U.S. Department of Labor Office of Administrative Law Judges St. Tammany Courthouse Annex 428 E. Boston Street, 1st Floor Covington, LA  70433-2846 (985) 809-5173 (985) 893-7351 (Fax) Issue Date: 17 July 2008 CASE NO.:  2008-LDA-43 OWCP NO.: 02-162185 IN THE MATTER OF A. B.1, Claimant v. KBR GOVERNMENT OPERATIONS, Employer and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Carrier APPEARANCES: ` BARRY R. LERNER, ESQ. On behalf of Claimant JERRY R. MCKENNEY, ESQ. On behalf of Employer/Carrier BEFORE:    C. RICHARD AVERY Administrative Law Judge                                                  1 Pursuant to a policy decision of the Department of Labor, the Claimantfs initials rather than full name are used to limit the impact of the Internet posting of agency adjudicatory decisions for benefit claim programs.

 

- 2 - DECISION AND ORDER This   is   a   claim   for   benefits  under  the   Longshore   and   Harbor   Workersf Compensation Act, 33 U.S.C. 901 et. seq., (The Act), brought by Claimant against KBR Government Operations (Employer), and Insurance Company of the State of Pennsylvania    (Carrier).        The    formal    hearing    was    conducted    in    Shreveport, Louisiana on January 24, 2008.  Each party was represented by counsel, and each presented documentary evidence, examined and cross examined the witnesses, and made  oral  and  written  arguments.2    The  following  exhibits  were  received  into evidence:  Joint Exhibit 1, Claimantfs Exhibits 1-16  and Employerfs Exhibits 1-8, 11-13, 15-18, 20, and 24-34.  This decision is based on the entire record.3 Stipulations Prior  to  the  hearing,  the  parties  entered  into  joint  stipulations  of  facts  and issues which were submitted as follows: 1.   The date of the alleged injury/accident is May 15, 2007; 2.   An   employer/employee   relationship   existed   at   the   time   of   the   alleged injury/accident; 3.   Employer was advised of the alleged injury/accident on May 15, 2007; 4.   Notice of Controversion was filed August 22, 2007; and 5.    Recommendation  without  an  Informal  Conference  was  submitted  August 23, 2007.                                                  2 The parties were granted time post hearing to file briefs.    3 The following abbreviations will be used throughout this decision when citing evidence of record: Trial Transcript Pages- (Tr. __); Joint Exhibit- (JX __, pg.__); Employerfs Exhibit- (EX __, pg.__); and Claimantfs Exhibit- (CX __, pg.__).

 

- 3 - Issues The unresolved issues in this proceeding are: 1.   Causation; 2.   Average Weekly Wage; 3.   Nature and Extent of the disability; and 4.   Whether Claimant is entitled to Section 7 Medical Benefits. Statement of the Evidence Claimantfs Testimony Claimant  is 68  years  old.   He is a high  school graduate  with some  college experience.  For almost thirty years, from 1962 until 2000, he worked with Pacific Gas  and  Electric  until  he  retired  on  stress  disability.    He  receives  a  pension  and social security, and after retirement he owned a fiber optic company, drove a truck for Frito Lay, and drove a bus.  At age 66, after he passed the employment physical examination,  he  went  to  work  for  Employer  as  a  heavy  truck  driver  in  Iraq.    He worked seven day shifts for Employer. Claimant testified that he enjoyed working  for Employer  and had hoped to work  for  two  years  in  Iraq  and  use  the  money  he  earned  to  travel  with  his  wife.   However, five and a half months into his contract with Employer, Claimant stated that  while  in  a  convoy  driving  twenty-five  to  thirty  miles  an  hour  his truck  hit  a pothole, slamming him into the back of the seat and hurting his right shoulder and back. The accident was unwitnessed, and because he was in a moving convoy with radio silence, Claimant said he was unable to tell his supervisor about the event for some  eight  or  nine  hours.    Once  he  did,  however,  he  was  sent  to  Employerfs medical unit and given aspirin. He testified that Employerfs medical facility in Iraq was basically a first aid station and did not have the ability to perform MRIs or x- rays.

