Compensation Claim Under the Longshore Act Denied for Lack of Causation
Franke and Salloum Partner, Paul Howell, recently obtained a decision from an administrative law judge under the Longshore Act denying benefits for an alleged cumulative trauma injury to the knees. This case shows how to rebut the presumption of compensability in such cases and goes on to state that, even if the claim had been compensable, it should be denied under the rarely used statute of limitations and notice provisions of the Act. In so finding, the judge concluded that the employer did not have knowledge of the knee injuries since the claimant filed a simultaneous claim for the knee injuries under her non-occupational group insurance. Finally, the judge made the rare finding that the employer was prejudiced by the late notice since the employer was unable to obtain a second opinion as to the need for surgery since the claimant went forward with an unauthorized surgery before giving notice. Click the link below to view the Court’s Decision and Order.
The attorneys and staff of Franke & Salloum worked together to provide Christmas gifts to those in need through the Gulf Coast Center for Nonviolence, an organization that does great work in our community. www.gccfn.org
Congratulations to Paul Howell!
Paul B. Howell, of Franke & Salloum, PLLC, was recently elected to the Board of Directors of the Department of Labor – Joint Bar Association. Mr. Howell was elected to a two-year term to represent the defense bar on the board. The Department of Labor – Joint Bar Association is an organization of attorneys who represent parties in cases administered by the U.S. Department of Labor including those representing parties in cases arising under the Longshore & Harbor Workers’ Compensation Act and its extensions. The DOL Joint Bar Association discusses issues facing practitioners before the Department of Labor and/or the Office of Administrative Law Judges and makes suggestions for resolution of those issues..
Mr. Howell is a partner with the firm of Franke & Salloum, PLLC, in Gulfport, Mississippi. He has been practicing before the Department of Labor and/or the Office of Administrative Law Judges for 37 years. Paul has been a frequent lecturer at the Loyola Longshore Conference and was a contributor to The Longshore Textbook. He also serves on the Benefits Review Board Service Advisory Board. Paul Howell is one of the most knowledgeable attorneys in the country in practice before the Department of Labor and particularly under the Longshore Act. The firm is extremely proud of his accomplishments and of this great honor.
Congratulations to Donald Moore for his recent nomination to the College of Workers’ Compensation Lawyers. The College of Workers’ Compensation Lawyers was established to honor attorneys who have practiced 20 years or longer in the field of workers’ compensation in order to recognize the outstanding traits that they have developed representing plaintiffs, defendants, serving as judges, or acting for the benefit of all in education, overseeing agencies and developing legislation. Fellows display civility, stand out as models of professionalism to younger attorneys and they are recognized as students of the law. For more information about the College see https://www.cwclawyers.org/.
Donald’s election as a Fellow of the College represents recognition by his colleagues that he has distinguished himself as an outstanding professional who has made a sustained contribution to the field of workers’ compensation. Inclusion into the College recognizes lawyers’ high standards of integrity, professionalism and character. Donald will be inducted on March 16, 2019 in Coral Gables, Florida.
Since joining Franke & Salloum in 1991, Donald’s practice has focused exclusively on the defense of workers’ compensation claims, both state and federal. For the last 15 years, Donald has also been a mediator of workers’ compensation matters. He has been recognized by his peers for his objectivity and ability to help resolve conflicts between parties.
Several years ago the staff of Franke & Salloum participated in “Jeans for Genes Day” to raise funds and awareness for the Cystic Fibrosis Foundation. Since that time we have continued “Jeans for a Cause” and our staff has raised over $20,000 by simply making a contribution to be able to wear jeans on Fridays. That money has been donated to dozens of local organizations over the years including: Veterans Outreach of Mississippi; Gulf Coast Women’s Center for Non Violence; American Heart Association; multiple humane societies and animal rescue groups; St. Jude’s; Backpack Buddies; American Foundation for Suicide Prevention; Project Sweet Peas; Juvenile Diabetes Research Foundation and many small local charities, to name a few. The staff plans to continue wearing jeans on Fridays and doing their part to make a difference.
