Janet C. Lemoine v. Town of Simmesport

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-429

JANET C. LEMOINE

VERSUS

TOWN OF SIMMESPORT

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, NO. 06-08811
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

Cooks, J., dissents and assigns reasons.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm
Post Office Box 426
Marksville, Louisiana 71351
(318) 253-6200
Counsel for Plaintiff/Appellant:
Janet C. Lemoine

Mark D. Boyer
Boyer & Hebert
1810 Florida Avenue, SW, Suite B
Denham Springs, Louisiana 70726
(225) 664-4335
Counsel for Defendant/Appellee:
Town of Simmesport

Joseph B. Stamey
Stamey & Miller
Post Office Drawer 1288
Natchitoches, Louisiana 71458-1288
(318) 352-4559
Counsel for Defendant/Appellee:
Louisiana Municipal Risk Management Agency

SULLIVAN, Judge.

Janet Lemoine appeals a judgment of the Office of Workers’ Compensation

(OWC) which dismissed her claims against the Town of Simmesport. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Lemoine was injured on October 6, 2006, while collecting money for the

Simmesport Cares Program (the Cares Program) at a roadblock set up on Highway 1

in Simmesport, Louisiana. After suffering a seizure, she fell and hit her head on the

highway. The fall caused permanent brain damage and left her in a semi-vegetative

state, totally dependent upon others, and, according to the neurosurgeon who

performed brain surgery on her, with no chance of full recovery. As a result of her

injuries, Ms. Lemoine was interdicted and her daughter was appointed as her

curatrix.1

On December 27, 2006, Ms. Lemoine filed a Disputed Claim for Compensation

against the Town of Simmesport (the Town), her employer at the time of her injury.

Risk Management, Inc. (Risk Management), as administrator of the Town’s workers’

compensation insurer, denied Ms. Lemoine’s claim in a letter to the Mayor of

Simmesport, James Fontenot, dated November 30, 2006, on the basis that her injury

was not work related. The Town later filed an answer to the disputed claim denying

that Ms. Lemoine was injured by an accident arising out of and in the course and

scope of her employment.2

1
All of the pleadings in this matter by Ms. Lemoine have been filed on her behalf by her
curatrix. For ease of discussion, we will refer to the pleadings as being filed by Ms. Lemoine.
2
By way of an amended answer, the Town affirmatively pled the defense of intoxication, i.e.,
it claimed that Ms. Lemoine was intoxicated by alcohol and non-prescribed controlled substances
at the time of her accident. Several weeks later, however, the Town filed a second amended answer
removing the defense of intoxication by alcohol. Approximately one month thereafter, the Town

1

Several weeks before the originally scheduled trial, Risk Management

discharged the Town’s attorney of record and informed the Town that it would no

longer provide the Town with coverage or a defense to Ms. Lemoine’s lawsuit. As

a result, the Town filed a third-party demand against Risk Management alleging that

it was owed coverage and/or a defense to Ms. Lemoine’s claims by virtue of the

insurance contract between them.3 Risk Management filed exceptions and an answer

to the Town’s third-party demand.

Ms. Lemoine filed a motion for summary judgment against the Town and Risk

Management on the issues of whether she had suffered a work-related accident and

whether the accident had occurred during the course and scope of her employment

with the Town, thus entitling her to workers’ compensation benefits, along with

penalties, interest, and attorney fees. The Town opposed the motion. Following a

hearing, the workers’ compensation judge denied Ms. Lemoine’s motion.

Ms. Lemoine timely sought writs in this court. In a decision rendered on January 9,

2008, this court denied the writ finding no error in the trial court’s ruling.4

Trial on the merits was held on January 10, 2008. At the close of the evidence,

Risk Management moved for an involuntary dismissal. The workers’ compensation

judge granted the motion and dismissed Ms. Lemoine’s claims against the Town with

prejudice. The third-party demand filed by the Town against Risk Management was

dismissed with prejudice as well.

filed a third amended answer removing the defense of intoxication by non-prescribed controlled
substances.
3
The Town later amended its third-party demand to change the name of the third-party
defendant to Louisiana Municipal Risk Management Association. For ease of discussion, we will
continue to refer to that entity as Risk Management.
4
See Lemoine v. Town of Simmesport, an unpublished writ bearing docket number 08-28
(La.App. 3 Cir. 1/9/08).

