In the Course and Scope of Employment in Louisiana Workers Compensation
In order for an employee to be covered under Louisiana workers compensation, the employee’s accident must “arise out of employment” and occur “in the course of employment.”
The phrase “scope of employment” is a simpler way of saying “arising out of the employment.”
Thus, instead of “arising out of” and “in the course of” employment,” it is often said that in workers compensation, the employee’s accident must simply occur in the “course and scope” of employment.
The “scope of the employment” (or “arising out of employment”) relates to the character or origin of the injury suffered by the employee and whether this injury was connected to the employment.
This simply means that the workers compensation injury will not be covered unless it is related to the employment.
Also, an injury occurs in the scope of the employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.
The “course of employment” means that the employee sustained an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee.
Thus, the essential questions for the course of employment are:
- When did the accident happen?
- Where did the accident happen?
- What was the employee doing when the accident happened?
Basically, if the employee suffered an accident during work hours, or while actually doing his or her job, or at the employee’s place of employment, then in all likelihood, the employee will be covered by workers compensation.
But if it is less certain that an employee is injured in the course of employment, the injury must be more clearly related to employment, or (in other words) related to the scope of the employment.
This is because, even though a work accident must both arise out of and occur in the course of employment, the two requirements – course and scope – are interrelated. That is, if it is certain that one of the requirements exists, then it does not matter as much if the other requirement is not quite as certain.
IN THE SCOPE OF (OR ARISING OUT OF) EMPLOYMENT IN LOUISIANA WORKERS COMPENSATION
So again, if the employee suffers an accident during work hours, or while actually doing the duties of his or her job, or while at the employee’s place of employment, then the employee will be covered by workers compensation because the employee is clearly within the course of employment.
But is an employee who is injured during the course of her employment protected only against some accident risks and not against others?
In other words, is an employee covered under workers compensation if the employee is injured by lightning or a tornado, or assaulted by a stranger, or burned while lighting a cigarette, or breaks an arm while scuffling with a fellow worker?
This is an important question because, generally, an accident must be one that arises out of the employment as well as one that occurs during the course of the employment.
Louisiana courts have largely insisted that the risk that brought about the accident must bear some relationship to the nature of the employment.
Specifically, it ought to be good enough that the nature of the employment was such that the risk from which the injury resulted was greater for the employee than for a non-employee.
In other words, the employee’s accident must be the result of some risk to which the employee is subjected in the course of his employment, and to which he would not have been subjected had he not been so employed.
THE POSITIONAL RISK TEST AND THE INCREASED RISK TEST IN LOUISIANA WORKERS COMPENSATION
In Louisiana, the “arising out of employment” requirement is analyzed under one of two tests, depending on the circumstances of the accident and injury – the positional risk test and the increased risk test.
Basically, an accident arises out of the employment if the employee was engaged about his employer’s business at the time of the accident, and the necessities of the employer’s business required that he be at the place of the accident at the time the accident occurred.
The character of the risk is the essential question in determining whether the accident arose out of the employment.
But the principal emphasis should be placed on where the employee was, what the employee was doing, and what called the employee to the place of the accident (factors which normally are important only in determining whether the accident occurred during the course of the employment).
So whether or not the accident arises out of the employment, can be determined by time, place, and circumstance.
THE POSITIONAL RISK TEST
Under the positional risk test, any risk – whether a neutral risk or a personal risk – is still considered an employment risk if the employee is exposed to that risk while performing job duties at work during working hours.
In other words, a neutral risk can be considered an employment risk if the employee is exposed to that risk while at work.
An example of the positional risk test is when an employee is working at a job site, and then gets hit by a tornado. Now, technically the tornado is not an employment risk per se. However, aside from any consideration of the original source of the risk (the tornado), the employee is covered under the positional risk test, because the employee is required to be at the place where the accident occurred.
THE INCREASED RISK TEST
The increased risk test requires that the employee show that the employee had greater exposure to the risk because of employment.
The increased risk test only applies when the employee is not squarely in the course of employment.
SCOPE OF EMPLOYMENT: THE BOTTOM LINE IN LOUISIANA WORKERS COMPENSATION
So under Louisiana law, the courts may look at the source of the risk and determine whether or not the danger was greater for the injured employee than for a non-employee.
But on the other hand, an injured employee is entitled to compensation if the employer’s business required that the employee be at the place of the accident at the time the accident occurred, without reference to the origin of the risk that brought about the accident.
So at certain times, the worker will be protected against virtually any risk he or she may encounter.
These are the times when the employee’s activities are very closely connected with the employer’s business.
At other times, when the activities of the employee are barely within the employment, the employee will be protected only against risks that are closely associated with the employee’s duties or with the circumstances under which the employee works.
EXAMPLES OF WORKERS COMPENSATION COVERAGE IN LOUISIANA WORKERS COMPENSATION
Louisiana courts rightly consider the “arising out of” requirement, when there is doubt that the employee was in the course of employment.
Thus, Louisiana workers compensation has been denied to:
- An employee who had finished answering emergency service calls on a Sunday and was injured by the discharge of his shotgun as he removed it from the vehicle;
- An employee who was assaulted on non-working days;
- An employee who was assaulted while engaged in personal affairs off the premises; and
- An employee who deviated from a mission of fetching ice for an office party in order to steal items from the company warehouse.
These are instances in which the “arising out of” requirement was extremely weak, as was also the “in the course of” requirement.
So there is an interdependence of the positional risk test and the increased risk test.
Simply stated, where an employee is actively at work or standing by for an immediate return to his task and thus is squarely within the course of his employment, virtually any risk will be considered as arising out of the employment, whether it is an “increased risk” or not.
But where there is some doubt about whether the employee is within the course of his employment, workers compensation will be awarded only when the employment seems to have exposed the employee to a greater risk than those to which a non-employee might have been exposed.
THE LOUISIANA STATUTE ON ACCIDENTS IN THE COURSE AND SCOPE OF EMPLOYMENT IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on accidents in the course and scope of employment is La. R.S. 23:1031, which reads as follows:
§1031. Employee’s right of action; joint employers, extent of liability; borrowed employees
A. 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, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.
B. In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage liabilities to the employee; but nothing in this Section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments. If one or more but not all the employers are subject to this Chapter, then the liability of such of them as are so subject shall be to pay that proportion of the entire payments which their proportionate wage liability bears to the entire wages of the employee; but such payment by the employers subject to this Chapter shall not bar the right of recovery against any other joint employer.
C. In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a “special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a “general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.
D. An injury by accident shall not be considered as having arisen out of the employment and is thereby not covered by the provisions of this Chapter if the injured employee was engaged in horseplay at the time of the injury.
E. An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment.
Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1997, No. 315, §1, eff. June 17, 1997.