Frank J. Verret v. Tyson Foods, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1068

FRANK J. VERRET

VERSUS

TYSON FOODS, INC.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 15-01869
ANTHONY PAUL PALERMO, WORKERS’ COMPENSATION JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G.
Perret, Judges.

REVERSED AND RENDERED.

Jeffrey C. Napolitano
Juge, Napolitano, Guilbeau, Ruli, and Frieman
3320 W. Esplanade Ave. North
Metairie, LA 70002
(504) 831-7270
COUNSEL FOR EMPLOYER-APPELLANT:
Tyson Foods, Inc.

Harry K. Burdette
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR CLAIMANT-APPELLEE:
Frank J. Verret

PICKETT, Judge.

Tyson Foods, Inc. appeals the judgment of the Office of Workers’

Compensation (OWC) finding that the court had subject matter jurisdiction to

adjudicate Frank Verret’s claim against Tyson and the award of workers’

compensation benefits to Mr. Verret.

FACTS

Mr. Verret, a resident of Lafayette, Louisiana, was employed as a long-haul

truck driver for Tyson on January 25, 2015. On that date, Mr. Verret lost control

of his truck and crashed into the barrier in the median of a highway in Durant

County, Oklahoma. Mr. Verret suffered lacerations to his hand and complained of

back pain to the emergency medical personnel who responded to the scene of the

accident. He was transported to the Medical Center of Southeast Oklahoma

emergency room, where he repeated his complaints of back pain. The hospital

records show Mr. Verret’s back was x-rayed. According to hospital records, Mr.

Verret was given prescriptions for Flexeril and Prednisone, though Mr. Verret

denied getting these prescriptions at trial. The emergency room records also

suggest that Mr. Verret follow up with his doctor within two or three days. Mr.

Verret was then transported to McKinney, Texas for mandatory drug screening

before he returned to the Tyson facility in Springdale, Arkansas, where he had

begun his route on January 24, 2015.

When he returned to Springdale, Ms. Bonnie Cameron, a nurse employed by

Tyson, scheduled a follow-up appointment for Mr. Verret with Dr. Karl Haws.

She also gave him a voucher to have his prescriptions from the emergency room

doctor filled at a local pharmacy, though Mr. Verret denies this happened. Mr.

Verret saw Dr. Haws on January 27, 2015. Dr. Haws’s records indicate that Mr.

Verret stated that his back pain had resolved. Mr. Verret denies that he told Dr.

Haws that his back pain was resolved. Dr. Haws noted that Mr. Verret could

return to full-duty work.

Tyson’s employment records indicate Mr. Verret retired from Tyson on

January 28, 2015. He has never returned to work.

Mr. Verret filed a Disputed Claim for Compensation on March 26, 2015,

alleging injuries to his back and shoulders. Tyson denied that he was entitled to

workers’ compensation benefits. Tyson also filed a motion for summary judgment

(more appropriately a declinatory exception) alleging that the OWC lacked subject

matter jurisdiction to adjudicate this case. The workers’ compensation judge

(WCJ) referred the exception to the trial. Following a trial, the WCJ found that the

contract of hire between Mr. Verret and Tyson was formed in Louisiana, and

therefore the OWC had subject matter jurisdiction. The WCJ further found that

Mr. Verret’s back injury was related to the work accident and awarded benefits

retroactive to the date of the accident. The WCJ found that Mr. Verret’s shoulder

injury was not related to the accident. The WCJ did not award penalties and

attorney fees to Mr. Verret. Tyson Food now appeals the judgment of the WCJ.

ASSIGNMENTS OF ERROR

Tyson alleges three assignments of error:

1. The trial court erred in denying the employer’s Exception of Lack of Subject
Matter Jurisdiction.

2. The trial court erred in finding that the claimant’s accident caused any type
of disabling injury to his lower back.

3. The trial court erred in awarding disability benefits from the date of the
accident.

2

DISCUSSION

It is undisputed that this accident occurred in Oklahoma. Louisiana Revised

Statutes 23:1035.1(1) states:

If an employee, while working outside the territorial limits of
this state, suffers an injury on account of which he, or in the event of
his death, his dependents, would have been entitled to the benefits
provided by this Chapter had such injury occurred within this state,
such employee, or in the event of his death resulting from such injury,
his dependents, shall be entitled to the benefits provided by this
Chapter, provided that at the time of such injury

(a) his employment is principally localized in this state, or

(b) he is working under a contract of hire made in this state.

