Arline Theriot v. Full Service Systems Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1199

ARLINE THERIOT

VERSUS

FULL SERVICE SYSTEMS CORP.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION – Dist. 03
PARISH OF CALCASIEU, NO. 13-06395
CHARLOTTE A. L. BUSHNELL, WORKERS COMPENSATION JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and David Kent
Savoie, Judges.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED FOR WORK
PERFORMED ON APPEAL.

GREMILION, Judge, dissents and assigns written reasons.

Paul J. Cox
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLEE:
Arline Theriot

Elizabeth Lynn Finch
Keith E. Pittman
Juge, Napolitano, Guilbeau, Ruli & Frieman
3320 W. Esplanade Ave. North
Metarie, LA 70002
(504) 831-7270
COUNSEL FOR DEFENDANT/APPELLANT:
Full Service Systems Corp.

SAVOIE, Judge.

In this workers’ compensation case, the employer, Full Service Systems

Corporation (“employer”), appeals the Workers’ Compensation Judge’s (WCJ’s)

finding that its employee’s accident arose out of and in the course of her

employment. For the reasons that follow, we affirm, and award Ms. Theriot an

additional $3,000.00 for attorney fees incurred in connection with the defense of

the appeal.

FACTS

On December 25, 2012, Ms. Theriot was scheduled to work for her

employer as a porter at the L’Auberge du Lac Casino in Lake Charles, Louisiana.

Her shift began at 11:00 p.m. Ms. Theriot alleged that between 10:35 p.m. and

10:45 p.m., as she searched for a parking space in one of the casino’s parking lots

where casino employees and employees of casino contractors were instructed to

park, she was struck by a vehicle driven by a casino employee. The collision

resulted in an injury to Ms. Theriot’s neck.

Ms. Theriot filed a Disputed Claim for Compensation alleging that her

employer had not authorized cervical surgery recommended by Dr. Gregory

Rubino. Ms. Theriot also sought penalties and attorney fees for her employer’s

alleged arbitrary and capricious failure to approve the neck surgery. Trial was held

on July 16, 2014

At issue for trial was whether Ms. Theriot’s accident arose out of and

occurred in the course of her employment, and whether the recommended cervical

surgery was reasonable and necessary. Prior to trial, the parties had stipulated (1)

to the amounts to be awarded for penalties and attorney fees, (2) that the injuries

claimed by Ms. Theriot were caused by, or aggravated by, the accident at issue, (3)

that the recommended neck surgery was related to the auto accident, and (4) that

the Medical Director identified that the surgery meets the medical treatment

guidelines.

Ultimately, the WCJ rendered judgment on September 11, 2014, finding

“that Arline Theriot is entitled to have the neck surgery recommended by Dr.

Gregory Rubino" and ordering that

1) Defendant and claimant have stipulated that the defendant owes
$2,000 in penalties and $5,000 in attorney fees;

2) Claimant was in the course and scope of her employment at the
time of the accident;

3) The neck surgery recommended by Dr. Gregory Rubino is
reasonable and necessary; and

4) The need for neck surgery is causally related to the work place
accident; . . .

The employer lodged this appeal, and Ms. Theriot has answered the appeal.

DISCUSSION

Arising Out of And In the Course of Employment:

The employer’s sole assignment of error is that the WCJ erred in concluding

that Ms. Theriot suffered an accident arising out of and in the course of her

employment.

As we recognized in Williams v. Pilgrim’s Pride Corp., 11-59, pp. 3-4

(La.App. 3 Cir. 6/1/11), 68 So.3d 616, 619-620; writ denied, 11-1793 (La.

10/21/11) (citations omitted),

An employee is entitled to compensation benefits if he receives
a personal injury by accident arising out of and in the course of his
employment. The requirement that an employee’s injury occur “in the
course of” employment focuses on the time and place relationship
between the injury and the employment. An accident occurs in the
course of employment when the employee sustains an injury while
actively engaged in the performance of his duties during work hours,

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either on the employers’ premises or at other places where
employment activities take the employee. The 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.

A workers’ compensation claimant has the burden of proving,
by a preponderance of the evidence, that the disability suffered is
related to an on-the-job injury. The question of whether a claimant is
entitled to compensation benefits is a question of fact, and a WCJ’s
determination may not be disturbed on appeal absent manifest error.
Only when documents or objective evidence so contradict the
witness’s story, or that story itself is so internally inconsistent or
implausible on its face that a reasonable fact finder would not credit it,
may the appellate court find manifest error.

Generally, injuries sustained by an employee while traveling to
and from work are not considered to have occurred within the course
of employment and, therefore, are not compensable under the
Workers’ Compensation Act. This rule, often referred to as 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.

