Proactive Therapy v. Yellow Book, USA

880 So. 2d 119, 2004 WL 1737003
CourtLouisiana Court of Appeal
DecidedAugust 4, 2004
DocketNo. 2003-1705
StatusPublished
Cited by1 cases

This text of 880 So. 2d 119 (Proactive Therapy v. Yellow Book, USA) 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
Proactive Therapy v. Yellow Book, USA, 880 So. 2d 119, 2004 WL 1737003 (La. Ct. App. 2004).

Opinion

JjSCOFIELD, Judge1

Defendants, Yellow Book, USA and Chubb Group of Insurance Companies (collectively referred to a Yellow Book), appeal a judgment of an Office of Workers’ Compensation Judge (OWCJ) in favor of Claimant, Jo Lynne Duran, finding she suffered a compensable accident for which benefits are due, and in favor of Plaintiff, Proactive Physical Therapy (Proactive), finding Proactive is entitled to payment for treatment it rendered Ms. Duran following her accident. The OWCJ also awarded Ms. Duran penalties and both Claimant and Plaintiff, attorneys’ fees. Defendants were cast with interest and costs. Defendants appeal. Ms. Duran answered the appeal seeking additional attorney’s fees for work necessitated by this appeal. Although Proactive prays for additional attorney’s fees in brief, it neither appealed nor answered Defendants’ appeal; thus its request is not properly before the court. We amend the judgment of the OWCJ to [121]*121award Ms. Duran $2,500.00 in additional attorney’s fees and affirm the judgment as amended.

FACTS

Claimant, Jo Lynne Duran, was employed by Yellow Book as an account executive whose responsibility was to sell advertisement to local businesses in the Lake Charles area. On April 17, 2002, she went to work at about 8:30 a.m. Sometime after 10:00 a.m. she departed to keep an appointment with her primary care physician, Dr. Craig Broussard, and to call upon a client whose Yellow Book ad needed clarification. While waiting at the doctors’ office Claimant continued to receive business phone calls on her cellular phone. Upon checking out at the doctors’ office she inquired of Dr. Broussard and another doctor in the office, Dr. Ron Lewis, whether they had ads in the Yellow Book. Claimant then left the doctors’ office, | ¡¡planning to meet a co-worker, Pam Tadlock, at the Yellow Book office. Claimant and Ms. Tadlock had planned to go pick up lunch and bring it back to the Yellow Book office for a working lunch. On the way back to the office, Claimant placed and received additional business calls on her cellular telephone. As she attempted to turn into the Yellow Book parking lot she was “broad-sided” by another motorist and sustained serious injuries.

The OWCJ found that although Claimant had deviated from her employer’s business when she stopped to see her personal physician, she had re-entered the course and scope of her employment, if not when she asked the two doctors about Yellow Book ads, certainly when she stared back toward the office, conducting telephone business en route. Defendants appeal that determination and the award of penalties and attorneys’ fees.

LAW AND DISCUSSION

On appeal, Defendants list five assignments of alleged error; however, those assignments raise but two issues: 1) Was Claimant in the course and scope of her employment at the time of the accident? and 2) Did the OWCJ err in awarding penalties and/or attorneys’ fees?

Defendants argue that Claimant had deviated from the course and scope of her employment to see her private physician and, at the time of the accident, she had not yet returned to her employment as she was on her way to the office for lunch. The OWCJ found that Claimant had returned to her employer’s business at the time of the accident.

Here, the nature of Claimant’s work is a key element in analyzing whether the accident in which she was involved occurred during the course and scope of her employment. Claimant was a salesperson. She sold advertising space in the Yellow Book. The evidence is undisputed that to perform her work, she regularly used her 13automobile and her cell phone. Her job was to communicate with people, meet with them, and sell them advertising space. She used the telephone to make sales pitches, to set up appointments with customers, to follow up on appointments, to receive inquiries from customers and potential customers, and to trouble shoot customers’ problems. For the most part, the personal appointments with customers required her to travel by automobile to the customer’s place of business or home. Claimant’s work place, therefore, was by no means confined to the premises of her employer. The spatial boundaries of her work were limited only by the range of her automobile or her cell phone. It is fair to say that her work place easily encompassed the entire City of Lake Charles.

The temporal aspects of her work are also significant to our analysis. While [122]*122Claimant’s stated work hours were from 8:30 a.m. to 4:30 p.m., she testified that she definitely was required at times to contact customers before normal work hours, after work hours and during the noon hour. During her testimony she stated:

Well, like I said, it wouldn’t matter where we would be or if we were at per se lunch. Sometimes we didn’t get a lunch. If we got a phone call and a customer could see us, we — didn’t matter to us what time it was or where we were. We went.

The broad temporal and spatial expanses of Claimant’s work place were something required of her by her employers.

On the day of her accident, Claimant did go to her doctor’s office which, in and of itself, was a personal mission, a deviation from her employment. However, on the way to the doctor’s appointment she went to a customer’s place of business to address a mistake that had been made in preparing a proof of a proposed advertisement. After her session with her doctor was completed, she made a sales pitch to her doctor and another doctor in that office. On her way back to the Yellow Book offices, shortly before the accident, Claimant was making sales related calls on her cell phone. The Laccident occurred while she was turning into her employer’s office to pick up a co-worker and together they were going to buy some sandwiches and return to the office for a working lunch, i.e., while eating they were going to be making sales calls on their cell phones.

Some cases in our jurisprudence use the phrases “deviation from the work place” and “re-entry into the work place” in determining if a workers’ compensation claimant is in the course and scope of employment when injured.

Deviation occurs when an employee, after having entered the work place, leaves or turns aside to do something personal or not work related. An injury occurring during the time of this deviation is generally not considered work related and, therefore, is not compensable under the workers’ compensation laws. In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers’ business to cash her Christmas bonus check. See also Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.

Our courts also recognize that once one has deviated from his or her employment, it is possible to re-enter the work place. If an employee is injured after returning to the work place or re-entering the work place, our courts will generally consider the injury to be work related and the employee is entitled to the benefits of the workers’ compensation laws. For instance, in Belt v. State Through Louisiana Board of Cosmetology, 493 So.2d 278, 285 (La.App. 3rd Cir.), writ denied, 496 So.2d 1044 (La.1986) this court stated:

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Cite This Page — Counsel Stack

Bluebook (online)
880 So. 2d 119, 2004 WL 1737003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proactive-therapy-v-yellow-book-usa-lactapp-2004.