Kimble v. Fibrebond Corp.

830 So. 2d 422, 2002 La. App. LEXIS 3198, 2002 WL 31375071
CourtLouisiana Court of Appeal
DecidedOctober 23, 2002
DocketNo. 36,469-WCA
StatusPublished

This text of 830 So. 2d 422 (Kimble v. Fibrebond Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimble v. Fibrebond Corp., 830 So. 2d 422, 2002 La. App. LEXIS 3198, 2002 WL 31375071 (La. Ct. App. 2002).

Opinion

JjPEATROSS, J.

This appeal arises from a worker’s compensation judgment awarding worker’s compensation benefits to the plaintiff, Bobby Kimble (“Kimble”). The defendant, Fibrebond Corporation (“Fibre-bond”), appeals the judgment. For the reasons stated herein, we affirm.

FACTS

Kimble was employed by Fibrebond on January 19, 2001, when he was injured at work. On the morning of the accident, Kimble was working outdoors in the area Fibrebond employees call the “Back Forty.” In order to keep warm on colder days, Fibrebond employees working in the “Back Forty” would burn wood in barrels. The employees would use whatever scrap wood they could find. Kimble was breaking up an old wooden pallet when a splinter from the wood entered his eye. He was using a brick or chunk of concrete to throw down onto the pallet to break it into pieces. At the time of the injury, Kimble was not wearing his company issued safety glasses.

On February 21, 2001, Kimble sought worker’s compensation benefits from Fi-brebond. Citing an affirmative defense under La. R.S. 23:1081(l)(c), Fibrebond refused to pay the benefits. Under La. R.S. 23:1081(l)(c), an employee is precluded from recovering worker’s compensation benefits if he deliberately failed to use an adequate employee provided guard/protection to prevent an accident. Fibrebond maintained that Kimble’s deliberate failure to wear the safety glasses relieved Fibre-bond of its duty to pay him worker’s compensation benefits. Kimble then filed a claim against Fibrebond for benefits with the Office of Worker’s ^Compensation. A trial was held on October 30, 2001. At the trial, it was determined by the Worker’s Compensation Judge (“WCJ”) that Fibre-bond issued safety glasses to Kimble on his first day of employment and he was required to have the glasses on at all times in the production areas and on the grounds of the Fibrebond plant. Kimble admitted in his testimony at trial that, even though [424]*424he had the safety glasses on his person, he was not wearing them the morning of the accident. The WCJ found that Kimble had knowledge of the function, use and adequacy of the safety glasses and that he voluntarily and intentionally failed to use his safety glasses the day of the accident; however, the WCJ further found that Kim-ble’s actions were not deliberate, or obstinate, but merely ill-considered, lacking premeditation, malice and a willful intent to injure himself.

The WCJ rendered judgment on January 31, 2002, finding that Fibrebond failed to prove its affirmative defense and that the evidence did not warrant forfeiture of Kimble’s worker’s compensation benefits. Kimble was awarded temporary total disability benefits covering January 19, 2001, through February 14, 2001; mileage expenses for miles traveled for medical treatment; and medical expenses incurred from January 19, 2001, through May 15, 2001. Fibrebond now appeals, asserting that the trial court erred in not applying the La. R.S. 23:1081(l)(c) affirmative defense in bar to Bobby Kimble’s claims against Fi-brebond Corporation.

DISCUSSION

Fibrebond contends that Kimble’s injury is not compensable because Kimble was deliberately not wearing his safety glasses at the time of the ^accident and that La. R.S. 23:1081(l)(c) is an affirmative defense to having to pay worker’s compensation benefits when an employee deliberately fails to use a safety device.

La. R.S. 23:1081(l)(c) provides, in pertinent part:

(1) No compensation shall be allowed for any injury caused:
(c) By the employee’s deliberate failure to use an adequate guard or protection against accident provided for him....

The employer bears the burden of proving its defense under La. R.S. 23:1081(l)(c). Allen v. Louisiana Wood Moulding Corporation, 29,947 (La.App.2d Cir.1/23/98), 706 So.2d 636. In the instant case, the WCJ held that Fibrebond failed to carry its burden. We agree.

