In a newly-published decision, the Fifth Circuit Court of Appeals in BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks, No. 15-60148 reversed the Benefits Review Board’s determination that Claimant had successfully established a prima facie case of compensability under Section 20(a) of the LHWCA as to certain injuries.  In April 2009, Claimant was involved in an incident where he alleged a low back injury, a neck injury, and a missing tooth following an offshore personnel basket transfer.  All parties agreed there was an incident, but the nature and extent of injuries were disputed, as Claimant had significant pre-existing degenerative issues in his neck and lower back.  Claimant underwent low back surgery and received a recommendation for neck surgery. Claimant visited a dentist on one occasion for his missing tooth.

 

At formal hearing, ALJ Rosenow determined that Claimant lacked credibility for a number of reasons, including Claimant’s filing of falsified tax returns, the existence of surveillance contradicting his sworn testimony, and Claimant’s withholding information to mislead his doctors.  Because Claimant failed to “create any confidence in the accuracy of his testimony or even his motivation to at least attempt to tell the truth,” the ALJ denied benefits.  The Benefits Review Board reversed this decision, holding that the ALJ failed to address whether Claimant had the presumption of compensability under Section 20(a).

 

On first remand, the ALJ again emphasized that Claimant was so dishonest and unreliable that any medical testimony that relied on Claimant’s subjective history of injury was not credible.  The ALJ concluded that because the weight of Claimant’s medical evidence relied on his subjective history, that his medical evidence was insufficient to establish a prima facie case of harm.  Therefore, the ALJ held that Claimant had not met his burden under Section 20(a).

 

In its second opinion, the BRB again reversed.  The BRB held that not only had Claimant met the Section 20(a) presumption, but went further in its analysis, holding that the Employer failed to present any evidence to rebut the presumption.  The BRB remanded strictly for the purpose of determining Claimant’s average weekly wage.  In a dissent, Judge Boggs agreed that Claimant had met his burden under Section 20(a), but indicated that the proper procedural action was to remand to the ALJ for determination of whether the employer presented substantial evidence to rebut the Section 20(a) presumption.  On second remand, parties agreed to an AWW, and the BRB affirmed, extending a final and appealable order pursuant to Section 21(c).

 

The Fifth Circuit reversed the BRB and ordered reinstatement of ALJ Rosenow’s order on first remand.  The Fifth Circuit confirmed that credibility can be taken into account in the first step of the 20(a) presumption analysis.  The ALJ and not the BRB must weigh the evidence,  and ALJ Rosenow had determined that the medical records in Claimant’s favor were based solely on his subjective complaints.  Because Claimant had no credibility, the medical causation opinions also lacked credibility.  Claimant therefore failed to demonstrate that he suffered a harm and could not meet the requirements under Section 20(a) as to his neck and low back.  However, the Fifth Circuit affirmed the BRB’s determination that the ALJ’s denial of Claimant’s missing tooth was irrational and unsupported by substantial evidence.

 

BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks