Sallean v. Jefferson Parish Medical Society

788 So. 2d 1205, 1 La.App. 5 Cir. 128, 2001 La. App. LEXIS 1414, 2001 WL 579906
CourtLouisiana Court of Appeal
DecidedMay 30, 2001
DocketNo. 01-CA-128
StatusPublished
Cited by3 cases

This text of 788 So. 2d 1205 (Sallean v. Jefferson Parish Medical Society) 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
Sallean v. Jefferson Parish Medical Society, 788 So. 2d 1205, 1 La.App. 5 Cir. 128, 2001 La. App. LEXIS 1414, 2001 WL 579906 (La. Ct. App. 2001).

Opinion

I JAMES L. CANNELLA, Judge.

Defendant, Jefferson Parish Medical Society (JPMS), appeals from a workers’ compensation judgment in favor of Plaintiff, Jerelyn Sallean. We reverse.

For approximately 14 years, Plaintiff was employed by Defendant as a part-time office assistant and worked in a two-person office with her supervisor, Charlene Baudier (Baudier). The office is located in Metairie on Hearst Street, just off Transcontinental Drive. Plaintiffs hours of employment were from 9:00 a.m. to 5:00 p.m. on Monday and Tuesday and from 9:00 a.m. to 1:00 p.m. on Wednesday, Thursday, and Friday.

One of Plaintiffs jobs was to prepare board member’s checks for the signature of the Treasurer. On February 10, 1999, Plaintiff was attempting to print the checks so that they would be ready for 3:00 p.m. when the Treasurer was expected to arrive at the office. However, at approximately 11:15 a.m., the Imprinter jammed and neither she nor Baudier could fix it. Baudier instructed Plaintiff to try to find a repair shop. On the third telephone call, Plaintiff found a shop that would try to fix it immediately. The shop was located in New Orleans on Spanish Fort Boulevard. Baudier approved taking the printer to this location because she lived nearby and could pick it up the next day, if it could not be repaired that day.

Plaintiff left the office with the printer, using her own car. She drove down Hearst Street to Transcontinental Drive, where she turned right and continued traveling north to West Esplanade Avenue. She turned right on West Esplanade Avenue, to Old Hammond Highway at the Orleans Jefferson parish line. From there she continued East to Robert E. Lee Boulevard then to Old Spanish Fort Boulevard and the shop.

Plaintiff was in the printer’s shop for approximately 10 minutes. The machine only needed a new cartridge, which the printer’s shop had. Plaintiff then left and drove back toward her office using the same route in reverse. However, when [1207]*1207she arrived at the intersection of West Esplanade Avenue and Transcontinental Drive, she was stopped by a red traffic light. While waiting for it to change, she decided to go to a Whitney Bank, located across the intersection on the corner, to close out a personal account. When the light permitted, Plaintiff crossed the intersection, drove a block where she turned right on Chastant Street, which provided the access to the bank parking lot. Plaintiff parked her car and entered the bank. After she completed her personal business, she walked out of the bank. As Plaintiff neared her car, she tripped on a broken piece of concrete which caused her to fall to the ground.

14Following the fall, Plaintiff contacted Baudier to inform her that she was being taken to a local emergency room by one of the bank’s employees. Another bank employee took the printer into the bank where Baudier was able to pick it up later.

Plaintiff suffered abrasions to her face and both knees, a micro fracture to one knee, a severe ulnar nerve injury, and a torn rotator cuff in her shoulder. She needs surgery on her ulnar nerve, her knee and shoulder. Some of Plaintiffs medical expenses, but not all, were paid by the bank. Defendant paid Plaintiffs salary as sick leave during the times when she was unable to work.

On February 9, 2000, Plaintiff filed a Disputed Claim for Compensation requesting workers’ compensation benefits. A trial was held on September 7, 2000. On October 16, 2000, the trial judge rendered judgment in favor of Plaintiff, finding that 1) she was injured in the course and scope of her employment, 2) she is entitled to medical and transportation expenses and, 3) in the absence of her salary being paid, she is entitled to temporary total disability benefits. The trial judge further found that Defendant was not arbitrary and capricious in denying the claim.

On appeal, the Defendant argues that Plaintiff was not in the course and scope of her employment when she was injured, nor did the injury arise out of her employment. The Defendant also contends that the doctrines of minor deviation and re-entry are inconsistent with Mundy v. Dep’t of Health and Human Resources, 593 So.2d 346, 349 (La.1992) and Brown v. Ackel, 00-287 (La.App. 5th Cir.7/25/00), 767 So.2d 827, or, if not, that those doctrines should either be rejected by this Court, or found to be inapplicable under the facts. | .-Plaintiff disagrees, citing Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507.

The Louisiana Workers’ Compensation Act provides that an employer is responsible for compensation benefits to an employee who is injured in an accident that occurs in the course and scope of the employment and that arises out of the employment. Compensation benefits are the employee’s exclusive remedy against the employer for such an injury. La. R.S. 23:1031-32. The employer has the burden of proving entitlement to immunity when it seeks to avail itself of tort immunity under La. R.S. 23:1032. Mundy 593 So.2d at 349.

The “arising out of’ determination focuses on the character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment. Mundy, 593 So.2d at 349. “Course of employment” is determined by “time, place, and employment activity.” Id. Generally, the accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. Id. However, an accident has also been held to arise out of employment if the conditions or obligations of the employment caused the employee, in the course of employment, to be [1208]*1208at the place of the accident at the time the accident occurred. Id. Thus, “when the employee is squarely within the course of his employment, virtually any risk (whether an increased risk or not) has been considered as arising out of employment.” Mundy, 593 So.2d at 349.

In Mundy, the Court stated:

The principal objective of the “arising out of employment” requirement is to separate accidents attributable to employment risks, which form the basis of the employer’s obligation under the compensation system, from accidents attributable to personal risks, for which the employer should normally not be responsible. 1 A. Larson, Workmen’s Compensation § 7.00 (1990). The risks which have caused the greatest difficulty are those that have neither a | ^particular employment character nor a particular personal character. Id.
This court has declined to view the “course of employment” and “arising out of employment” requirements as separate and unrelated concepts. Rather, this court has recognized the mutual interdependence of the two concepts in determining the relationship of the injury to the employment. See W. Malone & H. Johnson, supra at § 144; — 1 A. Larson, supra at § 29.00, 29.10. In a close case a strong showing of “course of employment" has been held to counterbalance a relatively weak showing of “arising out of employment. ” See Ray-bol v. Louisiana State University,

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788 So. 2d 1205, 1 La.App. 5 Cir. 128, 2001 La. App. LEXIS 1414, 2001 WL 579906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sallean-v-jefferson-parish-medical-society-lactapp-2001.