itself, but, rather, to the cause of the injury, so do the adjectives that
describe the stress refer to the cause of the injury, not the injury, itself. While (7)(b)
does not use the word “cause,” it is obvious that this is what it means when it states
mental injury that “results from....,” which implies cause.
Simply, the meaning of (7)(b) is logically discerned by changing it from a
negative statement to a positive one which, essentially, deems that there has been a
work related accident and a compensable injury when the mental injury resulted from

7
First Nat'l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La. 2/20/95),
650 So.2d 1148, 1153 (citing Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204
(1955)).
8
State v. Joshlin, 99-1004, p. 5 (La. 1/19/00), 752 So.2d 834, 837 (citing Bailey
v. United States, 516 U.S. 137, 145-46, 116 S.Ct. 501 (1995)).
3

“a sudden, unexpected, and extraordinary stress related to the employment and is
demonstrated by clear and convincing evidence.” (Emphasis added)
Basically, the legislature incorporated 1031's requirements into those for (7)(b)
claims, using language in (7)(b) that is more applicable to mental injuries caused by
mental stress than is the language used to define “accident” for a physical injury.
Thus, this indicates that our legislature intended for the analysis of a compensable
mental/mental injury to be completely contained within (7)(b)’s borders and, thus, for
our analysis to end once a plaintiff meets those requirements. A further indication of
(7)(b)’s intended self-sufficiency is that the legislature, also, delineates within that
provision a special burden of proof for a mental injury. On the contrary, Partin’s
splintered approach regarding a mental/mental injury requires a plaintiff to prove
causation twice. Namely, a plaintiff must prove “accident,” a causation element under
1031(a), in addition to (7)(b)’s causation element, even though the legislature
intended the latter to be a substitute for that in 1031.
By the legislature’s establishment of a worker’s compensable mental/mental
claim, albeit in limited circumstances, surely, it intended for Ms. Adams’ situation to
constitute such a circumstance, given the foul behavior of her co-workers towards her
and the prodigious distress, which she proved their behavior caused. Nevertheless,
given Partin, I am constrained from giving her relief.

4

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0187

SCARLET CHRISTINE ADAMS

VERSUS

TEMPLE INLAND, LA

PETERS, J, dissenting.

Initially, I respectfully disagree with the majority’s conclusion that Ms. Adams

has no remedy under the Workers’ Compensation Act. As I appreciate the majority’s

position in part, it is that the WCJ does not have subject matter jurisdiction over Ms.

Adams’s sexual harassment claim because it is outside of the scope of the Workers’

Compensation Act.

I note that Temple Inland has not challenged the subject matter jurisdiction of

the WCJ over Ms. Adams’s claim. Nevertheless, “[t]he issue of subject matter

jurisdiction . . . may be considered at any time, even by the court on its own motion,

at any stage of an action.” Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329, pp.

7-8 (La. 2/26/02), 815 So.2d 7, 13. Still, I do not find that the WCJ lacks subject

matter jurisdiction over this claim.

Louisiana Revised Statutes 23:1310.3(E) provides in part that “the workers’

compensation judge shall be vested with original, exclusive jurisdiction over all

claims or disputes arising out of this Chapter . . . .” Ms. Adams’s claim is for

workers’ compensation indemnity and medical benefits as well as penalties and

attorney fees in connection with her mental injury caused by mental stress due to

sexual harassment in the course of her employment. She is not seeking tort damages

or any other relief that would fall outside of the jurisdiction of the WCJ in these

proceedings. As such, Ms. Adams’s claim arises out of the Workers’ Compensation

Act, and the WCJ has subject matter jurisdiction. I see nothing in La.R.S.

23:1310.3(E) that would exclude from the jurisdiction of the WCJ a claim otherwise

cognizable under the Workers’ Compensation Act merely because the injury resulted

from acts which could be classified as intentional.

