RALSER v. HARRAH NEW ORLEANS (2026)

In this worker's compensation proceeding, defendant-employer, Jazz Casino Company, L.L.C., d/b/a Harrah's New Orleans Casino (“Harrah's”), appeals the June 18, 2025 judgment of the Office of Worker's Compensation (“OWC”), which found, pursuant to the threshold doctrine, that claimant-employee, Terri Ralser (“Claimant”), sustained a compensable work-related injury. The judgment appealed awarded Claimant past and future medical benefits; $9,675.31 in indemnity benefits; $4,000.00 in penalties; and $15,000.00 in attorney fees. For the following reasons, we vacate the portion of the judgment awarding $15,000.00 in attorney fees and remand the matter to the OWC for a hearing to determine a reasonable amount of attorney fees. In all other respects, we affirm the judgment.

Factual and Procedural Background

This litigation arises out of a February 22, 2024 incident during which Claimant, an employee of Harrah's, sustained injuries. In her Disputed Claim for Compensation - Form 1008, Claimant alleged that, while arriving to work at Harrah's for her overnight shift, she “tripped over a forklift that was positioned in front of the [employee] entrance to the casino.” The matter proceeded to trial. At trial, Claimant, her husband, and a Harrah's representative testified. The OWC, in written reasons for judgment, provided the following facts as presented at trial:

Claimant, Terri Ralser, and her husband are long-time employees of Harrah's New Orleans Casino, both having started in 1999. Terri Ralser was a table games dealer. Terri Ralser testified that on February 22, 2024 at approximately 1:30 am, her husband near the employee entrance on Poydras Street, dropped her off. Claimant, Terri Raiser, further testified that normally the two of them park in the parking garage designated for employees and walk over. However, on this date, she had a bathroom emergency and her husband dropped her off near the employee entrance. The location where Terri Ralser was dropped off is in direct line with the walking path the employees use after leaving the employee designated parking garage. In surveillance video admitted as evidence, it is observed that Terri Ralser exited the vehicle and started walking toward the employee entrance; she tripped and fell over an extended arm of a forklift that was parked adjacent to the employee entrance. No caution signs or barriers were evident in the surveillance video the court viewed. The court further learned through her testimony, the testimony of other witnesses and later through the admitted surveillance video that this area was primarily used by employees to enter and exit the casino because of the path to the employee designated parking garage. It was also observed in the surveillance video on the same day Terri Ralser fell, that another unknown employee tripped and fell in the same location on the same structure.

Claimant, Terri Ralser, further testified that the employee designated parking garage is located at 601 Convention Center Boulevard and that after exiting the parking garage on Fulton Street, employees walk down Fulton Street to Poydras Street. Employees are not permitted to use the underground tunnel that crosses Poydras Street unless there is inclement weather. Terri Ralser further testified that the Fulton Street path is in direct line with the employee entrance, and that the majority of employees use it to then cross in the middle of Poydras Street through a worn pathway in the median of Poydras Street.[1] Claimant, Terri Ralser, testified that she reported the fall immediately to the security guard and was instructed to make a report. She further testified that she needed to wait for the table games manager to complete the report. At her break, she reported the accident to her shift manager and then went to write the report with Charles Goldstein. Claimant, Terri Ralser, testified that she completed the written report at which time she described what occurred and indicated that she injured her left ankle, left wrist, and right knee.

