Risks Not Caused by the Employee in Louisiana Workers Compensation

City Park, New Orleans, Louisiana

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.

When employees are injured during recreational activities - such as a company picnic, ball game, bowling match, or some other entertainment sponsored by the employer - sometimes those employees are entitled to workers compensation benefits, but sometimes they are not entitled to workers compensation benefits.  

It really all boils down to the specifics of each case, and whether the employee was in the course of his or her employment at the time of the accident.

Typically, if attendance at the recreational activities is required, then those risks will be covered by workers compensation.  That is because those risks are in the course and scope (arise out) of the employment.

A good way to think of it is: does the employee think that he or she is at work during the recreational activities?

Also, Louisiana workers compensation courts typically consider the peculiar nature of the employment and focus on the supervisor's authority and influence over the employees at the recreational activities.

For example, workers compensation was awarded in a case where there was an employer-sponsored crawfish boil on a Friday evening, after which an employee took a partially-empty beer keg home at a supervisor's request so he could return to the catering service on Monday, and the employee was injured while trying to accomplish that return.

Workers compensation was also awarded in a case where an employee who was a “volunteer” at a city park for an event supported by her employer, was requested by her employer to attend, was designated as a “sponsor” to organize other volunteers, was given an employer's shirt to wear, and signed in on a sign-in sheet.

But again, workers compensation will not likely be awarded in cases where participation in a recreational activity is voluntary, and the employer receives no benefit at all from the activity.

In almost all cases, an employee will be covered by workers compensation when the employee is injured due to street traffic while in the course of his employment.

It does not matter if the employee's work requires his or her presence in the street continually, or only occasionally, or even only on the one occasion on which the employee is injured.

Risks from street traffic arise out of the employment irrespective of the nature of the employee's work, so long as the employee's duties called him or her to the place of the accident at the time it happened.

So the only possible question is whether the employee was acting within the course of the employment when he or she was injured in the street.  

In some situations, the employee will be acting within the course of the employment, and in other situations, the employee will not.  It just simply depends on the facts of the case.

Nonetheless, Louisiana courts have consistently allowed compensation to employees injured in traffic both while going to and coming from work in a vehicle furnished by the employer, and under other similar circumstances.

Lightning, Windstorms, and Floods

Generally speaking, an employee who is injured by lightning or windstorm or a flood will be covered by workers compensation in Louisiana, so long as the employee was in the course of the employee's job while injured by lightning or windstorm or a flood.

In other words, the nature of these risks does not matter, so long as the injured employee was at the place of the accident pursuant to the employee's job duties.

So whenever the employee is squarely within the course of his or her employment, virtually any weather-related risk which the employee might encounter is likely to be considered covered by workers compensation.

Heatstrokes

Usually - but not always - a sunstroke or a heatstroke is a risk that can be regarded as arising out of the employment and thus is covered by workers compensation in Louisiana.

Often, a sunstroke or a heatstroke is a risk that is entangled with other troubles present in these types of situations.

For example, in cases where heat plays an important part, the employee nearly always complains of consequent damage to the heart, and all considerations are likely to become merged in the issue of whether the heart ailment can be regarded as accidental injury.

But if, in fact, a sunstroke or a heatstroke caused an injury while the employee was at work or working, then a sunstroke or a heatstroke will be covered by workers compensation.

In almost all cases where the effect of heat played a part in an employee's injury, the courts have been satisfied that unusually hot working conditions prevailed at the premisesor that strenuous work combined with warmth resulted in the disability complained of.

Louisiana law holds that an assault injury is not considered as arising out of employment 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.”

But also, an employee who is assaulted at work is NOT covered by workers compensation if this employee was the initial physical aggressor in an unprovoked physical altercation (unless excessive force was used in retaliation against the initial aggressor).

In other words, an employee who is assaulted at work is covered by workers compensation if the assault came out of a dispute that was related to the employment and if this employee was not the initial physical aggressor.

So, in considering whether the risk of injury or death by assault is one that arises out of the employment, and therefore covered by workers compensation, the two critical questions are:

    1. Was the assaulted employee injured during the course of his employment?
    2. Did the victim invite the assault through his willful intention to injure another?

The burden of proof is on the employer to prove that the victim invited the assault through his willful intention to injure another person.  But if the employer succeeds in convincing the court that this was the case, there can be no recovery of workers compensation benefits, even if the accident happened during the course of the employment and arose out of it.

However, the burden of proof is on the employer to prove that the employee was in the course of his or her employment. For this reason, Louisiana Courts have denied workers compensation to employees in the following situations:

    1. The night watchman who had left his post and the premises and was shot by an armed robber in the store across the street;
    2. The supervisor of a chicken catching crew who was engaged in some nighttime activities of his own, some distance removed from the place where the employer's work was taking place when he was shot by a disgruntled husband;
    3. The intoxicated worker who showed up late for work and was ordered off the premises—but picked a fight with a co-worker before departing over issues that had nothing to do with work.

Additionally, if it is found that the assault arose out of the employment, the victim is protected not only from the direct harm brought about by the aggression itself but likewise from injuries he or she may have sustained through flight or self-protection.

It makes no difference whether these injuries are brought about through the employee's own conduct or the act of a third person, so long as the emergency continues. 

The Risk of an Accidental Shooting in Louisiana Workers Compensation

The experience in Louisiana courts with the risk of accidental shooting as arising out of the employment has been very similar to the treatment of the risk of assault.

When the employee is actively engaged in his task, awaiting the next assignment, or taking a permissible rest period and thus comfortably in the course of employment, such a risk of an accidental shooting is covered by workers compensation in Louisiana.

When the showing on “in the course of employment” is weak at best, the employee will likely have to prove that the risk of accidental shooting was actually greater for the employee than for non-employees, in order to recover workers compensation benefits 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.

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