BIS Salamis, Inc. v. Director, Office of Workers' Compensation Programs

819 F.3d 116, 2016 A.M.C. 1423, 2016 WL 1077125, 2016 U.S. App. LEXIS 4927
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 17, 2016
DocketNo. 15-60148
StatusPublished
Cited by10 cases

This text of 819 F.3d 116 (BIS Salamis, Inc. v. Director, Office of Workers' Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BIS Salamis, Inc. v. Director, Office of Workers' Compensation Programs, 819 F.3d 116, 2016 A.M.C. 1423, 2016 WL 1077125, 2016 U.S. App. LEXIS 4927 (5th Cir. 2016).

Opinion

HAYNES, Circuit Judge:

BIS Salamis, Inc. (“Salamjs”) and Signal Mutual Indemnity Association (collectively, “Petitioners”) appeal from the final order of the Benefits Review Board (the “Board”), which granted Joseph Meeks (“Meeks” or “Claimant”) benefits under the Longshore Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950.1 This case has a lengthy procedural history. Essentially, after two remands, the Board vacated the ALJ’s findings in favor of Petitioners, reversed the ALJ’s decision, and rendered a decision in favor of Meeks. For the reasons that follow, we REVERSE in part the award of benefits to Meeks and REINSTATE the ALJ’s second order,..dated June 28, 2013 (“ALJ’s June 2013 Order”), except for the portion of that order denying Meeks’s dental costs for his loose and later missing tooth; as to [119]*119the loose/missing tooth, we AFFIRM the Board’s judgment.

I. Background

In 2009, Meeks worked briefly for Salamis as a sandblaster and painter on offshore rigs. He was involved in an offshore accident during that employment, which the parties agree places his claim within the bounds of the LHWCA. The parties dispute solely the . nature. and pxtent of Meeks’s injuries and whether the incident during Meeks’s employment with Salamis caused any compensable injury to Meeks.

A Factual Background

i. The Incident

On April 9, 2010, a short time after beginning work with Salamis, Meeks was being transferred with several other men from an oil rig to a vessel while attached to a personnel platform and basket (“personnel basket” or “basket”). Méeks claims the basket collided with the vessel near the bulwarks and bounced, knocking him and the other men off the platform on which they were standing and nearly throwing him overboard but for the intervention of one of the men. Meeks alleges he hit the deck on his feet, knocking his teeth together, and then hit his shoulder on the railing of the boat, or bulwark, as he fell'.2

Immediately after the incident, Meeks stated that he was all right. But he avers that within thirty minutes, he began to feel pain in ,his lower back, neck, and mouth. He alleged the same during his depositions, and that his mouth was bleeding and the accident knocked some teeth out. The ALJ apparently credited a statement from Meeks’s supervisor that Meeks told him shortly after the incident that Meeks had been “hurt before but ... never got anything for it.” When asked about this statement during the hearing before the ALJ, Meeks could not recall whether he had uttered it.

2. Emergency Care

Meeks filled out an accident report and was given a neck brace, attached to a spine board, and transported ashore in a helicopter. An ambulance ultimately took Meeks to Terrebonne General Medical Center (“Terrebonne”). The report from the ambulance' ride notes Meeks alleged pain to his lower back and neck and also listed injury to his “face and/or neck.”

Records from Meeks’s brief stay at Ter-rebonne do not indicate that Meeks reported any damage to his teeth or mouth, except a report to a company representative on April 10 that he thought he might have a loose tooth. The nursing assessment from his arrival at Terrebonne noted Meeks had a normal gait, with purposeful movement, no tenderness or paralysis, and a full range of motion in all his joints. Meeks reported falling and having “lower [120]*120back and neck pain,” according to the records. Reports from a CT scan and other evaluations observed no evidence of fractures or traumatic injuries in Meeks’s spine, but the scans detected “extensive degenerative changes” in both his cervical and lumbar spinal regions.

From his emergency stay, Meeks was diagnosed with a back sprain or strain. The report from that night noted “no acute distress” and “no evidence of trauma.” Meeks was discharged to Salamis, which put him up in a hotel and brought him to the company physician, Dr. Gidman, on April 13, 2009. Dr. Gidman had also performed pre-employment physicals on Meeks for Salamis.

3. Treatment with Dr. Gidman

Dr. Gidman evaluated Meeks based on Meeks’s complaints of neck, lower back, and right leg pain and found that while the lower back pain was severe, the neck symptoms were only moderate. Based on the April 10 x-rays and separate x-rays Dr. Gidman ordered, the doctor noted advanced degenerative changes in the cervical and the lumbar spine areas, plus moderate scoliosis in Meeks’s lumbar spine. Dr. Gidman found no fractures, Meeks reported to Dr. Gidman that he had not had similar problems in the past and had not seen any doctors, received treatment, or lost work for neck, lower back, or right leg problems. After performing a physical examination on Meeks, Dr. Gidman noted no tenderness to the touch, spasms, scars, scrapes, scratches, bruising or swelling in examining Meeks’s spine. He found Meeks had a normal gait and did not detect pain upon having Meeks perform straight-leg raises. Based on these findings, Dr. Gidman prescribed Vicodin for pain, muscle relaxers, and anti-inflammato-ries, and he instructed home therapies, of stretching, soaks, rubdowns, heating pad, and only light activities at on-shore work. Dr. Gidman released Meeks to light duty on April 13, 2009.

Meeks returned to Dr. Gidman on April 15, 2009, after performing light work in Salamis’s office on land, “complaining of stiffness in his neck and lower back” and “of a cramping and a sleep sensation” in his legs. Straight-leg raising tests were again negative for any symptoms of lower back pain. Dr. Gidman prescribed two days of physical therapy, rest during Meeks’s previously-scheduled week off, and a follow-up appointment on May 12, 2009. Dr. Gidman released Meeks to regular duty, to follow his time off.

Meeks attended physical therapy on April 16 and 17, 2009, as prescribed. Reports from therapy state that Meeks reported feeling better but still stiff in his neck and back, with sharp pain in his lower back. After Meeks’s weeklong break to rest, he returned to performing light duty, and then regular duty work, for Salamis. But Meeks allegedly continued to experience significant pain, so he stopped work and began reporting to Dr. Esses in Houston in May 2009, upon the recommendation of his attorney. In one of the many inconsistencies noted by the ALJ, Meeks admitted during the hearing that, when asked about it at his deposition, Meeks claimed not to remember who referred him to Dr. Esses. Meeks also admitted that on another occasion he had suggested that his daughter referred him to Dr. Esses.

4. Treatment with Dr. Um

In May 2009, Meeks visited Dr. Um, a dentist. Although Meeks’s complaints of pain following the incident mostly related to his back and neck, he told a company representative who interviewed him in the emergency room on April 10, 2009, that he thought he had a “loose tooth.” He [121]*121claimed later that his teeth had been jarred-together when he collided with the deck of the vessel. Meeks claims his tooth fell out, so he went to see Dr. Um on May 20, 2009. Dr. Um made a partial denture for the missing tooth and capped the others. . \ ,

5. Treatment with Doctors Esses and Dent

Dr.

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Bluebook (online)
819 F.3d 116, 2016 A.M.C. 1423, 2016 WL 1077125, 2016 U.S. App. LEXIS 4927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bis-salamis-inc-v-director-office-of-workers-compensation-programs-ca5-2016.