 

- 4 - In  the  two  weeks  that  followed,  Claimant  testified  he  got  progressively worse  and  visited  the  clinic  twice  more,  but  to  no  avail.    Claimant  continued  to work  full  time  for  Employer,  but  he  stated  that  he  was  not  put  on  any  convoys during those two weeks, and as such not much was required of him.  Claimant said that  at  one  point  the  medics  told  him  they  would  send  him  to  Kuwait  to  be  re- evaluated, but he was later told that his injury did not justify such a trip.   Because of  his  pain  and  lack  of  medical  attention,  Claimant  requested  to  return  to  the United States and did so on May 30, 2007.  A week later he hired his attorney, and after   failed   attempts   by   Dr.   Rangu,   his   family   doctor,   to   refer   Claimant   to   a specialist, Claimant went to a chiropractor, Dr. Baker, but got no relief.  Ultimately he went to a neurosurgeon, Dr. Chow.4 According to Claimant, an MRI revealed a bulging disc, and at Dr. Chowfs direction  he  has  been  in  physical  therapy  for  his  back,  but  he  has  received  no treatment  for  his  shoulder.    Claimant  testified  that  since  his  injury  he  has  been offered work with Frito Lay and would like to return to bus driving, but he cannot sit   for   long   periods   of   time   nor   can   he   do   any   lifting   because   of   his   back discomfort.  At the time of his testimony, he stated that he still experienced pain in his back and shoulder, but his knee was galright.h  Claimant has not had to pay any out-of-pocket expenses for the treatment he has received. Medical Evidence Claimantfs Pre-Deployment Physical Examination (EX-4) As  part  of  the  pre-deployment  physical  examination,  Claimant  filled  out  a medical  questionnaire  on  December  12,  2006  for  Employer.    Claimant  denied having any back, knee or other musculoskeletal problems.  He admitted to having difficulty  squatting  to  the  ground,  but  he  did  not  think  this  hurt  his  ability  to perform  the  job  for  Employer.    Claimant  underwent  a  physical  examination  the same day, during which the examiner observed that Claimantfs spine and shoulder were within normal limits, and that Claimant underwent surgery on his left knee in July of 2006.  (EX-4, pp. 2, 9-10).                                                  4 Despite  having  Blue  Cross  and  Medicare,  Claimant  testified  that  no  doctors  would  see  him  because  his  was  a workersf compensation injury in Iraq.

 

- 5 - Medical Records of Employerfs Clinic in Iraq (CX-4, CX-9, EX-5) Claimant presented to Employerfs Clinic on May 15, 2007 complaining of low back pain.  He told the medic that he injured his back when the truck he was driving hit a hole in the road.   He described his pain as across his back, down his spine and down his right leg, and he said he began feeling this pain immediately after his truck struck the pothole.  The medic concluded that Claimant had a lower back  strain,  and  he  recommended  that  Claimant  take  ibuprofen/motrin  and  apply alternating ice and heat to his back.  (EX-5, p. 7). Claimant returned to the Clinic on May 24, 2007.  Claimantfs back pain had continued since his first visit.  The medic diagnosed Claimant with a lumbar strain and   prescribed   more   motrin.      That   same   day,   Claimant   was   also   seen   by   a physicianfs assistant (PA) for a consultation.  The PA wrote that in addition to his injury while driving, Claimant had fallen and landed on his back a short time after his arrival in Iraq, and because of the pain this caused, his co-workers helped him load and unload when needed.  He stated he did not seek medical attention for this problem   because   he   was   scared   he   would   be   sent   home.      After   a   physical examination, the PA agreed with the medicfs diagnosis of a lumbar strain, and she recommended that Claimant continue taking motrin and seek further evaluation by a higher level of care.  She noted that Claimant stated he would be demobilizing in order to go home and see his regular doctor.  (EX-5, pp. 3, 5). The  final time Claimant went to Employerfs  Clinic was for demobilization clearance on May 26, 2007.  Claimant stated that the injuries he acquired during his May 15, 2007 driving incident continued to bother him.  He was experiencing pain across his low back and in his right knee cap.   Claimant was diagnosed with low  back  pain  and  right  knee  pain.    He  was  released  without  restrictions  and  no medication was administered.  (EX-5, pp. 1-2). Medical Records of Dr. Rangu (EX-12) Dr.   Rangu,   who   is   affiliated   with   the   Internal   Medicine   Association   of Longview, treated Claimant many times prior to his May 15, 2007 incident, and he was the first doctor Claimant saw when he returned from Iraq.5  On June 1, 2007, Claimant  presented  to  Dr.  Rangu  complaining  of  lower  back  pain,  which  had                                                  5 The earliest record of Claimant visiting Dr. Rangu is dated October 23, 2002.  (EX-12, p. 19).  In 2006, the year preceding Claimantfs employment with Employer, Dr. Rangu treated Claimant for chest pain and hypertension (EX- 12, pp. 21, 47-49, 51), problems relating to his left knee (EX-12, pp. 50, 55-56), swelling in his left ear (EX-12, p. 54), and general check-ups.  (EX-12, pp. 57-58).