Claimant, Terri Ralser, was approved to visit Concerta and was seen later that morning on February 22, 2024. She was evaluated and was instructed to return to work. Claimant testified that her pain was unbearable and returned [to] Concerta the next day, Friday, February 23, 2024 and was then released to work with restrictions. Over that weekend, she began to have pain in her left low back and/or hip. Claimant returned to Concerta on Monday, February 26, 2024 and was then placed on a no-work status. Claimant, Terri Ralser, then sought treatment with Dr. Luis Espinosa on March 1, 2024 for the ongoing pain in her right knee and left hip. Dr. Espinosa ordered an MRI of her right knee and left hip. Her claim for workers’ compensation was denied on March 13, 2024. Claimant testified that she had the MRI performed independently and it revealed a torn medial meniscus, linear stellate nondisplaced fracture with bone marrow edema and contusion inferomedial pole of the patella, left anterosuperior acetabular labral tear, and linear stellate micro tract fracture pattern with bone marrow edema left femoral neck. She was unable to return to work and taken off work by Dr. Espinoza. On March 27, 2024, Terri Raiser underwent a right knee arthroscopic partial lateral menisectomy, patella chondroplasty, medial femoral condyle chondroplasty and media plica excision. Afterwards, she underwent significant physical therapy and attempted to return to work on May 17, 2024 out of necessity because of financial strain on her household and because her FMLA had been exhausted. She testified she could only do her physical therapy on her off days. After returning to work her hip began to hurt and her right knee flared up and began to hurt. She further testified that on August 12, 2024 another MRI was performed and revealed a slightly larger fracture and was referred to Dr. Chad Millet for evaluation.

Mr. Stacey Dorsey (“Mr. Dorsey”), the Director of Security Risk and Facilities for Harrah's, testified at trial that the casino contracted with a third-party to perform construction services at the casino during the time of Claimant's accident and that the forklift involved in Claimant's accident was owned by the construction company. Mr. Dorsey also testified that, immediately following Claimant's fall, Harrah's directed the construction company to move the forklift to another location.

At trial, the parties entered the following stipulations:

(1) Claimant, Terri Ralser's compensation rate would be $816.00/week, if she is entitled to workers’ compensation benefits;

(2) Claimant, Terri Ralser, was out of work from February 23, 2024 through May 16, 2024, for a period of 11.857 weeks or 83 days, as a result accident;

(3) Claimant, Terri Ralser, would be entitled to past indemnity totaling $9,675.31, if she is entitled to workers’ compensation benefits;

(4) Claimant, Terri Ralser, received $7,853.80 in short-term disability from New York Life Insurance Company as result of the injuries from the February 22, 2024 accident.

(5) Claimant, Terri Ralser's short-term disability plan did not cover occupational injuries or diseases;

(6) Claimant, Terri Ralser, would be required to repay New York Life Insurance Company $7,853.80 for disability benefits received, if she is found to have received an occupation injury.

The OWC ultimately found that Claimant sustained a compensable work-related injury to her left wrist, left ankle, right knee, low back and left hip, which entitled her to indemnity benefits for the period of February 23, 2024 to May 16, 2024. The OWC judgment awarded Claimant $9,675.31 in indemnity benefits. The OWC judgment further assessed $2,000.00 in penalties for Harrah's failure to pay medical benefits and $2,000.00 in penalties for Harrah's failure to pay indemnity benefits, and awarded $15,000.00 in attorney fees under La. R.S. 23:1201. This timely appeal followed.

LAW AND ANALYSIS

On appeal, Harrah's assigns five assignments of error. The first three assignments challenge the OWC's determination that Claimant sustained a work-related compensable injury.² Harrah's further complains of the OWC's calculation of Claimant's average weekly wage to reach the amount of benefits awarded. Finally, Harrah's challenges the award of penalties and attorney fees under the facts of this case. We address each assignment in turn.

Applicability of the Threshold Doctrine

“Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident ‘arising out of and in the course of his employment.’ ” McLin v. Indus. Specialty Contractors, Inc., 02-1539, p. 4 (La. 7/2/03), 851 So.2d 1135, 1139 (quoting La. R.S. 23:1031). The requirement that an employee's injury occur “in the course of” employment focuses on the time and place relationship between the injury and the employment. Id., 02-1539, p. 4, 851 So.2d at 1139-40 (quotations omitted).

Generally, an employee's injuries sustained while traveling to or from a place of employment are not compensable under the Workers’ Compensation Act. McLin, 02-1539, p. 4, 851 So.2d at 1140 (citing Stephens v. Justiss–Mears Oil Co., 312 So.2d 293 (La. 1975); W. Malone & H. Johnson, 13 Louisiana Civil Law Treatise—Workers Compensation § 168 (4th ed. 2002). This “going-and-coming rule” is “premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work.” Id.