However, the majority cites Morris & Dickson Co. v. Killingworth, 36,117

(La.App. 2 Cir. 10/4/02), 830 So.2d 332, writ denied, 03-0071 (La. 3/28/03), 840

So.2d 571, in support of its determination that any remedy to which Ms. Adams is

entitled does not fall within the purview of the Workers’ Compensation Act. In

Morris & Dickson Co., the employee initiated a charge with the Equal Employment

Opportunity Commission, alleging sexual harassment and retaliation for engaging in

protected activities in violation of Title VII of the Civil Rights Act of 1964.

Thereafter, the employee filed a complaint in federal district court based upon the

Title VII violations. It was the employer in Morris & Dickson Co. that filed a

disputed claim form with the OWC, alleging a bonafide dispute regarding the

employee’s injuries. The employee filed an exception of lack of subject matter

jurisdiction in the workers’ compensation proceedings. The second circuit found that

in fact the OWC did not have subject matter jurisdiction. In so finding, the second

circuit explained that “statutory discrimination claims are distinct and do not arise

under the state workers’ compensation law.” Id. at 334 (emphasis added). In the

instant case, Ms. Adams has not asserted Title VII claims against Temple Inland in

these proceedings; her claim against Temple Inland is solely for workers’

compensation benefits.

However, the second circuit also stated, among other things, that the

employee’s “sexual harassment claim [was] not within the scope of the WCA because

2

it [was] not a workplace injury arising out of the course of her employment.” Id.

Rather, the second circuit found that the employee had “allege[d] that an intentional

tort was committed against her by a co-employee, a claim which is not within the

purview of the state workers’ compensation law.” Id. Importantly, Ms. Adams has

not alleged that an intentional tort was committed against her and has not brought a

suit for damages for intentional tort against Temple Inland.

Louisiana Revised Statutes 23:1032(A)(1)(a) provides in part: “Except for

intentional acts provided for in Subsection B, the rights and remedies herein granted

to an employee . . . on account of an injury . . . shall be exclusive of all other rights,

remedies, and claims for damages . . . .” This statute provides immunity to an

employer from tort suits by the employee, except that for intentional acts the employer

is not immune from tort suits. The tort immunity operates as an affirmative defense

in a tort action. See generally Brown v. Adair, 02-2028 (La. 4/9/03), 846 So.2d 687.

I see nothing in the statute, however, indicating that the converse is true, i.e., that the

employer is immune from a workers’ compensation suit by the employee merely

because the acts resulting in injury to the employee may be classified as intentional.

“[Louisiana Revised Statutes 23:1032] is not a law evaluating conditions of legality

of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive

defense that defeats an otherwise viable claim.” Id. at 690. In my opinion, La.R.S.

23:1032(A)(1)(a) focuses on the exclusiveness of the rights and remedies granted an

employee; it does not serve to defeat jurisdiction where the acts committed by the

employer or co-employee may be classified as intentional.

Ms. Adams may have chosen to avail herself of the quid pro quo benefits of the

workers’ compensation scheme instead of pursuing an intentional tort suit for which

she would have had to bear the burden of production on the issue of fault and the

3

concomitant risk of failing in that burden. I do not find that this case falls outside of

the jurisdiction of the WCJ simply because the acts giving rise to Ms. Adams’s

injuries may be classified as intentional.

Further, I respectfully disagree with the majority’s resolution of the issue raised

by Temple Inland in the proceedings below, i.e., whether Ms. Adams’s claim meets

the definition of an “accident.” As set forth by the majority, in Partin v. Merchants

& Farmers Bank, 01-1560, pp. 12-13 (La. 3/11/02), 810 So.2d 1118, 1125, the

supreme court explained:

Under the statute, a mental injury is compensable depending upon the
type of stress which triggers that injury. The legislative history of
subsection 7(b) . . . reveals an active decision on the part of the
legislature to so condition compensability in order to tighten the reigns
of recovery for mental/mental claims. The desire for more difficult tests
and restricted recovery indicates that the legislature intended that the
nature of the stress itself be evaluated, rather than the stress being
evaluated from the employee’s perspective. This of course differs from
the determination of whether an “event” was unexpected or unforseen
under the accident requirement of subsection 1021(1), which is made by
viewing the event from the employee’s perspective. . . . The most likely
inference is that the legislature intended to restrict recovery under
subsection (7)(b) to those mental injuries that result from stresses which,
by their nature, are sudden, unexpected, and extraordinary in the usual
course of employment in that working environment.