 

- 6 - persisted for about three or four weeks, and knee problems, all stemming from an incident   in   Iraq.      The   rest   of   Dr.   Rangufs  notes  from  this  visit   are   illegible.   Claimant returned on August 2, 2007, complaining of an open wound in  his right leg that had lasted about a week with constant pain and throbbing.  Once again, Dr. Rangufs notes are illegible.    On August 8, 2007, Claimant again saw Dr. Rangu, and reported that his right leg was feeling much better; however Dr. Rangufs notes from  this  visit  are  also  illegible.    On  November  29,  2007,  Claimant  presented  to Dr.  Rangu  complaining that his  right  ear  tickled,  he had  pain in his left arm,  his ankles  were  very  tender,  and  he  was  having  numbness  in  his  right  leg  from  his knee to his hip.  Again, Dr. Rangufs notes concerning his prognosis and treatment of Claimant are illegible.  (EX-12, pp. 66-69). Deposition and Medical Records of Dr. John R. Baker (CX-14, EX-11, EX-25) Dr. Baker, a chiropractor, was deposed on January 18, 2008.  He stated that he  first  saw  Claimant  on  June  11,  2007.  Claimant  told  him  that  he  was  injured when the truck he  was  driving in  Iraq hit  a  large hole in the  road,  throwing  him upward  and  immediately  causing  pain  in  his  back  and  right  leg.    Claimant  was complaining of pain in his neck, mid-back, low back, right shoulder and right knee.   Dr.  Baker  obtained  x-rays of Claimantfs spine that same  day.  The  x-ray  of  the cervical spine showed dextrorotatory deviation and a complete loss of the normal lordotic curve, which Dr. Baker explained was not an unusual finding in vehicular- related    trauma.        The    x-ray   of   Claimantfs   thoracic   spine   revealed   some dextrorotatory    deviation    primarily    in    the    mid-thoracic    region,    evidence    of osteophytic   formations   projecting   laterally,   loss   of   normal   thoracic   alignment, osteoarthritic spur formations, and a relative decrease in mineralization.  Dr. Baker believed this constituted osteopenia. As for Claimantfs lumbar spine, the x-rays demonstrated   subtle   dextrorotatory   deviation   of   the   lumbar   spine   and   some osteophytic formations projecting laterally.  (CX-12, p. 2; CX-14, pp. 7, 9; EX-25, pp. 19, 30). After  performing  a  physical  examination,  Dr.  Baker   diagnosed  Claimant with sprains or strains in the cervical, thoracic, and lumbar regions, lumbalgia, and lumbar  radiculopathy.    He  concluded  that  his  objective  findings  were  consistent with Claimantfs history and subjective complaints.   Dr. Baker  recommended that Claimant undergo a diagnostic work-up to make sure that his treatment would not cause further injury.  (CX-14, p 10; EX-25, p. 33).

 

- 7 - Claimant  returned  to  see  Dr.  Baker  the  following  day,  June  12,  2007  and continued  to  see  Claimant  almost  daily  until  July  6,  2007.     He  could  not  say whether  Claimant  made  any  progress  from  these  sessions  or  whether  any  of  his treatment   actually   helped.      He   explained   that   the   treatment   he   rendered   was necessarily extremely conservative since he did not have any diagnostic imaging to get a clearer picture of Claimantfs problem.  (CX-14, pp. 11-13). Dr.  Baker  did  not  see  Claimant  again  until  about  three  months  later,  on October  2,  2007.    He  could  not  explain  this  gap   in  treatment.     At  this  visit, Claimant reported that his pain had increased, especially in his right shoulder.  Dr. Baker performed a physical examination of Claimantfs shoulder and back, which he  opined indicated a  rotator cuff  injury in Claimantfs shoulder  and a displaced disc  or  disc  lesion  in  his  lumbar  spine.    Dr.  Baker  recommended  an  MRI  and possibly a lumbar myelogram and EMG to confirm or deny these indications, but he  noted  that  no  such  tests  were  being  authorized  by  Employer/Carrier.    As  a result, Claimant also could not follow through on Dr. Bakerfs recommendations that he see an orthopedic surgeon for his shoulder and a neurosurgeon for his neck and back, because these physicians generally require MRIs of the areas in question before an initial evaluation. (CX-12, pp. 1-2, 5; CX-14, pp. 12-14). Dr. Baker testified that he believed Claimant wanted to get well, and to the extent possible, to return to his pre-injury status, but he was not convinced that it would be feasible given Claimantfs signs and symptoms.  He stated that Claimant was not able to return to his previous job.  Dr. Baker kept Claimant off of work the entire time he treated him.  (CX-12, p. 5; EX-25, pp. 36, 38-39, 41). Dr. Baker completed a Work Capacity Evaluation on October 18, 2007.  He wrote  that  Claimant  could  work  an  eight-hour  day  if  the  duties  were  within  his limitations.  He did not feel that there would be an increase in the number of hours a  day  Claimant  would  be   able  to  work.    He  believed  Claimant  might  require surgical  intervention,  but  he  needed  MRIs  of  the  affected  areas  prior  to  sending Claimant  for  surgical  consults.    Dr.  Baker  placed  the  following  restrictions  on Claimant: Sitting limited to ten minutes. Walking limited to 45 minutes. Standing limited to 45 minutes. Pushing and Pulling limited to fifteen pounds for ten minutes. No reaching, twisting, or repetitive movements of the wrists or elbows.

 

