James R. Duplechain v. Bell Office Supply

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1282

JAMES R. DUPLECHAIN

VERSUS

BELL OFFICE SUPPLY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 03-08243
JASON GERARD OURSO, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
James T. Genovese, Judges.

AFFIRMED.

Jonathan Clyde Vidrine
West & Vidrine
P. O. Drawer 1019
Ville Platte, LA 70586
Telephone: (337) 363-2772
COUNSEL FOR:
Plaintiff/Appellee - James R. Duplechain

Laurie Wilder Maschek
Rabalais, Unland & Lorio
5100 Village Walk - Suite 300
Covington, LA 70433
Telephone: (985) 893-9900
COUNSEL FOR:
Defendant/Appellant - Bell Office Supply

THIBODEAUX, Chief Judge.

Defendant-employer, Bell Office Supply, appeals the Office of Workers’

Compensation judgment that injuries sustained by Plaintiff-employee, James Ray

Duplechain (Mr. Duplechain), from a motorcycle accident occurred while he was in

the course and scope of his employment, making him eligible for benefits under the

Louisiana Workers’ Compensation Act. For the following reasons, we affirm the

judgment.

I.

ISSUE

Did Mr. Duplechain sustain injuries from an accident that occurred in the

course and scope of his employment, and did those injuries arise out of his

employment with Bell Office Supply?

II.

FACTS

Mr. Duplechain was the manager of Bell Office Supply (BOS) in Ville

Platte, Louisiana in April of 2003. He was also President of the Board of Directors,

and a part owner with a twenty-percent ownership interest in the business. He had

been continuously employed by BOS since 1974, and assumed the position of

Manager in 1976. As Manager, he was responsible for all aspects of the day-to-day

operations of the business. BOS had a small office staff, consisting of Mr.

Duplechain and two other office workers, plus a delivery truck driver.

As part of his management responsibilities, Mr. Duplechain would often

have to personally complete many of the tasks required by the daily activities of the

business. Uncontroverted testimony from him and the other BOS employees reveals

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that his tasks included: making personal sales calls to new and existing clients;

loading and unloading merchandise; taking inventory of stock and ordering more

merchandise; making sure customers’ orders were placed and delivered on time;

solving any delivery problems that might occur, such as the delivery truck breaking

down; sorting through and processing bids; and, manning the cash register in the

store.

To enable Mr. Duplechain to perform all of the above-listed duties, BOS

supplied him with a pick-up truck. All of the expenses for this truck were paid for by

BOS.

BOS was officially open to the public Monday through Friday, from 8

a.m. to 5 p.m. However, Mr. Duplechain would often work before and after closing

and on weekends in order to maintain all of the responsibilities required to make BOS

competitive, and serve its customers in a timely fashion.

On April 17, 2003, the BOS delivery truck became disabled in the

middle of the daily deliveries. Mr. Duplechain arranged for the truck to be towed to

a repair shop, and then allowed the delivery truck driver to use the pick-up truck

supplied to him by BOS to finish the day’s deliveries. Mr. Duplechain used his

personal motorcycle, as he did on a regular basis, to resume his work schedule and

continue responding to the duties of the day. After a break during which he umpired

a high school baseball game, Mr. Duplechain returned to BOS to complete any

unfinished projects for the day. He arrived at BOS after 5pm when the office and

store were officially closed for the day. He had to unlock the door, turn on the lights,

re-start the computer, and he began processing the bids that had been placed by

customers that day. All other BOS employees had left for the day.

Mr. Duplechain then noticed that a number of printing orders had been

left behind by the delivery man, and had not been delivered to the printer that day as
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scheduled. Since it was after hours, Mr. Duplechain decided that he needed to deliver

the orders to the home of the owner of Johnson’s Printing, T. J. LeBouef, in Eunice,

Louisiana. April 17, 2003 was the Thursday before Good Friday. Both BOS and

Johnson’s Printing would be officially closed for the three-day Easter weekend, but

Mr. Duplechain wanted the orders to be at Johnson’s in time for them to begin work

immediately on them Monday morning when they returned from the holiday

weekend. It was his intention to ensure that the orders would be processed in a timely

manner for BOS’s customers.

