STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-12
TIMOTHY CORMIER
VERSUS
MCNEESE STATE UNIVERSITY
**********
APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 10-11131 SAM L. LOWERY, WORKERS‟ COMPENSATION JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders, Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
Thibodeaux, Chief Judge, dissents and assigns written reasons. Saunders, Judge, dissents and assigns written reasons.
REVERSED.
Adam L. Ortego, Jr. Assistant Attorney General One Lakeshore Dr., Suite 1200 Lake Charles, LA 70629 (337) 491-2880 COUNSEL FOR DEFENDANT/APPELLANT: McNeese State University Gregory P. Marceaux Marceaux Law Firm, L.L.C. 2901 Hodges St. Lake Charles, LA 70601 (337) 310-2233 COUNSEL FOR PLAINTIFF/APPELLEE: Timothy Cormier GREMILLION, Judge.
The Board of Supervisors for the University of Louisiana System (the Board)
appeals the judgment of the Workers‟ Compensation Judge (WCJ) in favor of
Timothy Cormier (Cormier), awarding him Temporary Total Disability (TTD)
benefits, medical expenses, penalties, and attorney fees. For the reasons that
follow, we reverse.
FACTS AND PROCEDURAL HISTORY
On Sunday, September 16, 2010, Cormier was injured while cleaning the
tailgating area of McNeese State University‟s football stadium parking lot. It is
not disputed that Cormier was injured, nor is there dispute over the manner in
which he was injured. At the time, Cormier had volunteered to work in the parking
lot because he was incarcerated at the Calcasieu Parish Correctional Center and
participated in its trustee program. Cormier received no remuneration for the work
he performed as a trustee.
Following his release from the Calcasieu Parish Correctional Center in
November 2010, Cormier filed a Disputed Claim for Compensation with the
Department of Labor, Office of Workers‟ Compensation, in which he claimed that
he was employed by McNeese at the time of his injury and was entitled to medical
benefits, weekly indemnity, penalties, and attorney fees.
The Board filed an exception of no cause or right of action in which it
maintained that Cormier was not employed by it and, thus, that he was not entitled
to compensation. Supporting the Board‟s exception was an Agreement for
Utilizing Trustees between the university and the Calcasieu Parish Sheriff. This
agreement established that the university was responsible for transporting trustees
to and from the place of their assigned responsibilities, furnishing lunch for the trustees, and ensuring that the trustees remained on its premises and adhered to
strict prohibitions against the possession of contraband items and from contact with
visitors. It further provided that the trustees were not to be compensated.
The WCJ heard the Board‟s exception on February 21, 2011. On April 6,
2011, the WCJ rendered oral reasons for judgment denying the Board‟s exception.
The WCJ reasoned that La.R.S. 23:1044 establishes a rebuttable presumption that
“[a] person rendering service for another in any trades, businesses or occupations
covered by this Chapter is . . . an employee under this Chapter.” McNeese, the
WCJ reasoned, had the right to engage and dismiss the trustees at will, had total
custody of the trustees, and was responsible for all of the trustees‟ medical
expenses. “Viewing the situation in its entirety, in accordance with the guidance
provided by the higher Court [Harrington v. Hebert, 00-1548 (La.App. 3 Cir.
5/23/01), 789 So.2d 649], it‟s difficult to see how Mr. Cormier could properly be
considered anything but an employee for purposes of workers‟ compensation
matters.”
The Board sought writs from this court, which were denied. Cormier v.
McNeese State Univ., 11-75 (La.App. 3 Cir. 11/4/11) (unpublished). We found no
error of law. Id. The Louisiana Supreme Court also denied writs. Cormier v.
McNeese State Univ., 11-2649 (La. 2/10/12), 80 So.3d 481.
The Board then filed a rule to show cause why Cormier had not forfeited
benefits during his period of incarceration. The WCJ summarily denied that rule.