Howell Gives Presentation to National Workers’ Compensation Conference.
On March 16, 2018, Franke & Salloum member Paul B. Howell gave a presentation at the Loyola University Annual Longshore and Harbor Workers’ Compensation Act Conference in New Orleans, Louisiana. This Act applies to maritime workers who are injured in the course and scope of their employment on the waterfront. Mr. Howell spoke on the issue of whether the § 20 presumption that maritime claims are compensable applies to secondary injuries. This is the largest longshore conference in the country. Paul Howell has been invited to speak at the conference several times in the past. The firm is considered to be one of the leading experts in the defense of claims under the Longshore Act. Click here for the full story.
Franke and Salloum was recently a key sponsor of the 2018 Mississippi Workers’ Compensation Educational Association Conference. The conference was well attended here on the Mississippi Gulf Coast and Donald Moore and Nathan Burrow represented the firm. The three day conference covers numerous topics concerning workers’ compensation professionals from adjusters, nurse case managers, physicians and legal professionals. It includes several social activities that allow all attendees to mingle with the Workers’ Compensation Commissioners, Judges and even Appellate Court Judges in attendance. The firm is a leader in the defense of workers’ compensation claims handling many significant cases. Numerous attorneys with Franke and Salloum practice before the MWCC.
Giving Back to the Community.
The members and staff of Franke & Salloum recently adopted a family from a local domestic abuse shelter for the Christmas holiday. In addition to other charitable endeavors throughout the year, the firm is particularly pleased to be able to show the true spirit of Christmas and have a personal impact by helping those in need during this holiday season. The gifts were from special “wish lists” submitted by the shelter family members and will be delivered to the shelter staff for distribution.
Donald Moore was recently appointed to the Mississippi Coast Coliseum Commission, the body designated by state statute to oversee the Mississippi Coast Coliseum and Convention Center. The commission is a political subdivision of the state of Mississippi and has jurisdiction and authority over matters relating to promoting, developing, maintaining and operating the multi-purpose coliseum and related facilities within Harrison County. Donald was appointed by the mayors of the cities located in the western Harrison County judicial district, Pass Christian, Long Beach and Gulfport. The Mississippi Coast Coliseum, built 40 years ago, is a multi-purpose facility that has hosted concerts, circuses and festivals. The coliseum is complimented by thousands of square feet of convention space and it has been a benefit for the economy of the Mississippi Gulf Coast since it opened.
Congratulations to Super Lawyers Richard Salloum and Nathan Burrow!
Once again founding member Richard Salloum has been included in the latest edition of the Mid-South Super Lawyers. Richard Salloum was listed as a Super Lawyer under the Personal Injury General: Defense section. His practice focuses on major personal injury and commercial litigation, maritime law and Longshore claims. He has been selected as a Mid-South Super Lawyer for the past nine consecutive years.
Nathan Burrow was again listed as a Rising Star under Civil Litigation: Defense. Nathan, who is admitted in both Mississippi and Alabama has a growing practice in the defense of personal injury, commercial and workers’ compensation claims.
Attorney Richard Salloum
Attorney Nathan Burrow
Win For the Defense. Member Fred Feeney once again successfully obtained another defense verdict on behalf of a major area hospital following a bench trial in Harrison County Circuit Court. In a case involving a patient fall and allegations of improper care after the fall, the Court concluded that the Plaintiffs failed to establish any negligence or fault of the hospital, and determined that the Defense established that the hospital met the standard of care in its evaluation and treatment of the patient and appropriately implemented and adhered to its policies and procedures for fall risk assessment and found that the appropriate safety interventions were in place throughout the patient’s stay. The Court also found persuasive the hospital’s expert neurologist’s testimony that the patient’s injury was the unavoidable consequence of an underlying illness and unrelated to the fall or any fault of the hospital, which evidence the Plaintiffs failed to overcome. Click here to review the Court’s Judgment. The Defendant was represented at trial by Franke & Salloum attorneys Fred Feeney and Shellye McDonald.