2

Ms. Lemoine now appeals, assigning the following errors:

1. The Workers’ Compensation Court committed an error of fact and
law in holding that she was not within the course and scope of her
employment with the Town of Simmesport at the time of her injury.

2. The Workers’ Compensation Court committed an error of fact and
law in holding that La.R.S. 33:404 and La.R.S. 33:321 do not vest
authority in the Mayor of Simmesport to establish the Simmesport Cares
Program on behalf of the Town of Simmesport.

DISCUSSION

The Louisiana Supreme Court set out the standard of review to be employed

in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works,

Inc., 96-2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (citations omitted):

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. In
applying the manifest error-clearly wrong standard, the appellate court
must determine not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one.

“The determination of coverage is a subjective one in that each case must be

decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220

(La.1981). A worker bringing a compensation action against her employer bears the

burden of proving, as a threshold requirement, that she suffered “personal injury by

accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno

v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in

La.R.S. 23:1031 is defined 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).

3

This court explained in Lexington House v. Gleason, 98-1818, pp. 2-3 (La.App.

3 Cir. 3/31/99), 733 So.2d 123, 124, writ denied, 99-1290 (La. 6/25/99), 746 So.2d

603 (alteration in original):

Under La.R.S. 23:1031(A), an employer is required to pay
workers’ compensation to an employee not otherwise eliminated from
receiving benefits if the employee sustains an injury by accident “arising
out of and in the course of his employment . . . .” The “arising out of”
and the “in the course of” elements are not synonymous but cannot be
considered in isolation from each other. Jackson v. American Ins. Co.,
404 So.2d 218 (La.1981). A strong showing with reference to one of
these elements may compensate for a relatively weak showing with
reference to the other. Id. In Jackson, the court found that the “arising
out of” element in the case before it was satisfied by two factors: the
extent to which employee attendance at the event was mandatory and the
degree to which the employer’s purpose was served by the activity
which gave rise to the injury. The court also explained that the “in the
course of” element generally relates to the time and place of the accident
as it relates to that of the regular employment.

The workers’ compensation judge relied on Girard v. Patterson State Bank,

06-49 (La.App. 1 Cir. 11/3/06), 950 So.2d 703, writ denied, 06-2792 (La. 1/26/07),

948 So.2d 173, both in denying Ms. Lemoine’s motion for summary judgment and

in granting Risk Management’s motion for involuntary dismissal after trial on the

merits. In Girard, the plaintiff went into a mobile blood donation unit owned by

United Blood Services (UBS), which was parked on the premises of her employer,

Patterson State Bank (PSB). A phlebotomist drew blood, immediately causing a

burning sensation in Ms. Girard’s arm, and she could not move her fingers. She was

eventually diagnosed with Complex Regional Pain Syndrome and has remained in

constant pain ever since. Ms. Girard resigned when she could no longer perform her

duties as a loan servicing clerk. She later filed a disputed claim form, averring that

she was entitled to receive compensation benefits from PSB as a result of the injury

she sustained while donating blood. PSB answered the lawsuit generally denying her

4

claims and filed a motion for summary judgment seeking dismissal from the lawsuit,

averring that Ms. Girard had not sustained an accident that arose out of and in the

course of her employment. The OWC agreed, granting summary judgment and

dismissing Ms. Girard’s claims against PSB. Ms. Girard appealed.

The appellate court affirmed, finding that Ms. Girard had failed to establish

either the “in-the-course-of” or the “arising-out-of” elements necessary to entitle her

to receive compensation benefits from her employer. The court noted that although

the accident happened during Ms. Girard’s regular working hours and on her

employer’s premises, donating blood was clearly not among her job duties as a loan

servicing clerk. In addition, the court found that while PSB may have encouraged its

employees to donate blood, they were neither rewarded nor sanctioned as a result of

their decision of whether to participate in the blood drive.

Assignment of Error Number One

Ms. Lemoine contends that the workers’ compensation judge erred in finding

that she was not within the course and scope of her employment with the Town at the

time of her injury. The Town disagrees, arguing that because Ms. Lemoine’s

participation in the roadblock was completely voluntary, the workers’ compensation

judge was correct in concluding that she was not in the course and scope of her

employment when she was injured.