Mr. Duplechain used his personal motorcycle to make the delivery even

though the BOS pick-up truck had been returned to the office and was available for

his use. He stated that he chose to use the motorcycle because it got better gas

mileage. Both the printshop owner T. J. LeBouef and Mr. Duplechain stated that

BOS printing orders had been delivered to Mr. LeBouef’s home after hours by Mr.

Duplechain using his personal motorcycle on a number of previous occasions.

Testimony from witnesses estimate that the delivery was made sometime between

5:30 p.m. and 7:25 p.m. on April 17, 2003.

After making the delivery, Mr. Duplechain met his family for dinner at

a restaurant near Mr. LeBouef’s home in Eunice, Louisiana. Approximately thirty to

forty minutes later, Mr. Duplechain and his wife set out for Ville Platte, Louisiana on

his motorcycle. Mr. Duplechain stated that he was going back to BOS to finish the

work that he had left unfinished on his desk before he made the printing delivery.

Before he arrived at BOS, his motorcycle was struck by an on-coming car in the

opposite lane of traffic that was attempting to make a left turn. Mr. Duplechain

sustained serious injuries that have left him completely and permanently disabled.

He lacks the capability to work in any capacity whatsoever.

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Mr. Duplechain filed this disputed claim for compensation with the

Louisiana Office of Workers’ Compensation. Both parties submitted their case to the

workers’ compensation judge on the record that had been developed rather than

having a trial. The only issue in dispute was whether Mr. Duplechain was in the

course and scope of his employment when the accident occurred. The trial court

determined that he was, and BOS then filed this appeal.

III.

LAW AND DISCUSSION

Standard of Review

Appellate courts cannot overturn the factual determinations of workers’

compensation courts unless the trial court was clearly wrong, or committed manifest

error. Smith v. La. Dep’t of Corr., 93-1305 (La. 2/28/94), 633 So.2d 129. Factual

determinations include reasonable evaluations of credibility and reasonable

inferences of fact, especially when conflict exists in the testimony of witnesses or

parties. Id. “[I]f the WCJ’s findings are reasonable in light of the record reviewed

in its entirety, the court of appeal may not reverse, even if convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.” Lyons v.

Bechtel Corp., 00-364, p. 7 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, 40, writ denied,

01-282 (La. 3/23/01), 787 So.2d 996 (citation omitted).

Under Louisiana’s workers’ compensation statute, a worker must prove

that an accident with resulting injuries arose out of, and occurred in the course of his

or her employment by a preponderance of the evidence. Bruno v. Harbert Int’l, Inc.,

593 So.2d 357 (La.1992). Appellate courts must give great deference to the workers’

compensation judge’s determination as to whether the employee has met his or her

burden of proof. Id.

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In determining whether the employee has discharged his
burden of proof, the workers’ compensation judge should
accept as true a witness’ uncontradicted testimony, even
though the witness is a party, absent circumstances that
cast suspicion on the reliability of that testimony. Further,
the workers’ compensation judge’s determinations on
whether the employee’s testimony was credible and on
whether the employee met his burden of proof are factual
findings not to be disturbed on appeal absent manifest
error.

Honeycutt v. Elbert Walker Constr., 01-1291, pp. 3-4 (La.App. 3 Cir. 2/6/02), 815

So.2d 1011, 1014 (citations omitted).

While the worker bears the burden of proving that an injury occurred by

an accident arising from and in the course of his or her employment by a

preponderance of the evidence, the Louisiana Supreme Court in McLin v. Industrial

Specialty Contractors, Inc., 02-1539 (La. 7/2/03), 851 So.2d 1135, directed Louisiana

courts to interpret the work-related accident requirement liberally.

