Timothy Cormier v. McNeese State University

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-12

TIMOTHY CORMIER

VERSUS

MCNEESE STATE UNIVERSITY

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 10-11131
SAM L. LOWERY, WORKERS‟ COMPENSATION JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders,
Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

Thibodeaux, Chief Judge, dissents and assigns written reasons.
Saunders, Judge, dissents and assigns written reasons.

REVERSED.

Adam L. Ortego, Jr.
Assistant Attorney General
One Lakeshore Dr., Suite 1200
Lake Charles, LA 70629
(337) 491-2880
COUNSEL FOR DEFENDANT/APPELLANT:
McNeese State University

Gregory P. Marceaux
Marceaux Law Firm, L.L.C.
2901 Hodges St.
Lake Charles, LA 70601
(337) 310-2233
COUNSEL FOR PLAINTIFF/APPELLEE:
Timothy Cormier

GREMILLION, Judge.

The Board of Supervisors for the University of Louisiana System (the Board)

appeals the judgment of the Workers‟ Compensation Judge (WCJ) in favor of

Timothy Cormier (Cormier), awarding him Temporary Total Disability (TTD)

benefits, medical expenses, penalties, and attorney fees. For the reasons that

follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On Sunday, September 16, 2010, Cormier was injured while cleaning the

tailgating area of McNeese State University‟s football stadium parking lot. It is

not disputed that Cormier was injured, nor is there dispute over the manner in

which he was injured. At the time, Cormier had volunteered to work in the parking

lot because he was incarcerated at the Calcasieu Parish Correctional Center and

participated in its trustee program. Cormier received no remuneration for the work

he performed as a trustee.

Following his release from the Calcasieu Parish Correctional Center in

November 2010, Cormier filed a Disputed Claim for Compensation with the

Department of Labor, Office of Workers‟ Compensation, in which he claimed that

he was employed by McNeese at the time of his injury and was entitled to medical

benefits, weekly indemnity, penalties, and attorney fees.

The Board filed an exception of no cause or right of action in which it

maintained that Cormier was not employed by it and, thus, that he was not entitled

to compensation. Supporting the Board‟s exception was an Agreement for

Utilizing Trustees between the university and the Calcasieu Parish Sheriff. This

agreement established that the university was responsible for transporting trustees

to and from the place of their assigned responsibilities, furnishing lunch for the

trustees, and ensuring that the trustees remained on its premises and adhered to

strict prohibitions against the possession of contraband items and from contact with

visitors. It further provided that the trustees were not to be compensated.

The WCJ heard the Board‟s exception on February 21, 2011. On April 6,

2011, the WCJ rendered oral reasons for judgment denying the Board‟s exception.

The WCJ reasoned that La.R.S. 23:1044 establishes a rebuttable presumption that

“[a] person rendering service for another in any trades, businesses or occupations

covered by this Chapter is . . . an employee under this Chapter.” McNeese, the

WCJ reasoned, had the right to engage and dismiss the trustees at will, had total

custody of the trustees, and was responsible for all of the trustees‟ medical

expenses. “Viewing the situation in its entirety, in accordance with the guidance

provided by the higher Court [Harrington v. Hebert, 00-1548 (La.App. 3 Cir.

5/23/01), 789 So.2d 649], it‟s difficult to see how Mr. Cormier could properly be

considered anything but an employee for purposes of workers‟ compensation

matters.”

The Board sought writs from this court, which were denied. Cormier v.

McNeese State Univ., 11-75 (La.App. 3 Cir. 11/4/11) (unpublished). We found no

error of law. Id. The Louisiana Supreme Court also denied writs. Cormier v.

McNeese State Univ., 11-2649 (La. 2/10/12), 80 So.3d 481.

The Board then filed a rule to show cause why Cormier had not forfeited

benefits during his period of incarceration. The WCJ summarily denied that rule.

Again, the Board sought writs from this court, which were granted in part and

denied in part. We liberally construed the rule to show cause as a motion for

summary judgment. The board was entitled to partial summary judgment on the

issue of Cormier‟s entitlement to benefits while incarcerated, but its application

2

was otherwise denied as to his entitlement to benefits after his release. Cormier v.

