196 So. 3d 127
La. Ct. App.2016Background
- O’Bannon worked for Moriah Technologies beginning November 28, 2011; he received an unsigned independent-contractor agreement, was paid hourly, and was provided a company truck, equipment, and per diem card.
- While working a UMTS upgrade in Louisiana on June 2, 2012, O’Bannon sat for long periods on a narrow pipe and later developed bruising; two weeks later he was diagnosed with DVT leading to a pulmonary embolism and was hospitalized twice.
- Moriah reported the injury to its insurer Texas Mutual Insurance Company (TMIC), which denied coverage as not work-related; O’Bannon filed a disputed claim for workers’ compensation benefits against Moriah and TMIC.
- At trial the WCJ found O’Bannon was an employee (not an independent contractor), sustained a compensable accident/injury (physical trauma from sitting on the pipe), and awarded indemnity, medical benefits, penalties, and attorney’s fees; the WCJ dismissed Moriah’s cross-claim against TMIC for lack of OWC subject-matter jurisdiction.
- On appeal the court affirmed the employee finding and compensability, vacated the WCJ’s lack-of-jurisdiction ruling as to TMIC, remanded for further proceedings on coverage, and awarded O’Bannon an additional $5,000 in appellate attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O’Bannon was an employee or independent contractor | O’Bannon argued the relationship and control showed an employee status (hourly pay, direction by Moriah) | Moriah argued parties intended an independent-contractor relationship (contract packet, no tax withholding, contractor model) | Court: Employee — WCJ’s factual finding affirmed (no manifest error) |
| Whether an "accident" and compensable injury occurred under La. R.S. 23:1021(1) and (8)(a) | O’Bannon argued physical trauma (bruising from prolonged sitting) caused DVT and PE, making it a compensable accident/injury | Moriah argued no sudden accident (no impact) and injury was perivascular requiring heightened proof under §1021(8)(e) | Court: Compensable accident/injury under general principles; WCJ reasonably found trauma from sitting caused DVT/PE; affirmed |
| Whether the perivascular/heart-related statute §1021(8)(e) (heightened standard) governs | O’Bannon argued injury resulted from physical trauma and thus §1021(8)(e) does not apply | Moriah argued injury is perivascular and plaintiff failed to prove extraordinary, unusual work stress by clear and convincing evidence | Court: §1021(8)(e) not applied because injury resulted from physical trauma; no need to address heightened-proof claim |
| Whether OWC had subject-matter jurisdiction over claims against TMIC (coverage/reimbursement) | O’Bannon sought OWC jurisdiction over insurer coverage and cross-claims under La. R.S. 23:1310.3(F) | TMIC argued the policy was a reimbursement contract governed by Texas law and thus not within Louisiana OWC jurisdiction | Court: Vacated WCJ dismissal; OWC has jurisdiction over coverage and indemnification disputes arising under the Workers’ Compensation chapter; remanded for further proceedings |
Key Cases Cited
- Mart v. Hill, 505 So.2d 1120 (La. 1987) (two-part test for appellate review of factual findings)
- Hickman v. Southern Pacific Transport Co., 262 So.2d 385 (La. 1972) (factors and control test for independent-contractor analysis)
- Charles v. Travelers Ins. Co., 627 So.2d 1366 (La. 1993) (§1021(8)(e) not intended to cover perivascular injuries directly resulting from physical impact)
- Populis v. Home Depot, Inc., 991 So.2d 23 (La. App. 1st Cir. 2008) (perivascular injury from physical impact analyzed under general workers’ compensation principles)