The provisions of the workers’ compensation law are to be
interpreted liberally in favor of the worker in order to
effectuate its purpose of relieving workers of the economic
burden of work-connected injuries by diffusing the cost on
channels of commerce. Lester v. Southern Cas. Ins., 466
So.2d 25 (La.1985). See also Coats v. American Tel. &
Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243; Harold
v. La Belle Maison Apartments, 94-0889 (La. 10/17/94),
643 So.2d 752.

Id. at 1139.

The Louisiana Workers’ Compensation Act defines an accident as “an

unexpected or unforeseen actual, identifiable, precipitous event happening suddenly

or violently, with or without human fault, and directly producing at the time objective

findings of an injury which is more than simply a gradual deterioration or progressive

degeneration.” La.R.S. 23:1021(1). There is no question from the record, nor do any

of the parties disagree, that Mr. Duplechain suffered an accident which meets the

elements of this statutory definition of an accident.

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There is also no question that Mr. Duplechain was very seriously injured

as a result of that accident. The sole debate in this case is whether the accident in

which those injuries were sustained arose out of, and occurred in the course of his

employment with BOS, as required by La.R.S. 23:1031(A).

A Compensable Accident Must Arise Out of and Occur
In the Course of Employment

Louisiana Revised Statutes 23:1031 states that only injuries which both

arise out of, and occur in the course of employment are compensable under the

workers’ compensation system. La.R.S. 23:1031(A). An analysis of whether an

injury occurred in the course and scope of employment requires an analysis of both

the arising out of, and course of employment requirements. “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.” Raybol v. La. State Univ.,

520 So.2d 724, 726 (La.1988). Therefore, we must determine whether there is

evidence in the record which reasonably supports a conclusion that Mr. Duplechain’s

injuries both arose out of, and occurred in the course and scope of his employment.

“[T]his court has recognized the mutual interdependence of the two concepts in

determining the relationship of the injury to the employment.” Mundy v. Dep’t of

Health and Human Res., 593 So.2d 346, 349 (La.1992).

In his reasons for judgment in favor of Mr. Duplechain, the workers’

compensation judge relied, at least in part, upon the Louisiana Supreme Court’s

analysis of the interdependence of these two factors elaborated in McLin. If an

employee is actively engaged in the performance of his or her work duties, during

contemplated work hours, at a place where those employment activities take the

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employee, then he or she has met the “in the course of” employment requirement.

McLin, 851 So.2d at 1140. Then, “[t]he requirement that an employee’s injury ‘arise

out of’ the employment relates to the character or origin of the injury suffered by the

employee and whether this injury was incidental to the employment. Williams[v.

Regional Transit Authority], 546 So.2d [150,]161 [(La.1989)].” Id.

We will first determine whether Mr. Duplechain’s injury occurred in the

course of his employment because “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 [13

Louisiana Civil Law Treatise – Worker’s Compensation] § 193 [(2d ed. 1980).]”

Mundy, 593 So.2d at 349. Basically, “the principal criteria for determining course of

employment are time, place and employment activity.” Id.

All of the deposition testimony in the record confirms Mr. Duplechain’s

assertion that he went to the printer in Eunice because he was completing a work

errand on behalf of his employer, BOS. The record shows that he had made such trips

to the printer after hours in the past. The record also reveals that he often used his

motorcycle to make such trips.

There is no requirement in the statute or the caselaw that an employee

must use a vehicle supplied by his or her employer when completing work activities

off the employer’s premises. It is an unimportant fact in this case because Mr.

Duplechain had used his motorcycle to conduct many tasks on behalf of BOS for

many years. BOS had no policy against the use of the motorcycle, nor was there a

policy requiring the use of BOS official vehicles when conducting BOS business.

BOS offers no testimony or other evidence to contradict Mr. Duplechain, or any of

the other deposition testimony. Additionally, BOS’s assertion that by taking his

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motorcycle Mr. Duplechain assumed greater risk than what was required for

completing the task is merely speculative, and therefore not a valid issue.