McNeese State Univ., 11-757 (La.App. 3 Cir. 11/4/11) (unpublished).

Cormier‟s claim for compensation proceeded to trial. Following the

presentation of evidence, the trial court found that our previous denial of writs

constituted law of the case, precluding the relitigation of the issue of whether

Cormier was an employee. It ruled in favor of Cormier, awarding him TTD

benefits of $154.00 per week from November 1, 2010; $8,000.00 in penalties for

failing to authorize physical therapy, a referral to a specialist, prescription benefits,

and failing to pay weekly indemnity benefits; and $17,190.00 in attorney fees. The

Board then perfected this appeal.

ASSIGNMENTS OF ERROR

The Board assigns the following as error below:

1. The Trial Court erred in finding that a parish prisoner, who volunteered
and was selected to be a [trustee] by a sheriff and assigned to provide free
labor to a public entity, is an employee of that public entity.

2. The Trial Court erred in designating a [trustee] assigned by a sheriff to
perform free labor for a public entity as an employee of that public entity
rather than ruling according to the express provisions of the contract
between that public entity and the sheriff.

3. The Trial Court erred in awarding indemnity, medical benefits, penalties
and attorney‟s fees to a parish prisoner selected as a [trustee] by a sheriff
and assigned to perform free labor for a public entity, where the [trustee]
was injured while providing such free labor at the public entity, when it
was not unreasonable to conclude that the prisoner was not an employee
of that public entity.

Fundamentally, the Board‟s arguments can be condensed to whether the WCJ

manifestly erred in finding that Cormier was its employee.

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ANALYSIS

Application of law of the case

Cormier relies on our ruling in Waller v. State of Louisiana, Department of

Health and Hospitals, 11-643 (La.App. 3 Cir. 11/9/11), 79 So.3d 1085, writ

denied, 11-2692 (La. 2/10/12), 80 So.3d 488, for the proposition that our previous

denials of writs constitute law of the case and preclude redetermination at trial or

in this tribunal of the issue of his employment status. Cormier conveniently

ignores the fact that in Waller, we recognized that the law of the case doctrine

admits of exceptions. Two of those exceptions are found when the previous panel

committed palpable error and when denying writs would result in manifest

injustice. Law of the case is, after all, a doctrine intended to promote judicial

efficiency. State v. Magee, 93-643 (La.App. 3 Cir. 10/5/94), 643 So.2d 497.

Magee recognized a third exception: when additional evidence is received on the

subject matter at issue.

The doctrine of law of the case is a discretionary doctrine. Clement v.

Reeves, 07-1154, 07-1155 (La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ denied,

08-0482 (La. 4/18/08), 978 So.2d 355. In Clement, 975 So.2d at 174, we quoted

our colleagues on the second circuit:

Typically, following the “law of the case” doctrine, reargument
of a previously decided point will be barred where there is simply a
doubt as to the correctness of the earlier ruling. However, the law of
the case principle is not applied in cases of palpable error or where, if
the law of the case were applied, manifest injustice would occur.

Rogers v. Horseshoe Entm’t, 32,800, pp. 5-6 (La. App. 2 Cir. 8/1/00), 766 So.2d

595, 600, writ denied, 00-2894 (La. 12/8/00), 776 So.2d 463, and writ denied, 00-

2905 (La. 12/8/00), 776 So.2d 464. There is, however, no palpable error arising

4

from our previous rulings. The context in which that ruling was made, however,

impacts the applicability of the doctrine.

The Board raised the issue of Cormier‟s employment status as an exception

of no cause of action. “The function of an exception of no cause of action is to test

the legal sufficiency of the petition by determining whether the law affords a

remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v.

Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). When the WCJ denied the

Board‟s exception, finding that the Board failed to overcome the presumption that

a worker is an employee, further inquiry into this issue was not foreclosed. The

denial of an exception of no cause of action is an interlocutory judgment. Fontenot

v. Miss Cathie’s Plantation, Inc., 93-926, 93-927 (La.App. 3 Cir. 3/2/94), 634

So.2d 1380. No relief was granted to either party; Cormier‟s claim was simply

allowed to proceed. Therefore, with regard to our denial of writs, finding no error

of law in the WCJ‟s ruling, we found just that—the denial of the Board‟s exception

was proper on the pleadings—and nothing more.

