Thursday, October 19, 2017

Volunteer and Scope

Workers' compensation is a social contract, codified in statutes, to provide benefits of a defined nature to individuals that are injured at work. Employers are liable to employees for workers' compensation benefits defined by statute, and in exchange are immune from civil law damages suffered by the employee. This is the "grand bargain" of workers' compensation. 

But what of the volunteer? A recent decision by the Louisiana First Circuit Court of Appeal provides some interesting insight into the volunteer, employment, and the "course and scope" of employment that is so often discussed in workers' compensation, Beasley v. Nezi LLC, d/b/a Subway, 2016 CA 1080, (Fla. 1st Cir. 2017). The appeal arose not from a workers' compensation proceeding, but from a civil case filed in the District Court in Baton Rouge, Louisiana. 

Ms. Beasley was injured when she slipped and fell in a Subway restaurant, of which she is an employee. Generally speaking, most employees in America are limited to workers' compensation when they are injured at work. However, Ms. Beasley filed a civil lawsuit seeking damages from the store, instead of filing a workers' compensation claim. She alleged that the day she fell was her "day off." From her perspective, she was no different on that day than any other member of the public else that visited Subway.

But, Ms. Beasley was one of the managers of the Subway store. Though it was her "day off," she was called by a Subway employee and told that "the ice machine was not operating." Often, people like ice in their soft drinks. If you live in the south, where it is hot, you may find this ice preference is more of a necessity than a preference. And, by definition, it is simply not "iced tea" if the recipe does not include ice. 

Ms. Beasley apparently recognized the importance of the ice. She called a supervisor to seek ice, but learned it could not be delivered to the Subway in time for the expected lunch rush. Ms. Beasley therefore "decided to obtain the ice herself and deliver it to the restaurant." 

It was as she walked to the ice machine in the Subway that "she slipped and fell in a puddle of water." Her lawsuit alleged that the fall was caused because Subway "allowed water from a leaking water heater to accumulate on the floor." That was admittedly a bit unexpected; reading the court opinion, I frankly anticipated that the water resulted from the malfunctioning ice machine.

Ms. Beasley's lawsuit disregarded the "exclusive remedy" of workers' compensation by alleging "she was not within the course and scope of her employment" the day of the accident; it was her "day off." She noted that she was not paid for that day, and that her presence in the restaurant was "[a]s a favor and purely gratuitously." She was acting on her own, and was not "subject to anyone's direction or control" in electing to appear there with ice.

The employer objected to the matter proceeding in the District Court, and successfully sought to have the case dismissed. The District Court concluded that it had no authority, or "jurisdiction" in the case because Ms. Bealsey's injury was a workers' compensation accident. The Circuit Court (appellate court in Louisiana) agreed, and explained the concept of "course and scope" of employment.

First, the Court explained that "Jurisdiction is the legal power and authority of a court to hear and determine an action," and "to grant the relief" that is sought. The Court noted that "original jurisdiction" regarding workplace accidents is "vested exclusively with workers' compensation judges." Thus, if Ms. Beasley's accident was within the course and scope, then the only judge that had authority over her case was the workers' compensation judge.

As in many states, the test of whether an injury is work related is a two-part analysis of whether the injury was from an accident (1) "arising out of'' and (2) "in the course of'' employment. The court explained that these are interrelated, but "distinct" parameters for determining work-relatedness.

The "principal criteria for determining 'course of employment' are time, place, and employment activity." In other words, when, where, and what (was the employee doing) are critical to the determination of whether an injury was in the "course of employment." The Court noted that therefore an
accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer's premises or at other places where employment activities take the employee.
The Court also explained the legal requirement that the injury "arise out of'' employment. This is not a time, place and activity requirement, but a causation requirement. It "relates to the character or origin of the injury." The inquiry is "whether the injury was incidental to the employment." 

It is noteworthy that the Beasley Court repeatedly cited the Louisiana Supreme Court analysis McLin v. Industrial Specialty Contractors, Inc., 851 So. 2d 1135 (La. 2003) to explain these principles. Suffice it to say that the concepts of both "arising out of" and "course of employment" are not novel issues in Louisiana jurisprudence. 

The Court noted that whether Ms. Beasley was scheduled to work, obligated to deliver the ice, or paid were "not necessarily determinative." The Court explained that she was a manager, and went to the Subway for "an employment-related issue," and therefore the "origin of her injury is employment." She was called precisely because she was employed as a manager, and she responded for the same reason. The Court explained that her actions were "inextricably linked to her employment." 

There is a side-lesson in this decision also. The Court noted that when Subway moved to dismiss this complaint, Ms. Beasley provided the trial court an affidavit, which was attached "to her opposition memorandum." And, that affidavit might provide the evidence to support the lack of employment relationship, and allow the case to proceed in the District Court. However, "the affidavit was not introduced into evidence." As such, the affidavit was "not a part of the reviewable record." Sometimes technical issues can befuddle even the best attorneys. 

Most appellate courts do not consider facts and evidence that is not part of the record. Of course, other appellate courts consider and rely upon non-record evidence. Some even rely on evidence outside the record from such dubious sources as Wikipedia. But, most appellate courts limit analysis to the evidence that is in the record, meaning evidence that was presented at the trial and considered by either the trial judge or jury. In Beasley, the lawyer failed to introduce the affidavit into evidence, and was therefore precluded from relying upon it in the appellate court. 

The Court concluded that dismissal by the trial court was appropriate because the facts in evidence supported that Ms. Beasley was engaged in work activity when she slipped and fell, despite the fact that she was doing so voluntarily and without additional compensation. 

Judge Holdridge disagreed with the conclusion and provided a dissenting opinion. Judge Holdridge focused on the Louisiana Constitutional premise that the "district court shall have original jurisdiction of all civil and criminal matters." Noting that workers' compensation is a statutory exception to that premise, Justice Holdridge contended it is clear that workers' compensation jurisdiction is "only for 'claims or disputes arising out of' the Workers' Compensation Act.'" 

Because this is an "exception" to the constitutional jurisdiction of the District, Judge Holdridge noted, Subway should not be allowed to claim workers' compensation immunity and exclusivity unless it can prove "that the injury to the plaintiff arose out of and was in the course of her employment." But, Subway presented no proof, and merely relied upon the allegations and evidence submitted by Ms. Beasley. Judge Holdridge urged that therefore the allegations of Ms. Beasely must "overwhelmingly prove" that Subway is "entitled to a judgment," that is the dismissal of the civil lawsuit. Judge Holdridge contended Subway did not meet that burden. 

The Court's analysis and holding supported the outcome sought by Subway in this case, that is that Ms. Beasely is limited to a recovery in workers' compensation. However, the decision also presents the corollary in future workplace accidents. Employers in Louisiana now know that "off duty" workers, not being paid or directed in their activity, may nonetheless be in the course and scope of employment and therefore entitled to workers' compensation benefits.