The record contains testimony and other evidence which tend to

demonstrate that BOS benefitted from Mr. Duplechain’s efforts to serve the

customers, even after hours. Michelle Fontenot and Tiffany Fontenot, BOS’s two

other employees, both corrorborated Mr. Duplechain’s statements that he often

worked before and after the store officially closed, on holidays and weekends, and

that customers would even call him at home in order to get the supplies that they

needed. BOS likely benefitted from this kind of dedication and customer service.

BOS argues that even if Mr. Duplechain was conducting an employment-

related duty, at a time and place contemplated by his employment, he was no longer

in the course and scope of his employment when the accident occurred because of the

application of the “going-and-coming rule.”

Generally, injuries sustained by an employee while
traveling to and from work are not considered to have
occurred within the course and scope of his employment,
and thus, are not compensable under the Workers’
Compensation Act. Stephens v. Justiss-Mears Oil Co., 312
So.2d 293 (La.1975); W. Malone & H. Johnson, 13
Louisiana Civil Law Treatise--Workers Compensation §
168 (4th ed. 2002). This rule, often called the
“going-and-coming 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. Phipps v. Bruno Const., 00-0480
(La.App. 3 Cir. 11/2/00), 773 So.2d 826 (citing Yates v.
Naylor Industrial Services, Inc., 569 So.2d 616, 619
(La.App. 2 Cir.1990), writ denied, 572 So.2d 92 (La.1991).

McLin, 851 So.2d at 1140.

Mr. Duplechain claims that he was not traveling home from his

employment task, but rather that he was heading back to the BOS office to complete

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the day’s work that he had left undone on his desk when he left to go to the printer’s

home. Both Michelle Fontenot and Tiffany Fontenot state that when they came into

work on the Monday following the accident, Mr. Duplechain’s computer and lights

were on, and the bids he had been working on were left scattered all over his desk,

not yet completed. They both stated that Mr. Duplechain must have come in after 5

p.m. on that Thursday, April 17, because they had turned off the computers and lights

when they left the office that day at 5 p.m. The two women and Mr. Duplechain were

the only ones with keys to the BOS office, and neither one of the women had returned

until the following Monday morning.

Michelle stated that she assumed that the bids on Mr. Duplechain’s desk

were not yet completed. Typically, when he was finished with the bids he would put

a BOS stamp on them, and the bids lying on his desk did not have that stamp on them.

She also stated that Mr. Duplechain was the only person with a key who would

typically come into BOS after hours and finish the bids. He was the only BOS

employee at the time who worked on the bids, and he preferred having them

completed the day they were placed.

The testimony of Michelle and Tiffany corroborates Mr. Duplechain’s

assertion that he was working late, and intended to return to BOS to finish that work.

BOS offers no evidence or testimony which contradicts Mr. Duplechain’s claim that

he was heading back to BOS to finish the work he had begun earlier in the evening.

Therefore, he was not going home from work, he was still working when the accident

occurred, making the “going-and-coming rule” inapplicable to this case.

The record supports the conclusion that Mr. Duplechain was working for

BOS when he went to Eunice to deliver the printing orders to the printer, and that he

was heading back to BOS to continue working. Therefore, the judgment of the Office

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of Workers’ Compensation that he was in the course of his employment when the

accident occurred is reasonable.

We now determine if there was evidence in the record to support a

reasonable conclusion that the accident also arose out of Mr. Duplechain’s

employment. In Williams, the statutory requirement that injuries must also arise out

of an employee’s employment was explained:

Under La.R.S. 23:1031, the employee’s injury must
arise out of his employment. The purpose of the “arising
out of” requirement is to assure that compensation will be
awarded only for those personal injuries related to risks
incidental to employment. Reid v. Gamb, 509 So.2d 995
(La.1987); Nix v. City of Houma, 488 So.2d 184 (La.1986);
Malone & Johnson, [13 La. Civil Law Treatise, Worker’s
Compensation] supra, § 191. The “arising out of” inquiry
focuses upon whether the character or origin of the risk
giving rise to injury was employment related. Raybol v.
Louisiana State University, 520 So.2d 724 (La.1988).