Similarly, the exception of no cause of action that was construed as a motion

for summary judgment was interlocutory to the extent that we denied writs. The

denial of writs did not determine the merits of the case; only the partial grant of

writs represented any determination of Cormier‟s rights, or lack thereof. The WCJ

did not grant a motion for summary judgment in Cormier‟s favor, as no such

motion was filed. No court ever determined that Cormier was entitled to post-

incarceration workers‟ compensation benefits until the judgment that is now being

appealed. The fact that during the hearing on the first exception the WCJ stated

that he had difficulty seeing Cormier as anything other than an employee did not

constitute a ruling that Cormier was an employee. Likewise, we simply ruled that

5

Cormier was not entitled to benefits while he was incarcerated, and that there was a

genuine issue of material fact regarding his entitlement to post-incarceration

benefits. There is, therefore, no law of the case to apply.

Even were the doctrine in play, it should not be applied here, as there is good

reason to rely on the exception to the rule; specifically, the WCJ took additional

evidence on the issue of Cormier‟s employment status. Six witnesses were called,

and all testified about the circumstances of Cormier‟s trusteeship. Those witnesses

seriously undermined Cormier‟s argument that he was employed by the university.

Thus, the doctrine of law of the case does not apply.

Determination of employment status

A determination by the WCJ regarding employment status is reviewed under

the manifest error/clearly wrong standard. See Dominio v. Folger Coffee Co., 09-

1278 (La.App. 4 Cir. 2/10/10), 32 So.3d 955, writ denied, 10-570 (La. 5/21/10), 36

So.3d 232. Only when an appellate court finds that a reversible error of law or

manifest error of material fact was made by the trial court may the appellate court

conduct a de novo review of the facts; indeed, when such an error is found, the

appellate court “is required, whenever the state of the record on appeal so allows,

to redetermine the facts de novo from the entire record and render a judgment on

the merits.” Wooley v. Lucksinger, 09-571, p. 51 (La. 4/1/11), 61 So.3d 507, 555.

We are admonished that the determination of whether manifest error has occurred

is not whether the trier of fact was right or wrong, but whether the
factfinder‟s conclusion was a reasonable one. See generally, Cosse v.
Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v.
Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co.,
558 So.2d 1106, 1112 (La.1990). Even though an appellate court may
feel its own evaluations and inferences are more reasonable than the
factfinder‟s, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review where conflict
exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989);

6

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where
documents or objective evidence so contradict the witness‟s story, or
the story itself is so internally inconsistent or implausible on its face,
that a reasonable factfinder would not credit the witness‟s story, the
court of appeal may find manifest error or clear wrongness even in a
finding purportedly based upon a credibility determination. Rosell,
549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the
reviewing court must always keep in mind that „if the trial court or
jury‟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.‟ ” Housley v. Cerise, 579 So.2d 973 (La.1991)
(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112
(La.1990)).
Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882-83

(La.1993). Here, the WCJ did not employ the analytical steps necessary to arrive

at a conclusion that Cormier was employed by McNeese, which we shall discuss

further. The language the WCJ used when the Board‟s exception of no cause of

action was denied, which we quoted above, was purely advisory and had no impact

on the matter before the court, i.e., whether Cormier had stated a cause of action.

When determining whether the relationship between a principal and an

individual represents that of employer/employee, a long line of cases holds that

courts must find that the former possesses the right to control the latter. See, e.g.,

Brown v. Zurich Am. Ins. Co., 07-353 (La.App. 3 Cir. 10/3/07), 966 So.2d 1160,

writ denied, 07-2139 (La. 1/7/08), 973 So.2d 728. In Brown, this court employed,

not for the first time, the four-part test first recognized by our colleagues on the

first circuit in Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487

(La.App. 1 Cir. 1950): in determining the right to control, the four primary

relevant factors are:

1) selection and engagement

2) payment of wages;

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3) power of dismissal;

and, 4) power of control.

No single factor is conclusive; “[r]ather, the totality of the circumstances must be

considered.” Harrington, 789 So.2d at 653.

