Summary of a Recent
Judicial Development in
Labor

Employee's Drowning Not Compensable Under Workers' Compensation

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Obein v. Mitcham Peach Farms, LLC, 997 So. 2d 670, 2008 WL 4724295 (La. Ct. App. 2008), the Louisiana Court of Appeals held that an employee who drowned swimming in pond nearby his workplace after the workday had ended was not acting in the course of his employment, so his drowning was not compensable under worker's compensation.

Background

In July 2005, Augustine Obein drowned while swimming in a pond located about 30 yards from the peach orchard where he worked. Id. at *2. That morning, the workday had been cut short because of rain, and after being goaded by the other employees Obein told his supervisor he was going to swim in the nearby pond. Id. at *1. The supervisor told him that he could do so because they were off the clock, and asked him whether he was sure that he wanted to attempt it. Id. Obein stated he was. Id. His family subsequently filed for workers' compensation benefits, arguing that Obein's death resulted from his employment with the peach farm, but the workers' compensation judge found that the swimming activity was not within the course and scope of Obein's employment, because he had already clocked out and the activity was unrelated to his task of picking peaches. Id. at *2. The judge dismissed the claim, and the plaintiffs appealed. Id.

Analysis and Holdings

The court explained that when considering whether injuries sustained in connection to social activities are compensable under workers' compensation, the Louisiana Supreme Court has held that such activities are within the course of employment when:

(1) [t]hey occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) [t]he employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) [t]he employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Id. at *3 (citing Jackson v. Am. Ins. Co., 404 So. 2d 218 (La.1981)).

Considering those factors, the court agreed with the workers' compensation judge that Obein's drowning was not in the course of his employment with the defendant. Id. at *3-4.

The case was decided on October 29, 2008.