A technician spent 10 hours working on a cell tower, sitting on a small pipe with his legs wrapped around it to secure him. The worker developed a pulmonary embolism which doctors say was likely caused by extended periods of sitting. Was this injury covered by workers’ comp?
Adam O’Bannon worked as a technician and crew leader for Moriah Technologies Inc. of Louisiana, a company that provides installation services in the cellular telephone tower industry.
On June 2, 2012, O’Bannon spent about 10 hours on a tower in Napoleonville, LA, with his legs wrapped around a pipe. Later that day, O’Bannon also drove for four hours for business purposes.
The next day, O’Bannon noticed bruises on the back of his thighs. On June 17, 2012, he sought treatment for rib pain in an ER.
On June 22, 2012, O’Bannon went to an urgent care clinic complaining of chest pain and difficulty breathing. Tests uncovered presence of a blood clot. O’Bannon had a pulmonary embolism (blockage in one of the pulmonary arteries in the lungs, caused in most cases by blood clots that travel from the legs to the lungs) and was hospitalized. Later he had surgery after fluid built up in his lungs.
O’Bannon filed a workers’ comp claim. Moriah’s workers’ comp insurer denied the claim on the grounds that he didn’t suffer an injury in the course and scope of his employment, rather he suffered from an “ordinary disease of life.” O’Bannon filed a disputed claim with the Louisiana Office of Workers’ Compensation.
The OWC ordered Moriah to provide O’Bannon with workers’ comp benefits. The company appealed to a state court.
Employee or independent contractor?
On the day O’Bannon was hired, Randall Morgan, president of Moriah, gave the new worker an independent contractor agreement. O’Bannon never returned a signed copy of the agreement.
That much O’Bannon and Moriah agree on. Despite the lack of a signed agreement, the company still claimed O’Bannon was a contract worker, and that was one reason why he shouldn’t receive workers’ comp benefits. O’Bannon argued he was an employee.
The state appeals court noted that a signed agreement isn’t required to establish a contractor relationship. Among the other factors the court noted:
- O’Bannon said he got his work assignments from customers (one of which was AT&T) when working jobs, but ultimately got approval and direction from Moriah before going to any job site
- Moriah told O’Bannon to go to various places to pick up equipment
- O’Bannon communicated with Morgan regularly, sometimes several times a day
- Despite having supervisory duties, O’Bannon didn’t have the power to hire and fire crew members he worked with
- Moriah says it didn’t control the method and manner O’Bannon used to perform his job as crew leader
- Morgan denied ever directing O’Bannon’s day-to-day duties, and
- O’Bannon was paid by the hour.
The appeals court noted there was “conflicting testimony” about whether O’Bannon was an employee or contractor, but based on the evidence, it found no reason to reverse the OWC’s decision that O’Bannon was an employee.
Moriah offered another reason to deny O’Bannon coverage: It argued his injury wasn’t a traditional accident as defined by Louisiana’s workers’ comp law. Rather, it was a perivascular (involving blood vessels), therefore a higher level of proof was required that the injury was work-related.
But the appeals court noted that in cases where a perivascular injury is the direct result from physical impact that arises out of and in the court and scope of employment, the workers’ comp claim is handled as any other physical injury is.
O’Bannon’s hospital discharge records say the “likely cause” of his pulmonary embolism was recent extended periods of sitting on a very narrow metal pipe.
The court found the medical records and depositions from O’Bannon’s treating physicians supported the claim that his injury was work-related. The court wrote:
“Based on the above testimony and medical evidence submitted, we can find no manifest error in the [workers’ comp judge’s] finding that the plaintiff sustained an accident due to the physical trauma of sitting on a small pipe for extended periods.”
O’Bannon should receive workers’ comp benefits, the court wrote.
What do you think about the decision in this case? Let us know in the comments.
(O’Bannon v. Moriah Technologies Inc., Court of Appeals of Louisiana, No. 2015 CA 1460, 6/3/16)