“The going-and-coming rule is, however, subject to various exceptions.” McLin, 02-1539, p. 5, 851 So.2d at 1140. One jurisprudentially recognized exception to the going-and-coming rule is the “threshold doctrine.” The threshold doctrine applies “when an accident occurs at a place with an unusually hazardous travel risk which is immediately adjacent to, but not on, the employer's premises.” Hall v. House, Golden, Kingsmill & Reiss, 97-988, p. 2 (La. App. 5 Cir. 5/27/98), 717 So.2d 250, 252 (quoting Mundy v. Department of Health and Human Resources, 593 So.2d 346 (La. 1992)). “Under this doctrine, an employee who meets with an accident not on his or her employment premises while traveling to and from work, can recover if he or she successfully proves that (1) a distinctive travel risk exists for the employee in going to or coming from work, and (2) the risk exists immediately adjacent to his or her place of work.” Lawless v. PAE Holding Corp., 25-41, p. 9 (La. App. 3 Cir. 5/21/25), 416 So.3d 707, 716 (quoting Posey v. NOMAC Drilling Corp., 44,428, p. 10 (La. App. 2 Cir. 8/12/09), 16 So.3d 1211, 1217)(quotations omitted). “ ‘The threshold doctrine generally involves a special risk, attributable to the location of the work premises, that is different from the risks to which the general traveling public is exposed or that is more aggravated in the area adjacent to the employer's premises than elsewhere.’ ” Hall, 97-988, p. 2, 717 So.2d at 252 (quoting Mundy, 593 So.2d at 350 (emphasis in original citation)).

“In workers’ compensation cases, appellate courts apply the manifest error, or clearly wrong, standard of review to factual findings by the Office of Workers’ Compensation.” Lentz v. City of New Orleans, Police Dep't, 22-0500, p. 4 (La. App. 4 Cir. 12/15/22), 353 So.3d 1060, 1064 (quoting Matthews v. Big Easy Janitorial, L.L.C., 22-0164, pp. 5-6 (La. App. 4 Cir. 8/10/22), 346 So.3d 325, 330-31. Whether an exception to the going-and-coming rule applies to a particular case is a question of fact. Lawless, 25-41, p. 9, 416 So.3d at 716 (quoting Posey, 44,428, p. 10, 16 So.3d 1211, 1217). Moreover, whether a distinctive travel risk exists, in analyzing applicability of the threshold doctrine, is a question of fact. Stewart v. Louisiana Plant Serv. Inc., 611 So.2d 682, 686 (La. App. 4th Cir. 1992); see also Lawless, 25-41, p. 9, 416 So.3d at 707, and cases cited and discussed therein.

After considering the applicable law, the OWC judge made the following findings:

Claimant, Terri Ralser, has demonstrated by a preponderance of the evidence that her claim is compensable under the “threshold doctrine”. The court's review of the surveillance video and testimony of witnesses adduced at trial have showed that the forklift arm presented a distinctive travel risk for an employee headed to the employee entrance. Employer's witnesses testified that the forklift was in the location due to construction being performed on employer's premises. The court did not see in the surveillance video or hear any testimony that any safety barriers were in place to prevent employees or anyone from traversing the area. Employer's witness further testified that once they became aware of the accident, remedial measures were taken to ensure the safety of individuals traversing the area; the forklift was removed from the location. This area in question was immediately adjacent to the place of work, the employee entrance. Claimant, Terri Ralser's argument is correct and corroborated by case law that she had a much greater probability of sustaining her injury posed by the forklift arm placement because her employment required her to be exposed to this specific area, to greater extent and frequency than the general public. Claimant, Terri Ralser, has proven that (1) a distinctive travel risk exists for the employee in going to or coming from work and (2) the risk exists immediately adjacent to her place of work.