Again, the Board sought writs from this court, which were granted in part and
denied in part. We liberally construed the rule to show cause as a motion for
summary judgment. The board was entitled to partial summary judgment on the
issue of Cormier‟s entitlement to benefits while incarcerated, but its application
2 was otherwise denied as to his entitlement to benefits after his release. Cormier v.
McNeese State Univ., 11-757 (La.App. 3 Cir. 11/4/11) (unpublished).
Cormier‟s claim for compensation proceeded to trial. Following the
presentation of evidence, the trial court found that our previous denial of writs
constituted law of the case, precluding the relitigation of the issue of whether
Cormier was an employee. It ruled in favor of Cormier, awarding him TTD
benefits of $154.00 per week from November 1, 2010; $8,000.00 in penalties for
failing to authorize physical therapy, a referral to a specialist, prescription benefits,
and failing to pay weekly indemnity benefits; and $17,190.00 in attorney fees. The
Board then perfected this appeal.
ASSIGNMENTS OF ERROR
The Board assigns the following as error below:
1. The Trial Court erred in finding that a parish prisoner, who volunteered and was selected to be a [trustee] by a sheriff and assigned to provide free labor to a public entity, is an employee of that public entity.
2. The Trial Court erred in designating a [trustee] assigned by a sheriff to perform free labor for a public entity as an employee of that public entity rather than ruling according to the express provisions of the contract between that public entity and the sheriff.
3. The Trial Court erred in awarding indemnity, medical benefits, penalties and attorney‟s fees to a parish prisoner selected as a [trustee] by a sheriff and assigned to perform free labor for a public entity, where the [trustee] was injured while providing such free labor at the public entity, when it was not unreasonable to conclude that the prisoner was not an employee of that public entity.
Fundamentally, the Board‟s arguments can be condensed to whether the WCJ
manifestly erred in finding that Cormier was its employee.
3 ANALYSIS
Application of law of the case
Cormier relies on our ruling in Waller v. State of Louisiana, Department of
Health and Hospitals, 11-643 (La.App. 3 Cir. 11/9/11), 79 So.3d 1085, writ
denied, 11-2692 (La. 2/10/12), 80 So.3d 488, for the proposition that our previous
denials of writs constitute law of the case and preclude redetermination at trial or
in this tribunal of the issue of his employment status. Cormier conveniently
ignores the fact that in Waller, we recognized that the law of the case doctrine
admits of exceptions. Two of those exceptions are found when the previous panel
committed palpable error and when denying writs would result in manifest
injustice. Law of the case is, after all, a doctrine intended to promote judicial
efficiency. State v. Magee, 93-643 (La.App. 3 Cir. 10/5/94), 643 So.2d 497.
Magee recognized a third exception: when additional evidence is received on the
subject matter at issue.
The doctrine of law of the case is a discretionary doctrine. Clement v.
Reeves, 07-1154, 07-1155 (La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ denied,
08-0482 (La. 4/18/08), 978 So.2d 355. In Clement, 975 So.2d at 174, we quoted
our colleagues on the second circuit:
Typically, following the “law of the case” doctrine, reargument of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur.
Rogers v. Horseshoe Entm’t, 32,800, pp. 5-6 (La. App. 2 Cir. 8/1/00), 766 So.2d
595, 600, writ denied, 00-2894 (La. 12/8/00), 776 So.2d 463, and writ denied, 00-
2905 (La. 12/8/00), 776 So.2d 464. There is, however, no palpable error arising
4 from our previous rulings. The context in which that ruling was made, however,
impacts the applicability of the doctrine.
The Board raised the issue of Cormier‟s employment status as an exception
of no cause of action. “The function of an exception of no cause of action is to test
the legal sufficiency of the petition by determining whether the law affords a
remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v.
Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). When the WCJ denied the
Board‟s exception, finding that the Board failed to overcome the presumption that
a worker is an employee, further inquiry into this issue was not foreclosed. The
denial of an exception of no cause of action is an interlocutory judgment. Fontenot
v. Miss Cathie’s Plantation, Inc., 93-926, 93-927 (La.App. 3 Cir. 3/2/94), 634
So.2d 1380. No relief was granted to either party; Cormier‟s claim was simply
allowed to proceed. Therefore, with regard to our denial of writs, finding no error
of law in the WCJ‟s ruling, we found just that—the denial of the Board‟s exception
was proper on the pleadings—and nothing more.