Williams, 546 So.2d at 158-59.

The record makes clear that Mr. Duplechain would not have traveled to

Eunice the evening of April 17, 2003 except to deliver the printing orders that had

been left behind by the BOS delivery man earlier that day. Mr. Duplechain’s

explanation that he wanted the printing orders to get to the printer in time to be

processed first-thing on the next business day was reasonable, and BOS offers no

testimony or other evidence to contradict Mr. Duplechain’s reasoning. Since the

printing orders needed to be at the printer, and Mr. Duplechain needed to return to

BOS to finish his work, he would not have been on the road, at the location of the

accident, at the time of the accident, had he not been engaged in an employment

activity for BOS. Therefore, it is reasonable to conclude that Mr. Duplechain’s

injuries also arose out of his employment. “An accident arises out of employment if

the employee was engaged about his employer's business and when the conditions of

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obligations of the employment cause the employee in the course of employment to be

at the place of the accident at the time the accident occurred.” McLin, 851 So.2d at

1142.

BOS argues that Mr. Duplechain deviated from his work route because

he did not use the same route to come back from Eunice as he took to go to Eunice.

However, the route taken by an employee is not determinative of whether the

employee was in the course and scope of his employment or whether the accident

arose out of one’s employment unless the employee was going to or coming home

from work. In this case, Mr. Duplechain was performing a task that benefitted his

employer. The record reveals that there are at least three different routes one can take

from Ville Platte to Eunice. The performance of a work related task does not require

an employee to use exactly the same route if there are choices of routes to take.

Was There a Substantial Deviation From the Course of Employment

BOS alleges that the workers’ compensation judge committed legal error

by not applying the substantial deviation doctrine.

Generally, “[a]n identifiable deviation from a business trip
for personal reasons takes the employee out of the course
of employment until the employee returns to the route of
the business trip, unless the deviation is so small as to be
disregarded as insubstantial.” 1 Larson’s Workers’
Compensation Law § 17-1 (emphasis added); see also
Malone & Johnson, 13 Louisiana Civil Law Treatise,
Workers’ Compensation § 174, at 405 & n. 1.

Timmons v. Silman, 99-3264, p. 5 (La. 5/16/00), 761 So.2d 507, 511.

Mr. Duplechain admits that after delivering the printing order, he and his

family had supper at a near-by restaurant. Had the accident occurred while he was

going to the restaurant, at the restaurant, or coming back from the restaurant on a

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route that would not lead him back to BOS, then we would have reason to discuss the

substantial deviation doctrine. However, the accident occurred within approximately

one mile of the BOS office, which is approximately twenty miles from Eunice,

Louisiana. It is clear from the facts in evidence that Mr. Duplechain’s personal

deviation for supper was over, and that he was back within the course and scope of

his employment.

IV.

CONCLUSION

An employee is within the course and scope of his or her employment

at the time of an alleged work-related accident if that accident both arises out of, and

occurs in the course of his or her employment. The determination of whether an

employee was in the course and scope of his or her employment is a factual

determination. Factual determinations made by a workers’ compensation judge

cannot be overturned on appeal unless they are clearly wrong or contain manifest

error.

In this case, the workers’ compensation judge reasonably concluded that

because Mr. Duplechain was returning to the BOS office from a work-related errand

at the time of his accident that he was within the course and scope of his employment.

The fact that he took a dinner break, and then returned to work is not a determinative

issue in this case. Likewise, the route he chose to use to complete his work errand is

not part of the analysis required to determine if he was in the course and scope of his

employment unless he was going to or coming home from work, which he was not.

The judgment of the Office of Workers’ Compensation is affirmed. All costs of this

appeal are cast to the Defendant/Appellant BOS.

AFFIRMED.

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