In order to prove this defense, an employer must show (1) premeditation or malice on the part of the injured employee and (2) a reasonable expectation that injury would result from the employee’s actions. Attaway v. Farley’s Glass Co., Inc., 430 So.2d 705 (La.App. 2d Cir. 1983). An employee is not disqualified from worker’s compensation benefits by his instinctive or impulsive acts even if he is to blame for his injury. Attaway, supra. The failure or refusal to use the safety device must be intentional and willful, implying obstinacy, stubbornness and design-a premeditated and intentional wrongdoing. Holcomb v. Fowler, 305 So.2d 616 (La.App. 2d Cir.1974), unit denied, 309 So.2d 679 (La.1975).

It is well settled in this state that mere disobedience of orders as to how work should be done will not affect the right of an injured workman to compensation. Allen, supra. Even if an act is done in disobedience of special rules and in spite of warnings, if it is done in an honest attempt to 14further that which he was employed to do, worker’s compensation is not barred, even if it is done in a more dangerous way. Allen, supra.

The word “deliberate,” as used in La. R.S. 23:1081(l)(c), implies something more than mere negligence, or a voluntary and intentional failure on the part of the workman to use the guard or protection. Moreno v. Simonton, 33,854 (La.App.2d Cir.12/20/00), 779 So.2d 887, writ denied, 01 0444 (La.4/20/01), 790 So.2d 634. In Moreno, Mr. Moreno was injured when he fell from a tree while he was working on a [425]*425project for a stump removal company. He failed to use an employer provided safety • rope that could have protected him from falling. This court held that Mr. Moreno’s actions may have been characterized as intentional, but they were not deliberate; and, in order to disqualify an employee from worker’s compensation benefits, the employer must prove that the failure to use a safety device must not only be intentional, but also deliberate. Moreover, we also found that Mr. Moreno’s failure to use a safety line was neither a premeditated act, nor was it done with malice.

In addition, this court has previously adopted the definition of the word “deliberate,” as found in La. R.S. 23:1081(l)(c), as: “Well advised; carefully considered; not sudden or rash; weighing facts and arguments with a view to a choice of decision; carefully considering the probable consequences of a step; circumspect; slow in determining; to weigh in the mind; to consider the reasons for and against; to consider maturely; to regard upon; to ponder.” McClendon v. Louisiana Central Lumber Co., 17 La.App. 246, 135 So. 754 (La.App. 2d Cir.1931). Clearly, Kimble’s Indecision not to wear his safety glasses was not deliberate under this definition of the term. Kimble’s decision not to wear the safety glasses was intentional, but it was not deliberate or willful within the meaning of La. R.S. 23:1081(l)(c) and it was certainly without premeditation or malice. As previously stated, Kimble was working outdoors on the morning of the accident, attempting to keep himself and his co-workers warm by breaking apart pieces of wood and then burning the wood in a barrel. Even though Kimble had his safety glasses on his person, he was not wearing them while he was breaking apart the wood. With no other thought than to help facilitate the work that he was employed to do, we conclude that Kimble did not deliberately or willfully fail to wear his safety glasses.

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Related

Attaway v. Farley's Glass Co., Inc.
430 So. 2d 705 (Louisiana Court of Appeal, 1983)
Holcomb v. Fowler
305 So. 2d 616 (Louisiana Court of Appeal, 1975)
Moreno v. Simonton
779 So. 2d 887 (Louisiana Court of Appeal, 2000)
Allen v. Louisiana Wood Moulding Corp.
706 So. 2d 636 (Louisiana Court of Appeal, 1998)
Carter v. Christ
148 So. 714 (Louisiana Court of Appeal, 1933)
Daigle v. Moody
144 So. 596 (Supreme Court of Louisiana, 1932)
McClendon v. Louisiana Central Lumber Co.
135 So. 754 (Louisiana Court of Appeal, 1931)

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Bluebook (online)
830 So. 2d 422, 2002 La. App. LEXIS 3198, 2002 WL 31375071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimble-v-fibrebond-corp-lactapp-2002.