There is no dispute that Mr. Verret’s employment was not principally located in

Louisiana. While he parked his truck in Lafayette when he was not working, the

evidence shows that his routes always began at a Tyson facility outside of

Louisiana. Further, Mr. Verret, by his own admission, made limited deliveries to

customers in Louisiana.

The issue in this case for the purpose of subject matter jurisdiction is

whether the employment contract between Mr. Verret and Tyson was confected in

Louisiana. This court has determined that whether an employee is working under a

contract of hire made in Louisiana is a determination of fact which we will not

disturb on appeal unless it is manifestly erroneous or clearly wrong. Hanks v.

Kinetics Grp., Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878 So.2d 782, writs

denied, 04-1517, 04-1693 (La. 10/1/04), 883 So.2d 990, 994. In a workers’

compensation case, the intent of the parties is paramount in deciding whether a

contract should be regarded as a Louisiana contract or that of another state. Offord

v. Border to Border Trucking, 00-1201 (La.App. 3 Cir. 2/7/01), 779 So.2d

1090; Hurtado v. CJC Serv., Inc., 05-736 (La.App. 5 Cir. 3/14/06), 926 So.2d 624.

3

Mr. Verret learned that Tyson was hiring long-haul drivers from a friend of

his wife. Sometime in 1999, he traveled to a Tyson facility in Center, Texas, to

apply for a position. At some later time, Mr. Verret called Tyson from his home in

Lafayette, Louisiana, to inquire about the status of his application. Mr. Verret

claims that during this call, he was hired to drive for Tyson. He then drove to

Center to pick up his truck and begin his employment. He claims he would not

have returned to Center to get his work assignment unless he had been hired.

Tyson introduced the affidavit and deposition of Scott Wilkinson, the

terminal manager for the Tyson facility in Center before Mr. Verret was hired. As

terminal manager, Mr. Wilkinson oversaw hiring. Mr. Wilkinson explained that,

as an initial step, an applicant would have to appear in person at the facility in

Center to fill out an application for employment and sign a release for their driving

records. Mr. Wilkinson would review the application, the driving record of the

applicant, and contact references. If the applicant was still a prospect for

employment, the applicant had to return to Center for a drug test, a physical

examination, and a road test, all mandated by the United States Department of

Transportation. An applicant was not considered hired until he passed the drug

test, the physical examination, and the road test. Tyson contends that when Mr.

Verret called to inquire about the job from Lafayette, any offer of employment

would have been conditional until the required tests were passed, and Mr. Verret

would not actually be hired until he was in Center, Texas.

In Granger v. F.F.E Transportation Service, 98-127 (La.App. 3 Cir.

5/13/98), 713 So.2d 667, a recruiter for a trucking company contacted the claimant,

who at the time was a student at a driving school in Lake Charles. The claimant

completed an application for employment in Louisiana, an offer for employment

was made in Louisiana, and the employer provided transportation from Louisiana
4

to Texas for training. After completing training, the claimant was injured in

Indiana while in the course and scope of her employment. This court, citing a

similar situation in Lakvold v. Stevens, 95-866 (La.App. 1 Cir. 12/15/95), 665

So.2d 828, held that the OWC had subject matter jurisdiction to adjudicate the

claim because the contract for hire was made in Louisiana.

In Offord, 779 So.2d 1090, employees of a trucking company delivered an

application to the claimant in Louisiana. One of these employees later picked up

the application and returned it to the company’s personnel manager in Texas. The

personnel manager then contacted the claimant at his home in Opelousas and

offered him a job. When the claimant accepted the job, he was transported by

company employees to Texas to complete the formalities necessary for his

employment. The claimant was injured in the course and scope of his duties in

Tennessee. The WCJ held that the contract for hire was made in Louisiana. This

court affirmed, holding that the WCJ was not unreasonable in finding that the

OWC had subject matter jurisdiction.