Similarly, the exception of no cause of action that was construed as a motion
for summary judgment was interlocutory to the extent that we denied writs. The
denial of writs did not determine the merits of the case; only the partial grant of
writs represented any determination of Cormier‟s rights, or lack thereof. The WCJ
did not grant a motion for summary judgment in Cormier‟s favor, as no such
motion was filed. No court ever determined that Cormier was entitled to post-
incarceration workers‟ compensation benefits until the judgment that is now being
appealed. The fact that during the hearing on the first exception the WCJ stated
that he had difficulty seeing Cormier as anything other than an employee did not
constitute a ruling that Cormier was an employee. Likewise, we simply ruled that
5 Cormier was not entitled to benefits while he was incarcerated, and that there was a
genuine issue of material fact regarding his entitlement to post-incarceration
benefits. There is, therefore, no law of the case to apply.
Even were the doctrine in play, it should not be applied here, as there is good
reason to rely on the exception to the rule; specifically, the WCJ took additional
evidence on the issue of Cormier‟s employment status. Six witnesses were called,
and all testified about the circumstances of Cormier‟s trusteeship. Those witnesses
seriously undermined Cormier‟s argument that he was employed by the university.
Thus, the doctrine of law of the case does not apply.
Determination of employment status
A determination by the WCJ regarding employment status is reviewed under
the manifest error/clearly wrong standard. See Dominio v. Folger Coffee Co., 09-
1278 (La.App. 4 Cir. 2/10/10), 32 So.3d 955, writ denied, 10-570 (La. 5/21/10), 36
So.3d 232. Only when an appellate court finds that a reversible error of law or
manifest error of material fact was made by the trial court may the appellate court
conduct a de novo review of the facts; indeed, when such an error is found, the
appellate court “is required, whenever the state of the record on appeal so allows,
to redetermine the facts de novo from the entire record and render a judgment on
the merits.” Wooley v. Lucksinger, 09-571, p. 51 (La. 4/1/11), 61 So.3d 507, 555.
We are admonished that the determination of whether manifest error has occurred
is not whether the trier of fact was right or wrong, but whether the factfinder‟s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder‟s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989);
6 Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness‟s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness‟s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that „if the trial court or jury‟s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.‟ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882-83
(La.1993). Here, the WCJ did not employ the analytical steps necessary to arrive
at a conclusion that Cormier was employed by McNeese, which we shall discuss
further. The language the WCJ used when the Board‟s exception of no cause of
action was denied, which we quoted above, was purely advisory and had no impact
on the matter before the court, i.e., whether Cormier had stated a cause of action.
When determining whether the relationship between a principal and an
individual represents that of employer/employee, a long line of cases holds that
courts must find that the former possesses the right to control the latter. See, e.g.,
Brown v. Zurich Am. Ins. Co., 07-353 (La.App. 3 Cir. 10/3/07), 966 So.2d 1160,
writ denied, 07-2139 (La. 1/7/08), 973 So.2d 728. In Brown, this court employed,
not for the first time, the four-part test first recognized by our colleagues on the
first circuit in Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487
(La.App. 1 Cir. 1950): in determining the right to control, the four primary
relevant factors are:
1) selection and engagement
2) payment of wages;
7 3) power of dismissal;
and, 4) power of control.
No single factor is conclusive; “[r]ather, the totality of the circumstances must be
considered.” Harrington, 789 So.2d at 653.
The WCJ heard from three witnesses on the issue of Cormier‟s alleged
employment status. Cormier testified that when he was jailed, a deputy asked him
if he wanted a job. Cormier leapt at the opportunity because working outside the
confines of the main jail was preferable to staring at cell walls. Also, trustees were
housed in a dormitory at a sheriff‟s department substation rather than individual
cells at the main jail. On “regular detail,” Cormier and his fellow trustees working
at McNeese were picked up at the substation by a university-owned vehicle that
transported them to the school. The university also returned them after work hours.
Cormier did not submit an application for employment to McNeese. In addition to
work at McNeese, Cormier also worked at times as a trustee at the main jail.
Mr. Vincent Cormier is a grounds department employee at McNeese. He
was responsible for overseeing the work of the trustees. His testimony essentially
corroborated the appellee‟s. However, he also elaborated on the arrangements that
were in force on the day appellee was injured. This was a so-called “special
detail” on a Sunday afternoon. Trustees on “special detail” were transported to the
university by the sheriff‟s department. A sheriff‟s deputy would stay with the
“special detail” workers to prevent elopement.
Lastly, the WCJ heard from Assistant Warden Charles Lavergne of the
Calcasieu Parish Sheriff‟s Office. Lavergne oversees the trustee and other work-
release programs. The sheriff‟s department supplies labor to businesses and non-
profit entities through three programs. The Department of Public Safety and
8 Corrections (DPSC) has a work-release program that draws labor from the sheriff‟s
inmate population. Inmates working through the DPSC program are compensated
for their labors. The sheriff has his own work-release program, and workers
employed through that arrangement are also compensated. The trustee program is
the lowest tier of labor outside of the jail because the trustees are not compensated.
Lavergne also testified that the sheriff determines which trustee works for a
given agency. The agency bears responsibility for overseeing the activities of the
trustees in its custody, but if the agency is not satisfied with a trustee, only the
sheriff may remove the trustee. The sheriff also determines the hours a trustee will
work for an agency.
Right of selection and engagement
The uncontradicted testimony of Lavergne established that McNeese did not
have the right to select or engage Cormier. He was vetted by an application
process within the Calcasieu Parish Sheriff‟s Office. He was assigned to the group
of trustees that worked at McNeese by the sheriff‟s personnel. Nothing in the
record suggests that McNeese could request certain trustees or that it did in
Cormier‟s case. The element of selection and engagement does not present itself,
which mitigates against Cormier being an employee of the university.
Payment of wages
It is undisputed that Cormier was not paid by McNeese. Indeed, the
controversy arose in the case solely because McNeese paid no wages to Cormier.
The second factor is also absent.
Power of dismissal
Lavergne testified how an agency that receives trustee labor can have a
trustee removed. Were the university dissatisfied with a trustee‟s work, it would
9 notify the sheriff‟s office, which would remove the trustee from that job. The WCJ
found that the university had an “absolute right to engage and discharge” the
trustees. We find no reasonable support in the record for the proposition that
McNeese had the right to discharge trustees, and certainly no support whatsoever
for the proposition that it could engage them. And the right to engage and
discharge is only one factor that must be considered.
Power of control
Vincent Cormier was the McNeese employee who oversaw the work of the
trustees. With the exception of using riding lawnmowers, every activity of the
trustees matched those of the compensated employees of the university alongside
whom the trustees worked. Vincent Cormier told the trustees which tasks they
were to perform. It is abundantly clear from the record that from the moment the
trustees were picked up until they were returned to the sheriff‟s substation, they
were in the custody and control of the school. The fourth factor clearly presents
itself.
The presumption of employment status created by La.R.S. 23:1044 is
rebuttable. Smith v. Prime, Inc., 09-269 (La.App. 3 Cir. 10/7/09), 20 So.3d 1184.
“This presumption may be rebutted upon proof that there was no contract of
employment, either expressed or implied, between the alleged employee and the
alleged employer.” Gotto v. ARA Living Ctr., 570 So.2d 1172, 1174 (La.App. 5
Cir.), writ denied, 571 So.2d 634 (La.1990)(citations omitted). The presumption is
not only available to an alleged employee seeking workers‟ compensation benefits,
but also to principals seeking to avoid tort liability by virtue of the exclusivity of
the remedies afforded by the Louisiana Workers‟ Compensation Act. Brown, 966
10 So.2d 1160. See also La.R.S. 23:1032. Accordingly, those cases provide guidance
in determining employment status.