A review of the record reflects that, at the conclusion of trial and after considering the testimony of the witnesses and surveillance and photographic evidence submitted, the OWC took the matter under advisement. The OWC thereafter determined that Claimant, while arriving to the casino for her shift, tripped on a forklift—which was not owned by but within the control of the defendant-employer Harrah's—immediately in front of the casino's employee entrance. The OWC considered the video surveillance which demonstrated that the majority of employees, arriving in the middle of the night in downtown New Orleans, took the exact route when parked in the employee designated parking garage, crossing Poydras Street through a worn pathway, and walking to the curb where Claimant fell to reach the casino's required employee entrance. The OWC determined that a forklift—with no signage or barriers properly placed—directly in front of the employee entrance and in direct line with the pathway utilized by many employees to arrive for work, was a distinctive travel risk immediately adjacent to the casino, thereby triggering applicability of the threshold doctrine. Upon review of the surveillance video and all evidence submitted at trial, we cannot say that the trial court's findings were manifestly erroneous. This assignment lacks merit.

Average Weekly Wage Compensation Calculation

On appeal, Harrah's complains of the average weekly wage calculation utilized by the OWC in its written reasons for judgment to reach the $9,675.31 amount awarded. However, at trial, the parties entered into the following joint stipulations concerning calculation of the indemnity benefits to which Claimant would be entitled, if the OWC determined Claimant sustained a compensable injury:

(1) Claimant, Terri Ralser's compensation rate would be $816.00/week, if she is entitled to workers’ compensation benefits;

(2) Claimant, Terri Ralser, was out of work from February 23, 2024 through May 16, 2024, for a period of 11.857 weeks or 83 days, as a result accident;

(3) Claimant, Terri Ralser, would be entitled to past indemnity totaling $9,675.31, if she is entitled to workers’ compensation benefits;

The record reflects that Harrah's stipulated to the amount of benefits Claimant would receive, should she prevail at trial, and that the OWC's award of benefits is in line with those stipulations. “A stipulation has the effect of a judicial admission or confession, which binds all parties and the court when it is not in derogation of law.” Cordon v. Par. Glass of St. Tammany, Inc., 15-1078, p. 6 (La. App. 1 Cir. 4/15/16), 195 So.3d 109, 112 (citing Crawford v. Blue Cross Blue Shield of Louisiana, 99-2503, p. 7 (La. App. 1 Cir. 11/3/00), 770 So.2d 507, 512). The OWC's calculation presented in its written reasons for judgment simply demonstrated a lawful means by which that amount could have been reached and agreed upon by the parties. However, Harrah's may not now, on appeal, challenge the amount awarded, to which it previously stipulated. See La. C.C.P. art. 2085. We find therefore that Harrah's has waived any assigned error concerning the calculation of benefits awarded. This assignment lacks merit.

Attorney Fees and Penalties

Finally, Harrah's assigns as error the OWC's award of penalties and attorney fees against it pursuant to La. R.S. 23:1201(F).³ Harrah's contends that penalties and attorney fees are improper in this case pursuant to La. R.S. 23:1201(F)(2) because it reasonably controverted the compensability of Claimant's claim under the facts of this case, where the accident occurred on a public roadway and not on Harrah's premises.

Louisiana Revised Statute 23:1201(F) “authorizes the imposition of penalties and attorney's fees against an employer or insurer who fails to pay workers’ compensation benefits.” Prevost v. City of New Orleans Fire Dep't, 24-0114, p. 18 (La. App. 4 Cir. 10/1/24), 400 So.3d 1036, 1049 (quoting Matthews, 22-0164, p. 18, 346 So.3d at 336-37). Nevertheless, La. R.S. 23:1201(F)(2) provides that imposition of penalties or attorney fees is not proper when the defendant-employer has “reasonably controverted” the claim. “To reasonably controvert a claim as that phrase is used in La. R.S. 23:1201(F)(2), ‘the defendant[-employer] must have some valid reason or evidence upon which’ it based its decision.” Reissland v. Valluzzo Companies, LLC, 25-0379, p. 16 (La. App. 4 Cir. 12/29/25), ––– So.3d ––––, –––– (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890).

