Phipps v. Bruno Construction11/2/2000
AFFIRMED.
DOUCET, Chief Judge.
Claimant, Nick Phillips, appeals a judgment of a workers' compensation judge denying his request for workers' compensation benefits. We affirm.
FACTS
It is undisputed that on Saturday, September 12, 1998, Claimant's employer, Lafair Hebert, bought beer for his employees while they were renovating a school and gymnasium in Broussard, Louisiana. Mr. Phipps became intoxicated, and as he rode his bicycle home, Claimant was struck by a hit-and-run driver and seriously injured. The issue before the workers' compensation judge was the following: "Was Claimant in the course and scope of his employment when he was struck and injured by the hit-and-run driver?" The workers' compensation judge found Claimant was not in the course and scope of his employment and denied benefits. Claimant appeals.
LAW AND DISCUSSION
In Johnson v. Transamerican Waste Co., 99-190, p. 4 (La.App. 3 Cir. 6/2/99); 741 So.2d 764, 767, we stated:
An appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless it is clearly wrong. Wackenhut Corrections Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661.... Deference is due to the factfinder's determinations regarding the credibility of witnesses "for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Wackenhut Corrections Corp., 685 So.2d at 663 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).
The Louisiana Supreme Court, in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556, reminded reviewing courts of the principles governing a manifest error review:
In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Freeman [v. Poulan/Weed Eater ], 93-1530 at p. 5 [(La.1/14/94)], 630 So.2d at 737-738; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, "if the [factfinder'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." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
With those principles in mind, we proceed with the review of the case on appeal.
In analyzing the question before this court we have used a two step analysis. First, we addressed the question "Would Claimant have been in the course of his employment if he had been injured on the way home and had been sober?" The answer to this question is a resounding "No." In Kennedy v. Martin Gas Trans. Co., Inc., 96-100, p. 4 (La.App. 3 Cir. 8/21/96); 680 So.2d 1195, 1197, writ denied, 96-2838 (La. 1/24/97); 686 So.2d 860, a panel of this court stated the following:
Generally, an employee who has an accident while traveling to and from work is not in the course and scope of employment and, thus, is not entitled to worker's compensation benefits. See Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975); Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404; writ not conside
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