The WCJ heard from three witnesses on the issue of Cormier‟s alleged

employment status. Cormier testified that when he was jailed, a deputy asked him

if he wanted a job. Cormier leapt at the opportunity because working outside the

confines of the main jail was preferable to staring at cell walls. Also, trustees were

housed in a dormitory at a sheriff‟s department substation rather than individual

cells at the main jail. On “regular detail,” Cormier and his fellow trustees working

at McNeese were picked up at the substation by a university-owned vehicle that

transported them to the school. The university also returned them after work hours.

Cormier did not submit an application for employment to McNeese. In addition to

work at McNeese, Cormier also worked at times as a trustee at the main jail.

Mr. Vincent Cormier is a grounds department employee at McNeese. He

was responsible for overseeing the work of the trustees. His testimony essentially

corroborated the appellee‟s. However, he also elaborated on the arrangements that

were in force on the day appellee was injured. This was a so-called “special

detail” on a Sunday afternoon. Trustees on “special detail” were transported to the

university by the sheriff‟s department. A sheriff‟s deputy would stay with the

“special detail” workers to prevent elopement.

Lastly, the WCJ heard from Assistant Warden Charles Lavergne of the

Calcasieu Parish Sheriff‟s Office. Lavergne oversees the trustee and other work-

release programs. The sheriff‟s department supplies labor to businesses and non-

profit entities through three programs. The Department of Public Safety and

8

Corrections (DPSC) has a work-release program that draws labor from the sheriff‟s

inmate population. Inmates working through the DPSC program are compensated

for their labors. The sheriff has his own work-release program, and workers

employed through that arrangement are also compensated. The trustee program is

the lowest tier of labor outside of the jail because the trustees are not compensated.

Lavergne also testified that the sheriff determines which trustee works for a

given agency. The agency bears responsibility for overseeing the activities of the

trustees in its custody, but if the agency is not satisfied with a trustee, only the

sheriff may remove the trustee. The sheriff also determines the hours a trustee will

work for an agency.

Right of selection and engagement

The uncontradicted testimony of Lavergne established that McNeese did not

have the right to select or engage Cormier. He was vetted by an application

process within the Calcasieu Parish Sheriff‟s Office. He was assigned to the group

of trustees that worked at McNeese by the sheriff‟s personnel. Nothing in the

record suggests that McNeese could request certain trustees or that it did in

Cormier‟s case. The element of selection and engagement does not present itself,

which mitigates against Cormier being an employee of the university.

Payment of wages

It is undisputed that Cormier was not paid by McNeese. Indeed, the

controversy arose in the case solely because McNeese paid no wages to Cormier.

The second factor is also absent.

Power of dismissal

Lavergne testified how an agency that receives trustee labor can have a

trustee removed. Were the university dissatisfied with a trustee‟s work, it would

9

notify the sheriff‟s office, which would remove the trustee from that job. The WCJ

found that the university had an “absolute right to engage and discharge” the

trustees. We find no reasonable support in the record for the proposition that

McNeese had the right to discharge trustees, and certainly no support whatsoever

for the proposition that it could engage them. And the right to engage and

discharge is only one factor that must be considered.

Power of control

Vincent Cormier was the McNeese employee who oversaw the work of the

trustees. With the exception of using riding lawnmowers, every activity of the

trustees matched those of the compensated employees of the university alongside

whom the trustees worked. Vincent Cormier told the trustees which tasks they

were to perform. It is abundantly clear from the record that from the moment the

trustees were picked up until they were returned to the sheriff‟s substation, they

were in the custody and control of the school. The fourth factor clearly presents

itself.

The presumption of employment status created by La.R.S. 23:1044 is

rebuttable. Smith v. Prime, Inc., 09-269 (La.App. 3 Cir. 10/7/09), 20 So.3d 1184.

“This presumption may be rebutted upon proof that there was no contract of

employment, either expressed or implied, between the alleged employee and the

alleged employer.” Gotto v. ARA Living Ctr., 570 So.2d 1172, 1174 (La.App. 5

Cir.), writ denied, 571 So.2d 634 (La.1990)(citations omitted). The presumption is

not only available to an alleged employee seeking workers‟ compensation benefits,

but also to principals seeking to avoid tort liability by virtue of the exclusivity of

the remedies afforded by the Louisiana Workers‟ Compensation Act. Brown, 966

10

So.2d 1160. See also La.R.S. 23:1032. Accordingly, those cases provide guidance

in determining employment status.