In dismissing Ms. Lemoine’s claims against the Town, the workers’

compensation judge stated:

The testimony of [Mayor] Fontenot was that Ms. Lemoine left the place
of employment, went home and changed her clothes and was simply out
there with everyone else volunteering, never required to do this. I don’t
find that this incident occurred in the course and scope of
Ms. Lemoine’s employment, while performing the functions and duties
of her job. It was a volunteer action much like in the case of Girard. . . .

5

While deposition testimony of all of the Town employees present at the

roadblock indicated that Ms. Lemoine was on the clock at the time of her injury,

Girard stands for the proposition that this factor alone is not determinative of whether

an employee is in the course and scope of their employment so as to make that injury

compensable under workers’ compensation.

Mayor Fontenot testified that fundraising for the Cares Program was performed

by volunteers and that roadblocks, such as the one at which Ms. Lemoine was injured,

took place primarily on the weekends. He stated that Ms. Lemoine had volunteered

in conjunction with the Cares Program before she was an employee of the Town.

Mayor Fontenot was adamant that Ms. Lemoine’s participation at the fundraising

event for the Cares Program was strictly voluntary; he testified that she had the option

of staying in the office to work or coming out to assist in the roadblock.

After having reviewed the record in its entirety, including the trial transcript

and the exhibits submitted in conjunction with the trial on the merits, we conclude

that the workers’ compensation judge was not manifestly erroneous or clearly wrong

in concluding that Ms. Lemoine was not in the course and scope of her employment

when she was injured. Ms. Lemoine’s first assignment of error is without merit.

Assignment of Error Number Two

Because of our finding with regard to Ms. Lemoine’s first assignment of error,

we need not determine whether, under Louisiana law, Mayor Fontenot was vested

with authority to establish the Cares Program on behalf of the Town.

6

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Office of Workers’

Compensation dismissing Janet Lemoine’s claims against the Town of Simmesport.

Costs of this appeal are assessed against Ms. Lemoine.

AFFIRMED.

7

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-429

JANET C. LEMOINE

VERSUS

TOWN OF SIMMESPORT

COOKS, J., dissents.

I respectfully dissent from the majority’s decision to affirm the finding that Ms.

Lemoine was not injured in the course and scope of her employment. The majority

errs in its reliance on Girard, as it is factually distinguishable from the present case.

There was absolutely no testimony in Girard that the injured claimant was required

by her superiors at the Bank to donate blood. In fact, the Girard opinion specifically

noted the Bank did not require employees to give blood. Thus, her decision to give

blood was a choice she made that had no correlation whatsoever to her duties at the

Bank.

The situation in the present case is completely different. Ms. Lemoine was

employed by the Town of Simmesport, and her job consisted of collecting money for

the Simmesport CARES program, which was established by the Mayor of

Simmesport to help the areas elderly citizens. Ms. Lemoine would collect and deposit

money to the “Simmeport Cares” account established with Simmesport State Bank.

Any checks issued on this account required the signatures of the Mayor and Ms.

Lemoine before negotiation. Ms. Lemoine signed the checks as the manager, director

and administrator of the CARES program. The roadblock fundraiser was specifically

approved by the Simmesport Town Council.

The fundraiser began at 4:00 p.m. According to the Mayor, he told Ms.

Lemoine she was not required to work the fundraiser, so she had the option of

remaining in her office until 5:00 p.m. handling other matters. The accident in

question occurred at 4:15 p.m., during Ms. Lemoine’s regular work hours. Although

the Town argued her participation in the roadblock was completely voluntary, the

record establishes otherwise. As the majority noted, the testimony of Ms. Lemoine’s

co-workers indicated she was on the clock at the time of her injury. The record

further established Ms. Lemoine was working regular hours performing her duties as

Administrator of the Simmesport CARES Program by participating in its fundraising

event. That she changed from office attire to clothes more suited to working outside

is irrelevant. The fact that she elected to assist the CARE Program by helping at the

roadblock rather than by staying in the office does not place her outside of the course

and scope of her employment. Her participation in the event was part of her job

duties and clearly served her employer’s purposes in raising funds for a program

directly managed and controlled by it. Thus, the workers’ compensation judge was

clearly wrong in holding that the injury to Ms. Lemoine did not occur while she was

in the course and scope of her employment.