Employee Recovers for Idiopathic Fall Under Louisiana’s Positional Risk Doctrine

A Louisiana appellate court recently affirmed a determination by a WCJ that a pharmacy technician’s injuries resulting from a fall at her computer station after she had suffered a one-time seizure were compensable [Woodard v. Brookshire Grocery Co., 54,574 (La.App.2 Cir. 08/10/22), 2022 La. App. LEXIS 1264]. Utilizing what amounts to a positional risk rule, the appellate court applied Louisiana’s “sliding scale” analysis in examining the “course of employment” and “arising out of the employment” requirements. In Louisiana, strong “course of employment” factors can make up for weak “arising out of the employment” factors (and vice-versa). That the technician’s risk of seizure had nothing to do with her employment was no bar to her claim.

Background

The employee worked as a a pharmacy technician, assisting the pharmacist and providing customer service in a Shreveport grocery store. On the date of her accident, the employee was standing at her computer station at the pharmacy counter when she fell after suffering a seizure. As a result of her fall, the employee sustained injuries to her right shoulder. Surveillance cameras in the store recorded the entire incident.

A subsequent MRI of her right shoulder revealed an interior dislocation-relocation injury, a Bankart fracture, and a tendon tear. Following her employer’s denial of the employee’s request for benefits, she filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”). Following a trial, the WCJ found that the employee had been injured in the course of her employment, that her fall arose out of her employment, and that her shoulder injury was, therefore, compensable. The employer appealed.

“Arising Out of Employment” and “Course of Employment”

The appellate court noted that the two requirements of “arising out of employment” and “course of employment” are separate but mutually interdependent concepts used to determine whether the injury is sufficiently related to the employment to warrant coverage under the system of workers’ compensation. The court stressed that the two requirements should not be considered in isolation; a strong showing of one can overcome or strengthen a weaker showing of the other [Author’s note: the Louisiana rule is contra to that of the vast majority of jurisdictions, i.e., Louisiana is virtually alone in evoking this sort of “sliding scale”].

The court further noted that an accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during working hours, either on the employer’s premises, or at other places where employment activities take the employee. The principal criteria for determining course of employment are time, place, and activity.

According to the court, an accident arises out of employment if the conditions or obligations of the employment caused the employee in the course of her employment to be at the place of the accident at the time the accident occurred. Citing a line of Louisiana cases, the court added that when an employee is squarely within the course of her employment, virtually any risk has been considered arising out of employment.

The appellate court quoted Guidry v. Serigny, 378 So. 2d 938 (La. 1979), in which the Supreme Court of Louisiana held that a cook who fell while working from the storage area of the restaurant to the kitchen—she either fainted, had a heart attack, or slipped on a recently waxed floor—sustained compensable injuries because it was “not the fainting spell, heart attack or slip which may have caused her to fall, but was the fall itself, and that this was so regardless of the precipitating reason therefor” [378 So. 2d at 939-40].

The court then concluded:

At the time of her accident, [the employee] was employed by Brookshire, on her employer’s premises, on the time clock, and standing at an assigned work location, having just finished assisting in administering flu vaccines. The fact that her fall was not directly caused by a work-related activity, but instead by a seizure does not negate the fact that [the employee’s] accident occurred in the course of and arising out of her employment with Brookshire [Opinion, p.. 16].

Accordingly, the appellate court found no error in the WCJ’s determination that the employee’s fall was a compensable accident under the Louisiana Workers’ Compensation Act.

Commentary

This decision leaves no doubt; Louisiana utilizes the positional risk test to determine compensability—at least when it comes to falls [see Larson’s Workers’ Compensation Law, §§ 3.05, 7.04, 9.01]. As I intimate above, the general rule is that when an employee, solely because of a nonoccupational heart attack, epileptic seizure, or fainting spell, falls and sustains injury, the effects of such a fall are compensable only if the employment places the employee in a position increasing the dangerous effects of the fall [see Larson, § 9.01[1]]. Using Louisiana’s “sliding scale,” when an employee is squarely within the course of her employment, virtually any risk has been considered arising out of employment.