In Nguyen v. Underwriters at Lloyd’s, 05-1407 (La.App. 3 Cir. 5/3/06), 929

So.2d 821, writ denied, 06-1332 (La. 9/22/06), 937 So.2d 387, the plaintiff‟s

services had been retained on a “try out” basis at the defendant‟s seafood

processing facility and ice plant. He received no compensation during his

probationary period. During his probationary period, plaintiff fell through a grate

above an ice auger that amputated his right leg just below the knee. He sued the

defendant and its insurer for damages. The insurer answered and argued that its

policy excluded claims covered by workers‟ compensation laws.

The trial court relied almost exclusively on the fact that the plaintiff was

paid no wages when it granted summary judgment to plaintiff. We affirmed the

judgment “absent evidence of an actual agreement of employment and/or

compensation[.]” Id. at 824.

In Dustin v. DHCI Home Health Services, Inc., 95-1989 (La.App. 1 Cir.

5/10/96), 673 So.2d 356, plaintiff was enrolled in a medical support education

program operated by DHCI. Part of plaintiff‟s training involved actual work in the

emergency room at Earl K. Long Medical Center in Baton Rouge. He assisted in

restraining a violent HIV-positive patient. Plaintiff received direct contact with the

patient‟s blood and was positively tested for HIV. He sued DHCI and the hospital.

The hospital responded with an exception of lack of subject matter jurisdiction in

which it argued that plaintiff was an employee and could only receive workers‟

compensation. The district court rendered judgment in favor of the hospital.

The court of appeal noted, “[A]s a general rule, for such a relationship to

exist, there must be a contract of employment, either express or implied, whereby

11

services are furnished in anticipation of compensation.” Id. at 359. The workers‟

compensation laws are rooted in a wage loss theory. Id. When a worker receives

no wages, there is no basis for calculating workers‟ compensation benefits. Id.

Because the hospital did not select or engage the students and had no power to

expel students from the program, the hospital was not the employer of the students.

Id.

The totality of the evidence in the present matter demonstrates that there was

no service furnished by Cormier in anticipation of compensation. He volunteered

to furnish his labor in order to be allowed a few hours a day outside his jail cell.

McNeese did not select Cormier. McNeese did not fix Cormier‟s hours of work. In

short, there was no selection and engagement, no payment of wages, and no power

of dismissal. McNeese only had the right to tell Cormier what to do when he was

on the school‟s premises. Under these circumstances, the WCJ manifestly erred in

finding that Cormier was employed by the university. The judgment of the

Workers‟ Compensation Judge in favor of Timothy Cormier is reversed. All costs

of this appeal are taxed to plaintiff/appellee, Timothy Cormier.

REVERSED.

12

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-12

TIMOTHY CORMIER

VERSUS

MCNEESE STATE UNIVERSITY

THIBODEAUX, Chief Judge, dissenting.

While the proper resolution of this case should focus on procedure as

articulated in the following paragraphs, I agree with the substantive comments of

Judge Saunders.

The majority correctly recites the procedural history of this litigation,

particularly as it relates to the substance and posture of the pleading filed as an

exception of no cause or right of action which this court treated as a motion for

summary judgment.

We considered the document filed by McNeese as a motion for

summary judgment, not an exception of no cause of action, because evidence was

adduced. We specifically concluded:

We hereby liberally construe the rule to show cause filed by . . .
McNeese State University, as a Motion for Summary Judgment.
Thus, upon considering the admission by Claimant, Timothy Cormier,
that he is not entitled to workers’ compensation benefits during any
period of his incarceration, we find that the Relator [McNeese] is
entitled to a grant of partial summary judgment as to the forfeiture of
any workers’ compensation benefits to which the Claimant might
otherwise been entitled during any period of the Claimant’s
incarceration. La.R.S. 23:1201.4. However, we find no error in the
workers’ compensation judge’s denial of Relator’s [McNeese’s] Rule
as to any benefits to which the Claimant may be entitled following
Claimant’s release from incarceration. We remand this matter to the
workers’ compensation court for further proceeding in light of this
ruling.

