An employer who is assessed both workers’ compensation benefits and tort damages gets a credit, or offset, for the amount of workers’ compensation benefits that the employer had already paid to the injured worker.  The recent decision by the Third Circuit Court of Appeal for the State of Louisiana in Hebert v. Richard is illustrative.

In that case, Mr. Hebert was seriously injured when he fell to the ground from a helicopter owned by his employer, Industrial Helicopters, Inc. (“Industrial”).  Initially, the trial court found that Mr. Hebert was acting in the course and scope of his employment with Industrial at the time of the accident, thus granting Industrial tort immunity.  In due course, Industrial paid Mr. Hebert indemnity and medical benefits under Louisiana’s workers’ compensation scheme.

After a jury trial, the jury found Mr. Hebert to have been 56% at fault for the accident, and Industrial 44% at fault, and awarded Mr. Hebert $2 Million in special and general damages.  Inasmuch as there was a finding that Mr. Hebert was acting in the course and scope of his employment for Industrial at the time of the accident, Industrial was immune from the tort liability.

On appeal, however, the Third Circuit found that certain statements by Industrial in its filings constituted a judicial confession that Mr. Hebert was not acting in the course and scope of his employment with Industrial at the time of the accident, thereby stripping Industrial of its immunity from the tort suit.  The Court of Appeal remanded to the trial court for a determination regarding whether Industrial was entitled to an offset for workers’ compensation benefits already paid.  The trial court ordered that Industrial was entitled to a credit, and further ruled that the parties were to share the costs of the proceedings.

The Third Circuit affirmed the trial court’s award of a credit for the full amount of workers’ compensation benefits already paid by Industrial, as Industrial was not responsible for workers’ compensation benefits since Mr. Hebert was not in the course and scope of his employment.  The Third Circuit, however, ruled that costs of the proceedings should be assessed against Industrial, since Mr. Hebert was the prevailing party on the prior appeal.

Hebert v. Richard