Attorneys Fred Feeney and Nathan Burrow recently successfully defended a negligence lawsuit filed against a local power company in Jackson County Circuit Court. The plaintiff, a field service technician for an equipment supplier, sustained a hydraulic fluid injection injury while attempting to clear a clogged high-pressure line on one of the company’s bucket trucks. His lawsuit alleged the company negligently trained its employees and failed to provide him with a safe place to work. The plaintiff’s negligent training claim was dismissed on summary judgment. The case proceeded to trial before a Jackson County jury on the remaining claims. After the Plaintiff rested his case, the Circuit Judge granted the defendant’s motion for directed verdict on the remaining negligence claims after finding that the plaintiff had failed to establish that the company and its employees owed him a legal duty. Click the links below to view the Court’s Order Granting Partial Summary Judgment and Order Granting Motion for Directed Verdict.
Paul M. Franke, Jr. was recently inducted into the Mississippi Workers’ Compensation Hall of Fame and was honored at a ceremony at the Mississippi Workers’ Compensation Commission. A Mississippi Workers’ Compensation Hall of Fame was created to honor individuals who devoted a substantial portion of their careers to workers’ compensation issues in Mississippi.
The Mississippi Workers’ Compensation Educational Association, Inc. (MWCEA) began honoring Hall of Fame inductees in 2015. Paul Franke was one of nine 2016 inductees nominated by his peers and selected by the MWCEA. Congratulations to Paul Franke on receiving this recognition.
Another victory for the defense! Firm member Fred Feeney recently received a very favorable verdict on behalf of a major hospital following a non-jury trial in December 2015. In its Judgment, the Court ruled that the hospital was not negligent and that its physician did not breach the standard of care. The Court specifically held that the Plaintiff had failed to establish negligence by a preponderance of the evidence and that “the Defendant’s expert had the greater training, experience, credibility, and, barring any other evidence, the Plaintiff’s expert failed to provide sufficient expert testimony to support [the Plaintiff’s] case. A Final Judgment was entered on July 12, 2016, in favor of the Defendant and the appeal time has now run. Click here to access the Court’s Judgment including Findings of Fact and Conclusions of Law. The Defendant was represented by Franke & Salloum, PLLC attorneys Fred Feeney and Shellye McDonald.
Summary Judgment Granted. Case Dismissed! Firm member Fred Feeney recently was successful in obtaining summary judgment on behalf of a major Gulf Coast hospital in the Circuit Court of Harrison County, Mississippi. The Court granted summary judgment on issues of premises liability and products liability claims brought by a plaintiff who had eloped from a medical facility in the middle of the night and had been injured in the process. The Court had previously dismissed the Plaintiff’s claims of medical malpractice. Click the links to access the Court’s Order Granting Summary Judgment and Final Judgment of Dismissal and the Court’s previous Order granting the Motion for Partial Summary Judgment. The Defendant is represented by attorneys Fred Feeney and Shellye McDonald.
Congratulations to Fred Feeney! Firm member Fred Feeney was recently elected to membership in the American Board of Trial Advocates (ABOTA) and the Mississippi chapter of ABOTA. The American Board of Trial Advocates is an invitation only organization consisting of more than 7,500 trial lawyers representing both the plaintiff and defense bars as well as judges in all 50 states, the District of Columbia and Puerto Rico. ABOTA’s primary mission has been the preservation of the right to a civil jury trial as guaranteed by the Seventh Amendment to U.S. Constitution.
Super Lawyers! Founding member Richard Salloum and attorney Nathan Burrow were recently included in the 2016 edition of the Mid-South Super Lawyers. Richard Salloum, whose practice focuses on major personal injury and commercial litigation, maritime law and Longshore claims, was listed under Personal Injury: General Defense. Nathan Burrow, who primarily works in the defense of personal injury and workers’ compensation claims, was listed under Civil Litigation: Defense. Congratulations to these Super Lawyers.
Founding member Paul M. Franke, Jr. was recently honored by the Mississippi Bar Association as one of a group of lawyers who had been admitted to the practice law for 50 years. The Resolution from the bar recognized that “this is an admirable achievement because these individuals have endured in a profession which not only demands the highest standards of ethical conduct, but also demands that individuals adapt readily to the constant changes in the Law and its practice.” Mr. Franke and his colleagues were recognized for this distinction at the annual Mississippi Bar Association convention held in Destin, Florida in July.
Franke & Salloum, PLLC attorney Nathan Burrow was recently a presenter at a seminar sponsored by the National Business Institute entitled Advanced Workers’ Compensation. The seminar, which was conducted July 19, 2016, in Gulfport, Mississippi, was attended by attorneys, insurance adjusters and managers and other professionals in the human resources and workers’ compensation fields. Mr. Burrow presented topics including causal relationship and apportionment as well as ethical obligations in the handling of workers’ compensation claims.
Nathan Burrow was recently a presenter at Sterling Educational Services’ continuing education seminar Fundamentals of Workers’ Compensation on January 28, 2016 in Biloxi, MS. Nathan provided an overview of the Mississippi Workers’ Compensation Act and also discussed recent case law and legislative changes to the Act.
Attorneys Fred Feeney and Nathan Burrow recently obtained dismissal of a personal injury lawsuit based upon intentional misrepresentations made by the plaintiff in her discovery responses and deposition. Fred and Nathan were able to demonstrate to the Court that the plaintiff materially misrepresented her medical history and criminal record, and that her misrepresentations were sufficiently willful to warrant dismissal under Rule 37 of the Mississippi Rules of Civil Procedure. Click here to view the Court’s opinion.
The firm is proud to announce that it is a key sponsor for the upcoming Mississippi Workers’ Compensation Educational Association Conference (MWCEA). The 2016 MWCEA Conference will be held on April 13 through 15, 2016 at the Beau Rivage Resort in Biloxi, Mississippi. The event hosts one of the largest gathering of employers, insurers, TPA’s, claims adjusters, legal professionals, health care professionals, rehabilitation providers and others involved in the workers’ compensation field in Mississippi.
Franke & Salloum, PLLC is pleased to announce that Donald Moore will be a speaker at the upcoming Mississippi Workers’ Compensation Educational Association Conference (to be held at the Beau Rivage) on April 13 through 15, 2016. Donald and Tommy Dulin of Dulin & Dulin will be presenting a program on mediation in workers’ compensation claims. Donald has mediating hundreds of workers’ compensation claims as part of the pilot mediation project of the workers’ compensation section of the Mississippi Bar. Donald has been an approved mediator for more than a decade.
Representing a major gulf coast medical center and a general surgeon, Franke & Salloum, PLLC attorney Shellye McDonald was successful in obtaining Summary Judgment and dismissal of all claims of medical malpractice and wrongful death resulting from an alleged delay of abdominal surgery for removal of a medical device and abdominal repair. In support of the Motion, the Defendant’s expert opined that the patient’s complication and death was a consequence of the end stage of a known underlying terminal illness and not any alleged delay in the procedure. The Court found that the Plaintiff’s expert did not have the needed credentials to determine when to perform surgery and therefore was not qualified to offer expert testimony to support the Plaintiff’s claims against the hospital and surgeon. The Court granted the hospital’s Motion to strike the expert witness and exclude his testimony and further granted the hospital’s Motion for Summary Judgment. Click here to access the Order granting the Motion entered by Harrison County Circuit Court Judge. The Plaintiff has filed an appeal of the Circuit Court’s ruling. The Defendants are represented by Franke & Salloum, PLLC attorneys Shellye McDonald and Fred Feeney.
The firm would like to congratulate Richard Salloum on his selection as a 2015 Mid-South Super Lawyer. This marks the tenth consecutive year that Richard has been listed by the publication. It is a great honor for Richard and the firm.