Cormier v. McNeese St. Univ., CW11-757 (La.App. 3 Cir. 11/4/11)
(Unpublished).

We remanded this case after ruling on the writ for the purpose

of determining causation and extent of disability. The Office of Workers’

Compensation observed that the third circuit “pointedly and explicitly

rejected the main, indeed the only substantive, argument of the evidence that

no employee/employer relationship existed.” The OWC concluded that

McNeese’s conduct in continuing to pursue this rejected defense was not

only arbitrary and capricious, but also “contrary and hardheaded.”

The majority, nonetheless, erroneously proposes to reverse and hold

that no employer/employee relationship existed. The plaintiff, it says,

“conveniently” ignored certain exceptions regarding the “law of the case” doctrine.

Those exceptions are: (1) palpable error; (2) denial would result in manifest

injustice; and (3) when additional evidence is received on the subject matter at

issue. It concludes there is no palpable error. If so, why are we even reconsidering

employer/employee status?

The majority opines that no relief was granted to either party in our

writ ruling and that we found a denial of the Board’s exception was proper on the

pleadings—and no more. That is incorrect. The exception of no cause of action

should not be discussed because our court specifically recognized this pleading as

a motion for summary judgment.

The majority concludes that the context in which the previous third

circuit ruling was made on the writ application impacts the

applicability of the “law of the case” doctrine. The position that additional

evidence was received during the trial of this matter is incorrect. The evidence at

the trial, according to the workers’ compensation judge, “was in most respects

identical to the evidence previously presented to this court, as well as the third

2

circuit and the Louisiana Supreme Court.” The workers’ compensation judge was

not manifestly wrong in this regard. Indeed, the substance of the evidence never

changed. McNeese submitted additional testimony in the form of more witnesses.

These witnesses, however, did not add anything other than that which was already

considered. It was basically cumulative.

For all of the reasons cited above, I dissent and would affirm the

judgment of the Office of Workers’ Compensation.

3

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-12

TIMOTHY CORMIER

VERSUS

McNEESE STATE UNIVERSITY

Saunders, J., dissents and assigns written reasons

To me, the analysis of the issue in this case focuses too much on the law of the

case and not enough on the law of the state. In my view, the issues of who is the

employer of an inmate on work release and whether that injured work release inmate is

entitled to workers’ compensation benefits have long been settled. See Reynolds v.

Louisiana Plastic, 44,803 (La.App. 2 Cir. 11/28/09), 26 So.3d 149, writ denied, 09-2805

(La. 3/5/10), 28 So.3d 1013; Rogers v. Louisiana Dep’t. of Corrections, 43,000 (La.App.

2 Cir. 4/30/08), 982 So.2d 252, writ denied, 08-1178 (La. 9/19/08), 992 So.2d 931;

Clinton v. Reigel By-Products, Inc., 42,497 (La.App.2d Cir.9/19/07), 965 So.2d 1006;

Becnel v. Charlet, 446 So.2d 466 (La.App. 4th Cir.1984); Parker v. State, 353 So.2d 333

(La.App. 1st Cir.1977), writ denied, 354 So.2d 1375 (La.1978); La. Atty. Gen. Op. Nos.

00-501, 94-456, 79-1502.

I am cognizant that the citations above contain no cases from this Court. However,

the Rogers case was discussed by this court in Lee v. State, ex. rel. Department of Public

Safety and Corrections, 10-1013 (La.App. 3 Cir. 3/30/11), 60 So.3d 106. In Lee, this

court stated that it was, “convinced that the principles enunciated in Rogers with regard

to work release inmates not being employees of the State are applicable to the matter

before” them. Rogers appears to be in accord with the voluminous jurisprudence

available on this issue.

I am mindful of La.Civ.Code art. 13 and its principle that when interpreting

conflicting statutes, “the statute specifically directed to the matter at issue must prevail as

an exception to the statute more general in character.” Here, while admittedly not a

statute, we have case law from three of our four sister courts directly on point. Rather

than finding that case law persuasive, the majority opinion does not address these cases

and finds that Cormier is not an employee of McNeese based on analysis generally used

to adjudicate whether one is an employee of another.

Given the above, I would find that Cormier was the employee of McNeese.

Accordingly, I respectfully dissent.