What Are Improper Actions Not Covered by Workers Comp?

Are Accidents While the Employees Are Engaged in Own Affairs Considered a Workplace Accident?

New Orleans Workers Compensation Attorney Peter Diiorio

General speaking, the employee who abandons his or her work, with or without permission, for the purpose of attending to his or her personal business, is not acting within the course of the employee’s employment, and is thus not covered by workers compensation.

Exceptions to this general rule include rest periods, certain lunch breaks, and stand-by periods.

But the employee who leaves his work for his own affairs has separated himself or herself from his or her employment for the time being and is not entitled to compensation if the employee is injured.

Examples, where an employee would not be covered because the employee is engaged in his or her own affairs, include:

1. The employee who was electrocuted while using his employer’s electric blower at his residence on Sunday for general yard clean-up;
2. The employee who made two “business” telephone calls during a day-long adventure in New Orleans with his wife and another couple, which included a visit to the race track, stores, and a restaurant;
3. The employee who, although using an employer’s vehicle, was injured while merely outside a bar trying to get it started; and
4. The employee who deviated from work travel to his home for the alleged purpose of looking for his driver’s license.

Sometimes, Louisiana workers compensation courts do award benefits to employees whose injuries result from personal-purpose conduct.  Mostly, these awards are the result of:

1. Specific orders from the employer regarding the employee’s personal-purpose conduct;
2. An employer’s tolerance of the employee’s personal-purpose conduct during work hours; or
3. An employer’s benefit from the employee’s personal-purpose conduct.

Thus, Louisiana workers compensation courts will likely award benefits if the employer authorizes the employee to engage in personal work, and there is some benefit to the employer from the conduct.

Also, this authorization could be clear and express, but it could also simply be implied from other circumstances.

What is Horseplay in Louisiana Workers Compensation?

Sometimes the personal affairs in which the employee will be engaged will be frivolous, amounting to horseplay.

The Louisiana Workers Compensation Act holds that if the injured employee “was engaged in horseplay at the time of the injury,” 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.

Personal Disputes and Assault & Louisiana Workers Compensation

The Louisiana Workers Compensation Act holds that if the injured employee’s injury “arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment,” then his or her injury “should not be considered as having arisen out of the employment,” and therefore is not covered by workers compensation.

This basically means that some injuries from physical assaults at work are covered by workers compensation, and some injuries from physical assaults at work are not covered by workers compensation.

Whether injuries from physical assaults at work are covered by workers compensation all depends on whether the dispute arose out of the employment.

In other words, did the fight begin over something related to the job?  Or did the fight start over something separate and unrelated to the job?

If the fight is personal, then it is not covered under workers compensation. If the fight is business-related (or at least started over a business-related issue), then it is not covered under Louisiana workers compensation.

Are Accidents Employees Have While Assisting Third Parties Not Associated with Employers Considered Workers Compensation?

The employee who assists or helps out a third person not associated with the employer will only be covered under Louisiana workers compensation if the task that the employee was performing for the third party was “within the line of duty to his employer.”

Examples of when a task for a third party is “within the line of duty to his employer” include:

1. An employee who was injured when he stopped on land adjoining his work premises to cut a limb for the adjoining landowner;
2. An employee hired to install siding who was injured while assisting in unloading a truck delivering material sold to the employer; and
3. An employee, an automobile salesman, who was injured while he was attempting to close a deal with a customer by volunteering to accompany the customer to visit a relative in order to borrow money from the relative.

Of course, determining whether a task for a third party is “within the line of duty to his employer” will be highly based on the specific facts of each case.  

And fortunately, the employee is often given the benefit of the doubt in these matters.

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.