Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…

The recent decision in Gibson v. Wal-Mart Louisiana, LLC, 20-0033 (La. App. 4 Cir. 8/27/20), 2020 WL 507804 re-affirms that a workers’ compensation claim based on an unwitnessed accident is subject to pretrial dismissal where there is no corroborating evidence.

In Gibson, the plaintiff, a department manager for Walmart, claimed injury while picking up boxes. Although no one witnessed the incident, the plaintiff claimed that two managers working nearby were made aware of the accident and injuries almost immediately.

Walmart denied the claim in response to numerous “red flags.” For example, the two managers identified by the claimant denied any knowledge. Also, the first reference in a medical record to the alleged June accident came in mid-October.

Walmart filed a motion for summary judgment arguing that plaintiff did not satisfy her evidentiary burden. In response, Gibson countered that the conflict between her testimony, the co-workers’ testimony, and the medical records created genuine issues of material fact to be decided at trial. The OWC trial court granted summary judgment and the plaintiff appealed.

In affirming the dismissal, the Fourth Circuit Court determined that Gibson’s testimony, standing alone, did not create a genuine issue of material fact. The general rule regarding unwitnessed accidents in worker’s compensation cases is well defined. Under this rule, an employee may prove by his or her testimony alone that an unwitnessed accident occurred only if the employee can establish that: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215, 218.

Because evidence such as the delay in medical treatment raised doubt and Gibson lacked other corroboration, the dismissal of her claim was upheld. Gibson reminds that questionable unwitnessed accident claims without corroborating evidence can and should be dismissed via pretrial motion, notwithstanding the “relaxed rules of evidence and procedure” in workers’ compensation courts.

Ed Stauss is a partner with Keogh Cox. His practice relates mainly to workers compensation defense and the subrogation recovery. Ed is an avid and long time fan of the professional and major college sports teams in the area. He also enjoys running year-round, from 2 milers & 5Ks in the spring and summer to half marathons and full marathons in the fall and winter.

Louisiana’s “anti-dram shop” statute, La. R.S. 9:2800.1, limits the ability of a claimant to hold a provider of alcohol liable for damages resulting from the acts of an intoxicated patron. Subsection A of the statute declares that the consumption of intoxicating beverages, rather than the sale, serving, or providing of those beverages, is the proximate cause of any injury or property damage that the consumer may cause. Under Subsection B, anyone who lawfully serves alcohol to a person of legal age is provided immunity for any injury caused by the consumer that occurs “off the premises.” This immunity extends to sellers of alcohol and social hosts.

The Louisiana Second Circuit recently examined these provisions of this statute in Rugg v. Horseshoe Entertainment, et. al. The plaintiff alleged she was injured when an intoxicated patron (John Doe) fell onto her at a hotel bar. She alleged that the defendant, which operated a casino bar, was liable because it ignored multiple complaints about John Doe’s drunken state prior to the incident and failed to escort him out.

The defendant moved for summary judgment, arguing that Louisiana’s anti-dram shop statute prevented any finding of liability on its part. In opposing the summary judgment, the plaintiff argued that the statute did not rule out liability because the injury occurred on the premises.

The Second Circuit determined that the immunity afforded in Subsection B of the statute was not available because, as the plaintiff argued, the injury occurred on the premises. However, Subsection A of the statute, which declares the consumption, not the serving, of alcohol is the proximate cause of injury inflicted by an intoxicated person, still applied.

Under these circumstances, the Court held it had to determine whether the bar owner violated general negligence principles. In conducting this analysis, the court was required to focus on two issues: 1) whether the alcohol provider acted reasonably under the circumstances, and 2) whether the alcohol provider took any “affirmative acts” that increased the chances of the incident.

The Court of Appeal granted summary judgment under the facts of the case. The court found no evidence in the record that Horseshoe acted unreasonably leading up to the incident. Testimony indicated that the complaints about John Doe’s behavior arose after the incident occurred, not before. Similarly, the court reasoned that the failure to escort John Doe out of the bar was not an “affirmative act” that increased the risk of the incident because the record did not indicate Horseshoe had any reason to do so prior to the injury.

In conclusion, the court noted “that in no case will the serving of alcohol be held as the proximate cause of a tort in which alcohol was involved.” Therefore, the plaintiff had to show Horseshoe did something more to cause her injury than just serve John Doe alcohol. Because the plaintiff failed to do so, summary judgment was granted. Under these facts, Louisiana’s dram shop statute still applied to protect the defendant provider of alcohol, even though the injury occurred on its premises and the statutory immunity was not available.

References:

La. R.S. 9:2800.1

Mechelle Rugg v. Horseshoe Entertainment, et al., 55,239 (La. App. 2 Cir. 1/10/24), 2024 WL 104143.

In Ralser v. Harrah’s New Orleans, the claimant tripped over the extended arm of a forklift while walking toward the employee entrance for the defendant’s casino. A third-party construction contractor had parked the forklift adjacent to the employee entrance while doing work on the premises. Surveillance footage showed that no warning signs, barricades, or other safety devices had been placed around the forklift. Evidence also showed that another employee tripped over the same forklift on the same day.

Generally, an employee's injuries sustained while traveling to or from a place of employment are not compensable under the Workers’ Compensation Law. This is known as the “going-and-coming rule.” However, at trial, the workers’ compensation judge applied the Threshold Doctrine, an exception to this general rule, and found the accident occurred in the course and scope of the claimant’s employment. Under Louisiana law, the Threshold Doctrine applies when:

1. A distinctive or unusual travel risk exists; and
2. The risk is immediately  adjacent to the employer’s premises.

On appeal, the employer argued that the trial judge was manifestly erroneous in applying the Threshold Doctrine. However, in affirming the trial court’s determination, the appellate court emphasized several factual findings that supported application of the doctrine:

• The forklift created a  distinctive travel hazard.
• The hazard was  immediately adjacent to the employee entrance.
• Employees regularly traversed the route where the forklift was located.
• The risk arose from construction activities associated with Harrah’s premises.
• No warnings, barricades,  or protective measures were in place to protect employees from the hazard.

Under the facts of this case, the court found the Threshold Doctrine applied. Even though the employer did not own the forklift, evidence showed the forklift was within the defendant-employer’s control and presented a distinct travel risk immediately adjacent to the casino.  

While it may be limited to its facts, this decision is significant because it appears to extend application of the Threshold Doctrine and suggest employers may be held responsible for dangers created by conditions near workplace access points, even when those conditions arise from the activities of third parties. Because Ralser presented very unique circumstances, it remains to be seen whether the decision will impact the well-established Threshold Doctrine beyond its facts.

References:

 Ralser v. Harrah’s New Orleans, ___ So. 3d ___, 2026WL 1090787 (La. App. 4 Cir. 4/22/26).

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