(Emphasis added) (citations omitted).

In determining that, because there was not a single “event” that caused Ms.

Adams’s mental injury but rather “various events and occurrences of sexual

harassment” that had “occurred over an extended period of time,” Ms. Adams failed

to prove that her mental injury was compensable, the WCJ essentially imposed upon

Ms. Adams the burden of proving that the sexual harassment she experienced met the

definition of “accident” as contained in La.R.S. 23:1021(1). For purposes of that

subsection, an “accident” is defined in part as “an unexpected or unforeseen actual,

identifiable, precipitous event happening suddenly or violently . . . and directly

4

producing at the time objective findings of an injury which is more than simply a

gradual deterioration or progressive degeneration.” Id. (emphasis added).

Moreover, the majority cites Sidwell v. Horseshoe Entertainment Ltd.

Partnership, 35,718 (La.App. 2 Cir. 2/27/02), 811 So.2d 229 (citing Sparks v. Tulane

Medical Center Hospital & Clinic, 546 So.2d 138 (La.1989)), for the proposition that

a mental injury caused by incidents occurring over an extended period of time is not

compensable. However, Sidwell was decided prior to Partin.

I see nothing in La.R.S. 23:1021(7)(b) or in Partin, 810 So.2d 1118, that

disqualifies a mental injury from being compensable simply because the stress from

which it arose was not confined to a single event but was comprised of a series of

incidents over an extended period of time. In fact, in Partin, 810 So.2d at 1126, the

supreme court expressly rejected such an analysis, explaining that, while the court in

Sparks had limited the compensability of mental/mental claims through the “accident”

requirement, “[u]nder the new law [the current version of La.R.S. 23:1021(7)(b)], it

is not necessary to limit mental/mental claims through the accident requirement [of

La.R.S. 23:1021(1)].” Instead, “[t]he new law provided in subsection 1021(7)(b)

supplies its own limitation by disallowing compensation for mental injuries unless

they result from stress that, by its nature, is sudden, unexpected, and extraordinary in

the usual course of employment in that working environment.” Id. Importantly, the

court instructed that, although a claimant must satisfy the requirement of La.R.S.

23:1031(A) that he has “receive[d] personal injury by accident arising out of and in

the course of his employment,” still, “the limitation on claims should now be found

in subsection 1021(7)(b).” Partin, 810 So.2d at 1126.

Thus, I would find that the WCJ committed an error of law in requiring Ms.

Adams to prove that a single event caused her mental injury. Rather, as set forth in

5

Partin, it is the nature of the stress, i.e., the sexual harassment, that is to be evaluated,

which requirement “differs from the determination of whether an ‘event’ was

unexpected or unforseen under the accident requirement of subsection 1021(1), which

is made by viewing the event from the employee’s perspective.” Id. at 1125

(emphasis added).

In evaluating the nature of the stress in this case, it is clear that sexual

harassment in the form of escalating comments; threats of job loss, rape, and arson;

and nonconsensual, offensive touching creates stress that is certainly sudden,

unexpected, and extraordinary in the usual course of employment for a utility hand.

Unlike the demotion in Partin, the sexual harassment in this case was not merely

unfair from Ms. Adams’s perspective. Thus, I would reverse the WCJ’s judgment and

hold that Ms. Adams met the requirements of La.R.S. 23:1021(7)(b).

6