However, the well-established “going-and-coming rule” is
subject to the following exceptions recognized by the jurisprudence:
(1) if the accident occurred on the employer’s premises; (2) if the
employee was deemed to be on a specific mission for the employer;
(3) if the employer had interested himself in the transportation of the
employee as an incident to the employment agreement either by
contractually providing transportation or reimbursing the employee
for his travel expenses; (4) if the employee was doing work for his
employer under circumstances where the employer’s consent could be
fairly implied; (5) if the employee was injured while traveling to and
from one work site to another; (6) if the employee was injured in an
area immediately adjacent to his place of employment and that area
contained a distinct travel risk to the employee (“the threshold
doctrine”); or (7) if the operation of a motor vehicle was the
performance of one of the duties of the employment of the employee.
Whether an exception applies is a question of fact.

Moreover, provisions of the Louisiana Workers’ Compensation Act are to be

liberally construed in favor of the injured employee. Pinkins v. Cardinal Wholesale

Supply, Inc., 619 So.2d 52 (La.1993).

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In Williams, 68 So.3d 616, we considered whether a workers’ compensation

claimant’s accident arose out of and in the course of his employment. At the time

of the accident, the employee had completed his shift, driven his personal vehicle

out of the employee parking lot, and had entered into a roadway that approached a

highway. As he approached the highway, a pipe gate propelled by hurricane winds

entered the windshield of the employee’s vehicle and injured him. We found there

was no manifest error in the WCJ’s conclusion that the accident happened on the

employer’s premises, and therefore affirmed the finding that the accident arose out

of and in the course of employment.

Similarly, in the instant case, we find no manifest error in the WCJ’s factual

finding that Ms. Theriot’s accident occurred on the employer’s premises. In its

written reasons for judgment, the WCJ made the following findings of fact:

[O]n December 25, 2012, between the hours of 10:35 and 10:45
P.M. [,] the claimant was looking for a parking space in the parking
lot of the L’Auberge Du Lac casino when a vehicle driven by a casino
employee struck the claimant’s vehicle causing an automobile
accident. . . .

[W]hile the casino does not mark parking lots as employee lots,
the employees were instructed to park in the parking lot where the
accident occurred. . . .

[T]he claimant elected to drive her own vehicle to work. . . .

[T]he parking lot where the accident occurred is the closest to
the employee entrance and most employees park there. . . .

[T]he claimant, Ms. Theriot, had arrived at work when the
accident occurred. She was neither going nor coming from work. She
was at work, and she was on the employer’s premises. The parking
conditions of a casino with thousands of patrons are necessarily
complex and unique. . . . It is clear that in the process of parking her
car in the place closest to the employee entrance where her
supervisors directed her to park, she was struck by a L’Auberge
employee’s vehicle.

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The testimony and evidence in the record reasonably supports the WCJ’s

factual findings. Therefore, we affirm the WCJ’s finding that Ms. Theriot’s

accident arose out of and was in the course of her employment.

Additional Attorney Fees For Defense of Appeal:

Ms. Theriot answered the appeal seeking additional attorney fees for the

defense of the appeal. Because the Appellant obtained no relief on appeal, we find

an award of an additional $3,000.00 in attorney fees in connection with this appeal

is appropriate.

DECREE

The judgment of the WCJ is affirmed. Additional attorney fees for the

defense of the appeal in the amount of $3,000.00 are awarded to Plaintiff/Appellee,

Arline Theriot. All costs of this appeal are taxed to Defendant/Appellant, Full

Services Systems, Inc.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED FOR WORK
PERFORMED ON APPEAL.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1199

ARLINE THERIOT

VERSUS

FULL SERVICE SYSTEMS CORP.

GREMILLION, J., dissents.

I dissent from the majority’s ruling and assign the following written reasons.

FACTS

On Christmas Day, 2012, Ms. Theriot was scheduled to work for the

employer as a porter at the L’Auberge du Lac Casino in Lake Charles, Louisiana.

Her shift began at 11:00 p.m. She arrived at the casino before her shift, as she was

required to gather the essentials for her tasks before her assigned shift began. As

she searched for a parking space in the casino lot, Ms. Theriot was struck by a

vehicle driven by a fellow casino worker. The collision resulted in an injury to Ms.

Theriot’s neck, which was subsequently determined to be causally related to the

accident and which requires surgery.

Ms. Theriot’s employer disputed that her injury was incurred in the course

and scope of her employment. Ms. Theriot filed a Disputed Claim for

Compensation. Trial on the claim was held on July 16, 2014. Before trial, the

parties stipulated that Ms. Theriot’s injuries were caused by the accident; that the

surgery was medically necessary; that the Medical Director had determined that the

recommended surgery met the Medical Guidelines for compensation injury

treatment; and that the only issue for trial was whether Ms. Theriot was in the

course and scope of her employment when she was injured.

“If 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, [her] employer shall pay compensation in the amounts, on the

conditions, and to the person or persons hereinafter designated.” La.R.S.

23:1031(A). Determinations of whether an employee is in the course and scope of

her employment at the time of the accident are factual findings reviewed under the

manifest error standard. Kennedy v. Martin Gas Transp. Co., Inc., 96-100

(La.App. 3 Cir. 8/21/96), 680 So.2d 1195, writ denied, 96-2838 (La. 1/24/97), 686

So.2d 860. No such deference is owed to the WCJ’s conclusions of law, though.

