O'Bannon v. Moriah Techs., Inc.
| Decision Date | 03 June 2016 |
| Docket Number | No. 2015 CA 1460.,2015 CA 1460. |
| Citation | 196 So.3d 127 |
| Parties | Adam O'BANNON v. MORIAH TECHNOLOGIES, INC. and Texas Mutual Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
James E. Cazalot, Slidell, LA, Attorney for Appellee Plaintiff—Adam O'Bannon.
Scott L. Zimmer, William Priestley, Shreveport, LA, Attorneys for Appellant Defendant—Moriah Technologies, Inc.
Charles V. Musso, Jr., Lake Charles, LA, Attorney for Appellant Defendant—Texas Mutual Insurance Company.
Before WHIPPLE, C.J., WELCH, and DRAKE, JJ.
The defendant/appellant, Moriah Technologies, Inc. (“Moriah”), appeals a judgment from the Office of Workers' Compensation (“OWC”) awarding the plaintiff/appellee, Adam O'Bannon (“plaintiff”), indemnity benefits, medical benefits, penalties and attorney fees. Additionally, both Moriah and the plaintiff challenge the workers' compensation judge's (“WCJ”) finding that it did not have subject matter jurisdiction over claims against defendant/appellee, Texas Mutual Insurance Company (“TMIC”). For reasons that follow, we affirm in part and reverse in part, and remand this matter for further proceedings.
The instant appeal arises out of a workers' compensation claim filed by the plaintiff seeking benefits in connection with a pulmonary embolism he suffered after working on a cellular telephone tower in the course of his employment with the defendant, Moriah.
Moriah is a Texas corporation that provides installation services in the cellular telephone tower industry. The plaintiff began working for Moriah on November 28, 2011. After being contacted by a former colleague regarding a job opening at Moriah, the plaintiff flew to Texas on November 28, 2011, at his own expense, to meet with Randall Morgan, the president of Moriah.1 During their initial meeting, the plaintiff and Mr. Morgan discussed the nature of the position. They further reached an agreement as to an hourly rate of pay that the plaintiff would receive. At that time, the plaintiff was provided a packet of four employment documents, including an independent contractor agreement, 1099 Contractor Terms form, a W–9 tax form, and a mutual confidentiality agreement. The plaintiff took the independent contractor agreement and mutual confidentiality agreement with him to review, and he signed and returned the mutual confidentiality agreement, but never returned a signed copy of the independent contractor agreement. Immediately following the November 28, 2011 meeting, at Moriah's direction, the plaintiff departed for Tennessee to begin work after being provided with a company-owned pick-up truck and assorted equipment.
During the timeframe relevant herein, Moriah's main client was NSORO, another installation service provider contractor. AT & T contracted with NSORO to service and maintain cellular telephone towers. Initially, the plaintiff was assigned by Moriah to work on the “Tiger Team” at the direction of NSORO or AT & T. While on the Tiger Team, the plaintiff and one “climber,” who was selected and paid by Moriah, would perform short-term testing and maintenance projects at various towers, sometimes performing multiple jobs in one day
After several months of working on the Tiger Team, the plaintiff was assigned by Moriah to a crew of three to four men, who were also selected and paid by Moriah, to perform UMTS upgrades on cellular phone antennas. The UMTS upgrades required the crew to work at one job site for several weeks at a time. At all times relevant herein, a majority of Moriah's work was performed for NSORO in Texas, Tennessee, and Louisiana. The majority of the jobs that the plaintiff worked on were located in Tennessee and Louisiana.
The disputed accident herein occurred while the plaintiff was working on a UMTS upgrade project in Napoleonville, Louisiana. The plaintiff alleges that on June 2, 2012, he spent approximately ten hours working on the tower. According to the plaintiff, the tower had an unusual and complex configuration that required him to sit on a small pipe with his dangling legs wrapped around the pipe to secure him for hours while performing work on six different antennas. Later that day, the plaintiff immediately drove four hours roundtrip to transport another worker and a piece of equipment to a job being undertaken in Jackson, Mississippi.
The plaintiff testified that bruises caused by sitting on the pipe appeared: on the backs of his thighs that night or the next day. However, noting that it was not unusual to sustain minor injuries while working, the plaintiff testified that he continued working. On, Sunday, June 17, 2012, the plaintiff sought treatment for rib pain at an emergency room in Many, Louisiana, while he was working on a job in that area. The plaintiff reported to the medical staff that one day earlier he began experiencing pain in his ribcage. The plaintiff was diagnosed with chest wall pain and released. The plaintiff returned to work the following day, and worked his last day on June 20, 2012.
