Risks Caused by The Employee in Louisiana Workers Compensation
Certain work-related risks are considered to “arise out of the employment” and are within the “scope of employment” and therefore covered under Louisiana workers compensation.
However, if a work-related risk does not “arise out of the employment” and thus is not within the “scope of employment,” then this risk (and any injuries resulting from the risk) will not be covered under Louisiana workers compensation.
HORSEPLAY IN LOUISIANA WORKERS COMPENSATION
Louisiana law holds that if the injured employee “was engaged in horseplay at the time of the injury,” then his or her injury “should not be considered as having arisen out of the employment,” and therefore is not covered by workers compensation.
In other words, if an employee is injured while engaged in horseplay, then this employee’s injuries will not be covered by workers compensation in Louisiana.
Also, Louisiana law requires the employee to demonstrate that he or she was not engaged in “horseplay” as a part of proving his or her case that the injury arose out of the employment (or was within the scope of the employment). So if the employer says that the employee was injured while involved in horseplay (and is thus not covered by workers compensation), then the employee must prove that he or she was not involved in horseplay.
Interestingly enough, there is no specific legal definition in Louisiana of exactly what horseplay is. In fact, the word horseplay is basically slang. Perhaps the courts just figure that we know it when we see it. But all the more reason to have a skilled, experienced workers compensation attorney argue on behalf of the injured employee.
COURSE AND SCOPE OF HORSEPLAY
Horseplay often occurs during prolonged “stand-by” periods.
But, on the other hand, the rough play may occur during a prolonged period when the employee has withdrawn from their employment for their own pleasure, perhaps in disobedience of orders. In such a situation, the employee might be regarded as suffering injury outside the course of his employment, and recovery could be denied for that reason.
Also, sometimes the victim of horseplay is not a participant in the game (or horseplay); and if the employee is performing his or her job at the time of the injury, then the accident will occur during the course of employment.
But, if the employee gets in an accident because of his or her willful intention to injure himself or to injure another, then the employee will not be covered by workers compensation under Louisiana law.
Yet ordinary horseplay is generally carried out in a spirit of fun, and is not more serious misconduct as is a willful intention to injure.
An employee who fails to perform his or her job duties and instead engages in activities for his or her own pleasure for an unreasonable time (or in violation of orders) is typically regarded as outside the course of his employment.
But should workers compensation should be denied solely because the risk of accident was created by the employee for his convenience or entertainment (and hence did not arise out of his employment)?
So long as the accident happened while the employee was actively at work or was standing by or enjoying a permissible rest period, the employee will not usually be denied workers compensation benefits just because the risk was the result of conduct involving the employee’s personal pleasure.
Importantly, an employee’s simple carelessness is not a bar to his claim for compensation.
The employee should not be denied workers compensation benefits, whether the risk was at least partially attributable to the conditions of the employment, or the risk was created entirely for the employee’s own purposes, so long as the accident clearly happened during the course of the employment.
Also, an employee who is injured at a time when the employee is acting in direct response to the employee’s (or supervisor’s) orders should be covered under Louisiana workers compensation, and therefore receive workers compensation benefits.
But if an employee who is injured because of risks that have nothing to do with the employment, then workers compensation will likely not cover this employee. This includes risks which the worker has created for his own pleasure or convenience.
An employee who is a victim of epilepsy, fainting spells, lapses of memory, or some other similar affliction may be more prone to accident than a normal employee.
But do risks which are attributable to such afflictions arise out of the employment? The short answer is yes.
So long as the accident happened while the employee was actively at work, or was standing by or enjoying a permissible rest period, the employee will not usually be denied workers compensation benefits just because the risk was the result of a physical peculiarity of the employee, such as epilepsy, fainting spells, lapses of memory, or some other similar affliction.
An accident which would otherwise be covered by workers compensation does not cease to arise out of the employment because it can be attributed in part to a physical infirmity of the employee. Such an accident will be covered by workers compensation in Louisiana.
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.