In Kennedy, the employee was driving home after work when he was

involved in an automobile accident. He claimed that he was entitled to workers’

compensation benefits. The WCJ disagreed and denied his claim. On appeal, this

court reiterated the time-honored general rule: traveling to and from work is not

considered in the course and scope of an employee’s work. However, the court

also discussed seven jurisprudentially-recognized exceptions to the rule:

However, there are exceptions to this general rule. In reviewing
this area of our jurisprudence, the second circuit in Yates [v. Naylor
Indus. Servs., Inc.], 569 So.2d [616] at 619-620, observed:

[T]his rule has been subject to a number of
jurisprudentially established exceptions. For example,
these exceptions have arisen:

(1) If the accident happened on the employer’s premises;

(2) If the employee was deemed to be on a specific
mission for the employer, such as making a trip in the
interest of his employer’s business or pursuant to his
employer’s order;

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(3) If the employer had interested himself in the
transportation of the employee as an incident to the
employment agreement either by contractually providing
transportation or reimbursing the employee for his travel
expenses;

(4) If the employee was doing work for his employer
under circumstances where the employer’s consent could
be fairly implied;

(5) If the employee was hurt while traveling to and from
one work site to another;

(6) If the employee was injured in an area immediately
adjacent to his place of employment and that area
contained a distinct travel risk to the employee, also
known as the threshold doctrine; and,

(7) If the operation of a motor vehicle was the
performance of one of the duties of the employment of
the employee.

Kennedy, 680 So.2d at 1197. For purposes of the first exception, though,

“employer’s premises” means “only that area where the employees are confined

during their employment hours when they are engaged in their employer’s

industry, labor, or trades.” Justice v. Sylvester, 499 So.2d 590, 593 (La.App. 5 Cir.

1986), writ denied, 503 So.2d 491 (1987). The accident must also relate spatially

and temporally to the functions or duties the employee performed while working.

Id. Here, the WCJ apparently concluded that “premises” simply means “property

owned by the employer.” This interpretation represents an erroneous conclusion of

law, and the majority compounds this erroneous conclusion. The Yates quotation

is simply a shorthand list, and as such is simple dicta that should not be relied upon

to shape future holdings, as was done in the Williams case1 cited by the majority

and in the present matter. It further does not suffice to say that the provisions of

1
Williams v. Pilgrim’s Pride Corp., 11-59 (La.App. 3 Cir. 6/1/11), 68 So.3d 616, writ
denied, 11-1793, 11-1794 (La. 10/21/11), 73 So.3d 384.

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the Workers’ Compensation Act are to be liberally construed, when what the

majority is actually liberally construing is dicta that merely attempted to

summarize prior case law.

No evidence established that Ms. Theriot’s duties were performed outside

the casino premises. She described her duties as “doing custodial work, cleaning,

cleaning the bathrooms and, you know, vacuuming the—the cafeterias and— I was

doing all sorts of work.” Therefore, the “premises” exception does not apply to

Ms. Theriot’s case. The WCJ manifestly erred.

In Powell v. Gramercy Ins. Co., 13-928 (La.App. 5 Cir. 4/23/14), 140 So.3d

324, a convenience store employee struck a pedestrian in the convenience store

parking lot. The employee had clocked in but left for a doctor’s appointment and

was returning when the accident took place. The employee’s work duties did not

involve driving. She was not being paid at the time. The fifth circuit found that

the employee was not acting within the course and scope of her employment.

Similarly, in Knowles v. State Farm Mut. Auto. Ins. Co., 12-806 (La.App. 5 Cir.

3/27/13), 113 So.3d 417, a medical clinic employee who was not required to

operate a vehicle other than to get to and from work, was not on a mission for the

clinic, and had not yet reported for work was not in the course and scope of her

employment when she struck a pedestrian in the clinic’s parking lot.

The principle behind workers’ compensation has been summarized

appropriately as follows (emphasis added):

Society slowly came to recognize that by relieving the blameless
employer of liability [under tort], the law was encumbering other
blameless persons or institutions with the cost of industrial accidents.
This realization was accompanied by the suggestion that industry
should be required in some way or another to bear at least a part of the
risk it was creating.

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Malone & Johnson, 13 Louisiana Civil Law Treatise: Workers’ Compensation,
§31 (4th Ed.).

Accordingly, the WCJ erred as a matter of law in finding that Ms. Theriot

was in the course and scope of her employment. No exception to the general rule

that going to and coming from work is outside the course and scope of

employment was proven. That the accident occurred in the casino parking lot is

irrelevant because Ms. Theriot was still outside the area in which she was confined

during her employment hours and where she engaged in the labor and industry of

her employer. Course and scope of employment is determined by the functions the

employee is engaged in at the time an accident occurred and not whether the

employee had crossed an invisible property line.

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