“Awards of penalties and attorney's fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers.” Newman v. Concordia Elec. Coop., Inc., 24-630, p. 5 (La. App. 3 Cir. 2/5/25), 407 So.3d 49, 53 (quoting Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La. 6/29/99), 737 So.2d 41, 46). “Whether an employer has failed to reasonably controvert a claim is a question of fact.” Prevost, 24-0114, p. 19, 400 So.3d 1036, 1049-50 (citing Thibodaux v. Grand Isle Shipyard, Inc., 16-0583, p. 18 (La. App. 4 Cir. 12/21/16), 207 So.3d 459, 471). “The applicable standard of review in determining whether a defendant[-employer] should be cast with penalties and attorney fees is the manifest error-clearly wrong standard.” Newman, 24-630, p. 6, 407 So.3d at 53 (quoting Bennett v. Pilgrim's Pride, 07-753, p. 10 (La. App. 3 Cir. 12/12/07), 972 So.2d 423, 429).

The record demonstrates that Harrah's did not dispute Claimant's claim until after an MRI was ordered by her treating physician, and a more serious injury was suspected. Moreover, as a result of Harrah's failure to pay, Claimant, a long-time Harrah's employee, was required to use her own funds for medical treatment and expend her FMLA leave without pay and return to work due to financial necessity.

Upon review of the record in this case, we cannot say that the OWC was manifestly erroneous in its factual determination that Harrah's failed to reasonably controvert Claimant's claim. Accordingly, we find the OWC was not manifestly erroneous in its judgment imposing penalties and attorney fees against Harrah's pursuant to La. R.S. 23:1201.

However, the record in this case reflects that no evidence was introduced at trial or at any separate hearing to determine a reasonable amount of attorney's fees. Although the $2,000.00 penalty amount for failure to pay medical or indemnity benefits is specifically provided for by La. R.S. 23:1201(F), the amount of a “reasonable” attorney fee is not statutorily provided. “The amount of attorney fees rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record.” Newman, 24-630, p. 8 (La. App. 3 Cir. 2/5/25), 407 So.3d 49, 55 (quoting McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La. 11/28/00), 773 So.2d 694, 700).

Because we are unable to determine from the record an appropriate or reasonable amount for this award, we must remand. Therefore, we vacate only that portion of the judgment awarding $15,000.00 in attorney fees and remand the case to the OWC for a determination of a reasonable award, supported by appropriate evidence. See Arsenaux v. City of New Orleans, 98-1405, p. 7 (La. App. 4 Cir. 12/23/98), 729 So.2d 1056, 1060.

Answer to Appeal

Claimant has filed an Answer to the appeal, requesting additional attorney fees for work performed on appeal. Given that we remand the matter to the OWC for a calculation of an appropriate award of attorney fees, we decline to award additional attorney fees on appeal.

DECREE

Accordingly, we vacate that portion of the OWC judgment insofar as it awarded $15,000.00 in attorney fees and remand to the OWC for a hearing to determine a reasonable amount, based on evidence introduced into the record, to be awarded for attorney fees pursuant to La. R.S. 23:1201. In all other respects, the OWC judgment is affirmed.

AFFIRMED IN PART; VACATED IN PART; REMANDED

FOOTNOTES

1.   When questioned why she did not walk down the block to the crosswalk, Claimant testified, “[i]t's the middle night, you go the quickest path in New Orleans.” She further testified that she had never observed any employee taking the route to the crosswalk as suggested by defense counsel.

2.   Harrah's first three assignments of error specifically challenge the OWC's applicability of the threshold doctrine under the facts of this case: (1) The OWC erred as a matter of law by applying the threshold doctrine to an off premises, off-the-clock accident in a public right-of-way involving a temporary, third-party forklift; claimant failed to prove a distinctive, employment-related travel risk; (2) The OWC legally erred in concluding the accident occurred in an area “immediately adjacent” to the workplace within the meaning of the threshold doctrine; the fall occurred in the public street before the public sidewalk, and claimant had multiple other safe, marked ingress routes; and (3) Alternatively, the WCJ manifestly erred in finding that claimant was regularly and necessarily exposed to the forklift hazard.

3.   La. R.S. 23:1201(F) provides:F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

Judge Monique G. Morial