Attorneys Fred Feeney and Nathan Burrow were successful in obtaining summary judgment on behalf of a local industrial client that had been accused of intentionally killing an employee allegedly in retaliation for his efforts to unionize the company. The plaintiff filed a wrongful death claim against the company in federal court alleging that the employee’s supervisor authorized the activation of an industrial screw conveyor with knowledge that the employee was still inside the piece of machinery. Fred and Nathan were successful in demonstrating that there was no genuine issue of material fact as to the company’s alleged intent to injure the employee, that the Mississippi Workers’ Compensation Act provided the plaintiff’s exclusive remedy for the employee’s death, and that the company was therefore entitled to tort immunity under the Act. Click here to read the opinion.
Franke & Salloum, PLLC is pleased to announce that founding member Paul M. Franke, Jr. was among five attorneys selected to receive an Honorary Master of Laws degree from the Mississippi College School of Law. Mr. Franke was selected based on his distinguished service, professional accomplishments and his service to his community. The honor was conferred during a luncheon ceremony held at the law school on Wednesday, November 14, 2012. Mr. Franke began his law studies at the University of Mississippi School of Law and received his law degree from Mississippi College School of Law in 1966. He currently manages the Workers’ Compensation section of Franke & Salloum, PLLC.
On September 4, 2012, the United States Court of Appeals for the Fifth Circuit in Case 11- 60833, affirmed the District Court’s dismissal of a worker’s claims of serious personal injury due to an explosion aboard the tug ACHIEVEMENT allegedly as a result of negligent training, hiring and retention of a borrowed employee.
In Ates v. B&D Contracting, Inc., No. 1:10cv272-HSO-JMR, Richard P. Salloum secured the District Court’s grant of summary judgment on behalf the firm’s client, B&D Contracting, Inc., a labor personnel contractor, and subsequently, the Fifth Circuit Court of Appeals affirmative decision, by successfully demonstrating the injured worker had failed to present any evidence of direct negligence in B&D’s hiring, retention and training of its employee.
As a result, on September 17, 2012, the District Court in companion case, Nettles v. Masse Contracting Inc. and B&D Contracting, Inc., No. 1:10-cv-271-LG-RHW, followed suit and dismissed this case alleging the same causes of action by another worker injured in the same explosion, finding the Plaintiff had failed to demonstrate any negligence on the part of Defendant B&D. Once again, Mr. Salloum was able to secure the District Court’s dismissal and grant of summary judgment on behalf of his client, B&D Contracting, Inc.
Recently, in a case involving contested jurisdiction under the Longshore and Harbor Workers’ Compensation Act, Donald P. Moore was successful in obtaining a summary decision from the Office of Administrative Law Judge dismissing the claim of Armilla Collins against Huntington Ingalls Incorporated. Collins, a clerk in the reprographics department of the Employer, alleged a bilateral carpal tunnel injury. Rather than filing a claim under the state workers’ compensation act, claimant alleged that her employment with Ingalls met both situs and status, contending that her job duties were a “necessary, essential, and integral” part of the shipbuilding process with Ingalls. Claimant specifically contended that she was involved in the printing and binding of blueprints used in the shipbuilding process.
Ingalls challenged both situs and status alleging that claimant’s work was performed in a non-maritime are and contending that her work was clerical in nature and was not an integral part of the shipbuilding process. After performing an investigation that included meeting with witnesses and site inspection and photographs, Donald P. Moore filed a Motion for Summary Decision with supporting affidavits and documents. Claimant opposed the Motion for Summary Decision. After considering the witness testimony (through deposition and affidavit) and the documents submitted in support of the Motion for Summary Decision, the judge concluded that the claimant’s “job cannot be considered anything but clerical and falls into the exception for maritime employees”. The judge advised that the claimant failed to meet the jurisdictional status requirements of the LHWCA and he dismissed her claim with prejudice.
