rig

By Sean McLaughlin

The 5th Circuit issued a decision this week addressing an employer’s liability for benefits under the LHWCA to an employee who was allegedly injured while working.  Although the end result was employer-friendly, it took numerous appeals for the employer to obtain it.  Although some language suggests the plaintiff also filed a separate tort suit, this decision is solely about his entitlement to LHWCA benefits.  BIS Salamis, Inc. et al v. Director, Office of Workers’ Compensation Programs, United States Department of Labor et al, No. 15-60148 (5th Cir. March 17, 2016).

In this case, the Plaintiff, Joseph Meeks, worked for BIS Salamis as an offshore sandblaster/painter.  The Plaintiff claimed that he injured his neck and back during a personnel back transfer from a platform to a vessel.  Exactly what occurred was disputed, but it appears that a personnel basket hit the vessel bulwarks while the Plaintiff was standing nearby.  When the personnel basket struck him, it caused the Plaintiff to “hit the deck with his feet,” “knock his teeth together,” and “hit his shoulder on the railing of the boat.”  Interestingly, immediately after the accident the Plaintiff stated that “he was all right.”  About 30 minutes later, the Plaintiff claimed that he felt pain in his lower back, neck, and mouth.  Thereafter, he was examined by a company physician who diagnosed him with a back strain.  The doctor noted degenerative problems in Plaintiff’s neck and back, but released him to light duty work within a week of the accident.  The Plaintiff continued to treat with the doctor, who then released him to regular duty within another two weeks.

The Plaintiff claimed that he continued to have back and neck pain, retained an attorney, and started to treat with a doctor his lawyer recommended.  That doctor eventually performed surgery on his lower back, opined that surgery may be needed on his neck, and opined that Plaintiff could never return to work.  BIS Salimis obtained surveillance on Plaintiff showing that he was quite capable of doing work.  When they deposed the plaintiff, he denied his ability to perform the tasks he was videotaped performing.  BIS Salimis denied benefits.

The ALJ (Administrative Law Judge) agreed with BIS Salimis that Plaintiff’s back and neck complaints were not related to his personnel basket accident, finding that the plaintiff had no credibility.  The BRB (Benefits Review Board) reversed and remanded back to the ALJ, finding that the ALJ’s ruling was unsupported by the evidence.  After remand, the ALJ against ruled in favor of BIS Salimis.  The BRB reversed a second time, again claiming that the ALJ’s ruling was not supported by the evidence.  BIS Salimis then appealed the BRB’s decision to the 5th Circuit.  The 5th Circuit reversed the BRB’s decision and re-instated the ALJ’s denial of benefits.  Their decision contains a very good discussion of the presumptions that exist under the LHWCA in favor of an injured worker, and shows under what circumstances the employer can overcome them.