In Baldwin v. North American Energy Services, 07-667 (La.App. 3 Cir.

10/31/07), 970 So.2d 101, writ denied, 07-2310 (La. 2/1/08), 976 So.2d 717, the

claimant suffered a head injury in an accident in the course and scope of his

employment in Las Vegas. While the claimant could not remember the details of

his hiring process, his friend, Clint Ainsworth, who was hired at the same time

testified about how he was hired. He contacted a company representative in Texas

about employment after hearing about a job in Las Vegas from another friend,

Justin Wells. Mr. Ainsworth testified that he was hired over the phone. Mr.

Giametta informed the men that they were hired as long as their drug screens were

negative. The drug screens were performed in Louisiana. After passing the drug

screens in Louisiana, Mr. Ainsworth and Mr. Wells flew to Las Vegas from
5

Alexandria to begin work. They were reimbursed by the company for their travel.

The WCJ determined that because the men initiated contact with the company

representative, the contract for hire was not made in Louisiana and found no

subject matter jurisdiction. This court reversed, finding that because “all

negotiation, paperwork, testing, and agreements were performed and finalized in

Louisiana,” the contract for hire was made in Louisiana. Id. at 103.

In Hesser v. Nabors Drilling USA, LP, 10-741 (La.App. 3 Cir. 12/8/10), 52

So.3d 1095, the claimant, while looking for employment, visited his friend at a

company rig in Westdale, Louisiana. The friend introduced the claimant to the rig

manager, to whom he recommended the claimant for employment. The rig

manager advised the claimant to visit the company’s human resource office in

Kilgore, Texas, but did not offer the claimant a job. The claimant then travelled to

Texas and completed a job application, a pre-employment physical, and drug and

alcohol screening. He then signed a conditional offer form, pending the results of

the drug screen, physical, a background check, and completion of all paperwork.

When these results were received, and while still in Texas, the claimant was

offered a job with the company. Three months later, while in the course and scope

of his employment in Texas, claimant suffered a back injury. He filed a Disputed

Claim for Compensation in Louisiana. Believing he had a job offer when he left

the rig in Westdale, the claimant argued that the contract of hire was formed in

Louisiana. The employer filed an exception of subject matter jurisdiction. The

employer introduced the testimony of the claimant’s friend and the Westdale rig

manager, who denied they offered the claimant a job. The WCJ found the contract

of hire was executed in Texas, and the OWC lacked jurisdiction. This court found

the WCJ made a credibility determination and affirmed the dismissal of the case.

6

In Martin v. Southwest Moving & Delivery, 29,892 (La.App. 2 Cir.

10/29/97), 701 So.2d 1351, the second circuit considered a case where the

claimant, a resident of Shreveport, was injured in California in the course and

scope of his employment with a moving truck company. The claimant originally

discussed the job with the owner of the company while in Florida. After returning

home to Louisiana, the claimant called the employer in Houston to further discuss

the job. The claimant, believing he had a job waiting for him in Houston, travelled

to Houston. The employer stated that all discussions about employment details

occurred in Houston. The WCJ determined that the OWC lacked subject matter

jurisdiction. The second circuit affirmed, stating “the only Louisiana contact in the

episode rests upon the fact that a Louisiana domiciliary initiated a phone call from

this state to a Texas employer.” Id. at 1354.

In Williams v. Morris Transportation, 50,054 (La.App. 2 Cir. 11/18/15), 184

So.3d 136, writ denied, 16-247 (La. 4/4/16), 190 So.3d 1207, the claimant, a

resident of Louisiana, was injured in the course and scope of his employment as a

truck driver in Mississippi while working for a company based in Arkansas. The

claimant worked for this company, left in 2006, and returned to work for the

company in 2007. The claimant filed a workers’ compensation claim in Louisiana.

The employer filed an exception of lack of subject matter jurisdiction. The WCJ

found that the claimant “had a reasonable expectation of a job” in Arkansas based

on a phone call that he originated in Louisiana with a representative of the

company. The WCJ denied the exception. The employer took a writ.