The firm obtained a victory for a local shipbuilding company in the case of Osprey Ship Management, Inc., et al vs. Northrop Grumman Ship Systems, Inc., et al. The case was filed pursuant to 28 U.S.C. § 1333 seeking damages arising out of an allision involving Plaintiffs’ vessel, the M/V AMERICAN CORMORANT. Richard P. Salloum represented Northrop Grumman Ship Systems in the case at trial. On September 18, 2008, United States District Judge Halil S. Ozerden rendered his opinion in this case dismissing Northrop Grumman Ship Systems, Inc. from the case with prejudice. The dismissal was affirmed by the U. S. Fifth Circuit Court of Appeals. Click here to read the opinion in its entirety.
If you would like to speak with Richard Salloum about this decision or have a case involving similar issues, email him at [email protected].
The firm was recently successful in having a case against a government contractor which had been sued for claims arising out of storm debris removal in the clean-up of the Mississippi Gulf Coast following Hurricane Katrina dismissed. Finding that it lacked subject matter jurisdiction, the United States District Court, for the Southern District of Mississippi, granted the defendant’s Motion to Dismiss based upon derivative governmental immunity and the provisions of the Federal Tort Claims Act. Click here to read the opinion in its entirety.
In Daniel Bacon v. Northrop Grumman Ship Systems, Inc., Paul B. Howell successfully defended Northrop Grumman in a workers’ compensation claim for nasopharyngeal cancer allegedly due to welding fume exposure. Click here to read the opinion in its entirety.
If you would like to speak with Paul Howell about this decision or have a case involving similar issues, email him at [email protected].
In Lamar Tate v. All Coast Intermodal Services, Inc., Donald P. Moore obtained a rare decision for the client, All Coastal Intermodal Services (ACIS). ACIS is a trucking company that contracts with various agents who then contract with owners/operators of trucks for transportation of cargo. Claimant was injured while driving a truck owned by another individual, Charlie Reeves. Claimant contended that ACIS was his employer alleging that ACIS had direct control over him, had the right to hire and fire him and alleging that he was paid ACIS.
The Administrative Judge applied the various factors enunciated by the Mississippi Supreme Court to determine whether a person is an employee or an independent contractor and determined that the factors weighed in favor of ACIS and that claimant was not their employee. (See the Decision and Order for application of the factors to this claim.) Click here to read the opinion in its entirety.
The Decision was not appealed.
If you would like to speak with Donald P. Moore about this decision or have a case involving similar issues, email him at [email protected].
In Kenneth Craven v. Northrop Grumman Ship Systems, Inc., Paul B. Howell was successful in having a Longshore claim for substantial attorney fees denied due to the claimant’s attorney’s failure to comply with the strict requirements of 33 U.S.C. § 928(b). Click here to read the opinion in its entirety.
If you would like to speak with Paul Howell about this decision or have a case involving similar issues, email him at [email protected].
In the case of Willie James Jones v. Northrop Grumman Ship Systems, Inc., Paul B. Howell successfully defeated a Northrop Grumman Ship Systems supervisor’s claim for permanent and total disability after the claimant was offered a modified position which he refused. Click here to read the opinion in its entirety.
If you would like to speak with Paul Howell about this decision or have a case involving similar issues, email him at [email protected]
In McDonald v. Memorial Hospital at Gulfport, 8 So.3d 175 (Miss. 2009), Shellye McDonald successfully represented Memorial Hospital at Gulfport at the trial court level and the appellate level following dismissal of this suit by the Circuit Court. The Mississippi Supreme Court affirmed the trial court’s grant of summary judgment and held that Plaintiff’s claim for medical malpractice and wrongful death must be supported by competent expert testimony not only identifying and articulating the requisite standard of care, but also establishing that the failure to comply with the standard of care was the proximate cause, or proximate contributing cause of the Plaintiff’s alleged injuries. The Court held that the trial judge did not err in finding that there was no genuine issue of material fact as to causation and thus, summary judgment in favor of Memorial Hospital was proper where Plaintiff’s expert was not competent to address medical causation. Click here to read the opinion in its entirety.
If you would like to speak with Shellye McDonald about this decision or have a case involving similar issues, email her at [email protected].