In Nguyen v. Underwriters at Lloyd’s, 05-1407 (La.App. 3 Cir. 5/3/06), 929
So.2d 821, writ denied, 06-1332 (La. 9/22/06), 937 So.2d 387, the plaintiff‟s
services had been retained on a “try out” basis at the defendant‟s seafood
processing facility and ice plant. He received no compensation during his
probationary period. During his probationary period, plaintiff fell through a grate
above an ice auger that amputated his right leg just below the knee. He sued the
defendant and its insurer for damages. The insurer answered and argued that its
policy excluded claims covered by workers‟ compensation laws.
The trial court relied almost exclusively on the fact that the plaintiff was
paid no wages when it granted summary judgment to plaintiff. We affirmed the
judgment “absent evidence of an actual agreement of employment and/or
compensation[.]” Id. at 824.
In Dustin v. DHCI Home Health Services, Inc., 95-1989 (La.App. 1 Cir.
5/10/96), 673 So.2d 356, plaintiff was enrolled in a medical support education
program operated by DHCI. Part of plaintiff‟s training involved actual work in the
emergency room at Earl K. Long Medical Center in Baton Rouge. He assisted in
restraining a violent HIV-positive patient. Plaintiff received direct contact with the
patient‟s blood and was positively tested for HIV. He sued DHCI and the hospital.
The hospital responded with an exception of lack of subject matter jurisdiction in
which it argued that plaintiff was an employee and could only receive workers‟
compensation. The district court rendered judgment in favor of the hospital.
The court of appeal noted, “[A]s a general rule, for such a relationship to
exist, there must be a contract of employment, either express or implied, whereby
11 services are furnished in anticipation of compensation.” Id. at 359. The workers‟
compensation laws are rooted in a wage loss theory. Id. When a worker receives
no wages, there is no basis for calculating workers‟ compensation benefits. Id.
Because the hospital did not select or engage the students and had no power to
expel students from the program, the hospital was not the employer of the students.
Id.
The totality of the evidence in the present matter demonstrates that there was
no service furnished by Cormier in anticipation of compensation. He volunteered
to furnish his labor in order to be allowed a few hours a day outside his jail cell.
McNeese did not select Cormier. McNeese did not fix Cormier‟s hours of work. In
short, there was no selection and engagement, no payment of wages, and no power
of dismissal. McNeese only had the right to tell Cormier what to do when he was
on the school‟s premises. Under these circumstances, the WCJ manifestly erred in
finding that Cormier was employed by the university. The judgment of the
Workers‟ Compensation Judge in favor of Timothy Cormier is reversed. All costs
of this appeal are taxed to plaintiff/appellee, Timothy Cormier.
12 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, dissenting.
While the proper resolution of this case should focus on procedure as
articulated in the following paragraphs, I agree with the substantive comments of
Judge Saunders.
The majority correctly recites the procedural history of this litigation,
particularly as it relates to the substance and posture of the pleading filed as an
exception of no cause or right of action which this court treated as a motion for
summary judgment.
We considered the document filed by McNeese as a motion for
summary judgment, not an exception of no cause of action, because evidence was
adduced. We specifically concluded:
We hereby liberally construe the rule to show cause filed by . . . McNeese State University, as a Motion for Summary Judgment. Thus, upon considering the admission by Claimant, Timothy Cormier, that he is not entitled to workers’ compensation benefits during any period of his incarceration, we find that the Relator [McNeese] is entitled to a grant of partial summary judgment as to the forfeiture of any workers’ compensation benefits to which the Claimant might otherwise been entitled during any period of the Claimant’s incarceration. La.R.S. 23:1201.4. However, we find no error in the workers’ compensation judge’s denial of Relator’s [McNeese’s] Rule as to any benefits to which the Claimant may be entitled following Claimant’s release from incarceration. We remand this matter to the workers’ compensation court for further proceeding in light of this ruling. Cormier v. McNeese St. Univ., CW11-757 (La.App. 3 Cir. 11/4/11) (Unpublished).