Before reviewing the circumstances of the claimant’s re-hire, the second

circuit reviewed the jurisprudence and the factors considered in the case:

Prior to the enactment of Section 1035.1, the Louisiana
Supreme Court considered a Mississippi work-related accident which
injured a Louisiana resident. Mattel v. Pittman Const. Co., 248 La.
7

540, 180 So.2d 696 (1965). The claimant, an ironworker, reported to
the union hall in New Orleans where he was directed by a union
officer to the defendant/employer’s jobsite in Gulfport. The terms of
employment with respect to wages and time were understood by the
claimant in New Orleans. The court found that by agreement, the
union had become the agent of the employer and was authorized to
make the job offer in New Orleans. The defendant’s claim that the
employer could have rejected the claimant at the jobsite did not
convince the court that the contract was not a Louisiana contract. The
court specifically noted that the employee did not go to the
employer’s office (presumably in Mississippi), fill out a written
application, or direct any oral requests for employment to the
employer. The court therefore determined that “the contract of hiring
was made in” Louisiana, not Mississippi.

This expression for the “making” of the contract thereafter
became codified as the test of Section 1035.1 in 1975. Thompson v.
Teledyne Movible Offshore, Inc., 419 So.2d 822 (La.1982). Recently,
this court in Hughes v. T.G. Mercer Consulting Services, 44,908
(La.App.2d Cir.12/9/09), 26 So.3d 954, writ denied, 10–0361
(La.4/23/10), 34 So.3d 267, surveyed the jurisprudence concerning
these cases involving the out-of-state employer and the injured
Louisiana resident. The Hughes review shows that the making-of-the-
contract test requires examination of the intent of the parties and how
and where the agreement was initiated through offer and
acceptance. The employer’s requirements for contract documentation
or drug testing, as in the present case, are factors for consideration.
The place of issuance of work implements or equipment is also a
factor. The facts concerning the employee’s travel from Louisiana to
the employer’s place of business for the initiation of the work
activities are considered as well.

Another consideration which is present in this dispute concerns
the interplay between the two tests of Section 1035.1. The WCJ easily
determined that the “localization” test did not show that the job
principally involved Louisiana performance. As an Arkansas
corporation, MTI did not have any offices in Louisiana. Its trucking
activities were not concentrated in Louisiana. Williams was not hired
to drive the MTI trucks for deliveries primarily in Louisiana. Thus,
the parties’ understanding of the place of the job performance
activities is also a measure of the parties’ intent for where the contract
was “made.”

Id. at 139 (footnotes omitted).

Applying these facts to the case, the second circuit found that the company

representative the claimant spoke to over the phone lacked the authority to hire

him. Further, as an experienced driver, the claimant knew of the federally-

8

mandated requirements, including drug testing, before he could formally be hired.

The claimant was not paid to travel to Arkansas before he was hired. The claimant

did not do any work in Louisiana before he was hired. The truck was provided to

the claimant in Arkansas. The second circuit concluded that the contract was made

in Arkansas, and the OWC lacked subject matter jurisdiction.

We find that the facts of Mr. Verret’s case are very similar to the situation in

Williams. Mr. Verret travelled to Texas to apply for a job with Tyson. While he

may have expected that he was hired when he returned to Texas a second time

based on his phone conversation while in Louisiana, Tyson introduced sufficient

evidence to show that Mr. Verret would not actually be hired until he passed a road

test and a physical examination. These are not mere formalities, but federally-

mandated requirements. The job was not principally located in Louisiana. Mr.

Verret had to go to Center, Texas, or Springdale, Arkansas, or some other Tyson

facility to pick up a load and actually begin getting paid for his job. Tyson did not

have any long-haul facilities in Louisiana, and Mr. Verret made infrequent

deliveries to Louisiana.

We find the WCJ committed manifest error in finding the OWC had subject

matter jurisdiction over this claim. The declinatory exception of lack of subject

matter is sustained. Mr. Verret’s claims against Tyson are dismissed.

CONCLUSION

The judgement of the WCJ is reversed. Costs of this appeal are assessed to

the appellee, Mr. Verret.

REVERSED AND RENDERED.

9