On the morning of June 21, 2012, the plaintiff called Mr. Morgan and informed him that he felt ill and would like to go home to Slidell. Mr. Morgan did not prohibit the plaintiff from going home. On June 22, 2012, the plaintiff reported to Doctors' Urgent Care clinic, complaining of chest pain and difficulty breathing. Following testing that indicated the presence of a blood clot, the plaintiff was diagnosed with a pulmonary embolism and immediately hospitalized.
The plaintiff was hospitalized twice in connection with his pulmonary embolism in June and July of 2012. The medical records from his first hospitalization, June 22, 2012 to June 27, 2012, indicate that the plaintiffs pulmonary embolism was the result of deep venal thrombosis (“DVT”), or a deep blood clot, that dislodged and travelled to his lung. The plaintiff's hospital discharge records opine that the “likely cause” of the plaintiff's DVT was recent extended periods of sitting on a very narrow metal pipe under his thighs. Approximately one month later, the plaintiff was again hospitalized and underwent surgery after experiencing pleural effusion, or fluid build up in the lungs, secondary to his earlier pulmonary embolism.
While hospitalized, the plaintiffs mother notified Moriah that he had sustained a work-related injury. Moriah, in turn, submitted a claim to TMIC, its workers' compensation coverage provider. On August 14, 2012, TMIC issued a letter to the plaintiff denying the claim on the grounds that the plaintiff did not sustain an injury in the course and scope of his employment, but rather, concluding that the plaintiff was suffering from an ordinary disease of life.
On October 23, 2012, the plaintiff filed a disputed claim for compensation with the OWC in Louisiana against Moriah and TMIC. Moriah answered and denied that the plaintiff was entitled to any recovery under workers' compensation on several grounds, including that the plaintiff was an independent contractor and the plaintiff did not suffer a compensable injury. TMIC initially responded to the plaintiff's claim with an exception of lack of personal jurisdiction, which was denied by the WCJ in an order dated May 1, 2013. TMIC later answered the plaintiff's disputed claim and denied liability on multiple grounds, including lack of coverage under its policy for the plaintiff's claims and the plaintiff's status as an independent contractor. TMIC also asserted that the trial court lacked subject matter jurisdiction over the proceeding pursuant to terms contained in the TMIC policy. On March 14, 2014, Moriah filed a cross-claim against TMIC seeking reimbursement for attorney fees and costs incurred in the defense of the matter, as well as for reimbursement of any benefits paid to the plaintiff by Moriah.2
The matter was tried on November 12, 2014. The only witnesses called to testify live at trial were the plaintiff and Mr. Morgan, on behalf of Moriah. Issues presented for the WCJ's consideration included (1) whether the plaintiff was an employee of Moriah; (2) whether an accident occurred; (3) whether the plaintiff sustained a perivascular or “traditional” injury; and (4) whether the WCJ had subject matter jurisdiction over the claims against TMIC.
In a judgment signed on January 13, 2015, the WCJ found that the plaintiff was an employee of Moriah, who had sustained an injury as the result of the “physical trauma of acute bruising ” that arose out of and occurred in the course of his employment with Moriah. The WCJ further found that both the accident and injury sustained were “traditional” workers' compensation accidents and injuries; therefore, the injury was not a perivascular injury covered under La. R.S. 23:1021(8)(e). However, the WCJ additionally found that even if La. R.S. 23:1021(8)(e) was determined to be applicable, the WCJ would have found that the plaintiff carried his burden of proving that the “physical work stress” caused his perivascular injury.
The WCJ cast Moriah in judgment for indemnity, medical benefits and expenses, penalties and attorney fees for its failure to timely pay indemnity and medical benefits under La. R.S. 23:1201(B) and 23:1201(E), and all costs associated with the proceedings.
On the issue of subject matter jurisdiction over the claims against TMIC by Moriah, the WCJ held that it did not have subject matter jurisdiction over Moriah's claim against TMIC for reimbursement of workers' compensation benefits and dismissed Moriah's claim against TMIC with prejudice.3 The WCJ found that the TMIC policy at issue was a reimbursement policy, wherein the scope and nature of coverage was governed by Texas law; therefore, questions regarding liability under the policy and applicability of the policy to the plaintiff's claims were for a Texas court to determine under Texas law.
Moriah appeals the judgment of the WCJ.
Moriah filed the instant appeal asserting four assignments of error to the WCJ's judgment. First, Moriah avers that the...
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