We remanded this case after ruling on the writ for the purpose
of determining causation and extent of disability. The Office of Workers’
Compensation observed that the third circuit “pointedly and explicitly
rejected the main, indeed the only substantive, argument of the evidence that
no employee/employer relationship existed.” The OWC concluded that
McNeese’s conduct in continuing to pursue this rejected defense was not
only arbitrary and capricious, but also “contrary and hardheaded.”
The majority, nonetheless, erroneously proposes to reverse and hold
that no employer/employee relationship existed. The plaintiff, it says,
“conveniently” ignored certain exceptions regarding the “law of the case” doctrine.
Those exceptions are: (1) palpable error; (2) denial would result in manifest
injustice; and (3) when additional evidence is received on the subject matter at
issue. It concludes there is no palpable error. If so, why are we even reconsidering
employer/employee status?
The majority opines that no relief was granted to either party in our
writ ruling and that we found a denial of the Board’s exception was proper on the
pleadings—and no more. That is incorrect. The exception of no cause of action
should not be discussed because our court specifically recognized this pleading as
a motion for summary judgment.
The majority concludes that the context in which the previous third
circuit ruling was made on the writ application impacts the
applicability of the “law of the case” doctrine. The position that additional
evidence was received during the trial of this matter is incorrect. The evidence at
the trial, according to the workers’ compensation judge, “was in most respects
identical to the evidence previously presented to this court, as well as the third
2 circuit and the Louisiana Supreme Court.” The workers’ compensation judge was
not manifestly wrong in this regard. Indeed, the substance of the evidence never
changed. McNeese submitted additional testimony in the form of more witnesses.
These witnesses, however, did not add anything other than that which was already
considered. It was basically cumulative.
For all of the reasons cited above, I dissent and would affirm the
judgment of the Office of Workers’ Compensation.
3 STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
Saunders, J., dissents and assigns written reasons
To me, the analysis of the issue in this case focuses too much on the law of the
case and not enough on the law of the state. In my view, the issues of who is the
employer of an inmate on work release and whether that injured work release inmate is
entitled to workers’ compensation benefits have long been settled. See Reynolds v.
Louisiana Plastic, 44,803 (La.App. 2 Cir. 11/28/09), 26 So.3d 149, writ denied, 09-2805
(La. 3/5/10), 28 So.3d 1013; Rogers v. Louisiana Dep’t. of Corrections, 43,000 (La.App.
2 Cir. 4/30/08), 982 So.2d 252, writ denied, 08-1178 (La. 9/19/08), 992 So.2d 931;
Clinton v. Reigel By-Products, Inc., 42,497 (La.App.2d Cir.9/19/07), 965 So.2d 1006;
Becnel v. Charlet, 446 So.2d 466 (La.App. 4th Cir.1984); Parker v. State, 353 So.2d 333
(La.App. 1st Cir.1977), writ denied, 354 So.2d 1375 (La.1978); La. Atty. Gen. Op. Nos.
00-501, 94-456, 79-1502.
I am cognizant that the citations above contain no cases from this Court. However,
the Rogers case was discussed by this court in Lee v. State, ex. rel. Department of Public
Safety and Corrections, 10-1013 (La.App. 3 Cir. 3/30/11), 60 So.3d 106. In Lee, this
court stated that it was, “convinced that the principles enunciated in Rogers with regard
to work release inmates not being employees of the State are applicable to the matter
before” them. Rogers appears to be in accord with the voluminous jurisprudence
available on this issue. I am mindful of La.Civ.Code art. 13 and its principle that when interpreting
conflicting statutes, “the statute specifically directed to the matter at issue must prevail as
an exception to the statute more general in character.” Here, while admittedly not a
statute, we have case law from three of our four sister courts directly on point. Rather
than finding that case law persuasive, the majority opinion does not address these cases
and finds that Cormier is not an employee of McNeese based on analysis generally used
to adjudicate whether one is an employee of another.
Given the above, I would find that Cormier was the employee of McNeese.
Accordingly, I respectfully dissent.