- 8 - No lifting, squatting, kneeling, or climbing. Claimant should be given fifteen minute breaks every two hours.   Limitations on driving a car were undetermined.  (CX-13). Claimant  finally  underwent  an  MRI  of  his  lumbar  spine  on  December  11, 2007,  which  Dr.  Baker  reviewed  at  his  last  visit  with  Claimant  on  January  14, 2008.  He stated that he had been concerned about the possibility of a compression fracture   at   T12,   and   the   MRI   substantiated   this   concern.      While   Dr.   Baker conceded   that   there   was   no   way   to   put   an   exact   date   on   when   this   fracture occurred,  he  said  it  was  possible  that  it  was  sustained  in  May  of  2007.    He  also explained  that  the  symptoms  of  such  a  fracture,  including  tenderness  on  spinous palpitation,    spasms    and    chronic    irritation,    were    consistent   with   Claimantfs symptoms.  As for Claimantfs lumbar spine, Dr. Baker opined that the L4-5 lateral recessed   stenosis,    the   neuroforaminal   stenosis    and   the    disc    bulges    certainly contributed  to  Claimantfs  pain  and  disability.    He  admitted  that  the  MRI  also revealed degenerative changes, but he believed that Claimantfs accident could have aggravated Claimantfs underlying degeneration.  Despite admitting that he had no previous   record   with   which   to   compare   the   December   2007   MRI,   Dr.   Baker testified    that    he    believed    the    May    15,    2007    injury    aggravated,    caused    or accelerated  Claimantfs  symptomatology.    (CX-14,  pp.  14-18,  20,  29;  EX-25,  p. 65). After   this   last   visit,   Dr.   Baker   concluded   that   the   type   of   care   he   was providing  was  not helping  and  he  would not continue  active  care  without  further diagnostic tests.  He did believe that it was appropriate that Claimant was seeing a neurosurgeon, Dr. Chow.  (CX-14, p. 18). As for future treatment, Dr. Baker recommended Claimant get an EMG and an  MRI  of  his  shoulder  and  knee.    He  said  it  was  hard  to  tell  whether  his  knee issues were related to the May 15, 2007 incident, but he said they could be related since  he  seemed  to  have  a  radicular  disc-based  problem  as  opposed  to  a  regular strain or sprain.  Dr. Baker also opined that the shoulder condition could have been caused by the May 15, 2007 incident.  (CX-14, pp. 20-22). Dr. Baker stated that despite his treatment of Claimant, he has yet to be paid, and the balance owed as of January 14, 2008 is $1,825.00.  (CX-14, p. 23; EX-25, pp. 55-56).

 

- 9 - MRI of Claimantfs Lumbar Spine dated December 11, 2007  (EX-25, pp. 65- 66) An  MRI  of  Claimantfs  lumbar  spine  was  taken  at  Open   Imaging   of Longview on December 11, 2007.  At L4-5, the MRI showed mild stenosis of the spinal canal, lateral recesses, and neural foramina secondary to a small disc bulge and  degenerative  facet  hypertrophy.    There  were  also  facet  degenerative  changes present   throughout   the   lumbar   spine,   and   a   mild   chronic   superior   endplate compression fracture of T12. Medical Records of Dr. Chow (CX-15, EX-13, EX-34) Claimant saw Dr. Chow, a micro-neurosurgeon, on December 17, 2007 as a consultation recommended by Dr. Rangu.  Dr. Chow noted that Claimant had been complaining  of back  pain and right lateral thigh dysesthesia since May 15, 2007.   Claimant  told  Dr.  Chow  that  he  had  received  chiropractic  care  but  it  had  not relieved   his   pain.      Claimantfs   pain   improved   with   standing,   lying   down   and changes in position but was aggravated by twisting, sitting, standing, and squatting.   Dr. Chow reviewed the December 11, 2007  MRI of Claimantfs lumbar spine and noted mild stenosis at L4-5 and a mild and chronic T12 compression fracture.  He diagnosed   Claimant   with   lumbago,   lumbar   stenosis,   compression   fracture,   and hypertension, and he recommended a trial of physical therapy.  (CX-15, p. 2). Claimant returned to see  Dr. Chow on January 18, 2008.   He continued to complain of pain, but said the physical therapy was helping.  Dr. Chow noted that Claimantfs knees were  better,  and  Claimant  was  walking  fine  and  getting  in  and out   of   chairs.      He   diagnosed   Claimant   with   lumbago   and   spondylosis   and recommended exercise.  (CX-15, p. 3). MRI of Claimantfs Right Shoulder (EX-33, pp. 9-10) Claimant  received  an  MRI  of  his  right  shoulder  on  March  18,  2008.    The MRI showed a full thickness tear of the anterior edge of the supraspinatus tendon.   The  torn  segment  of  the  tendon  was  retracted  by  fifteen  millimeters.    A  partial thickness posterior edge tear of the supraspinatus tendon was also present and there was moderate atrophy of the muscle.  The MRI also revealed severe tendinopathy and a mild partial articular surface tear of the subscapularis tendon and moderate tendinopathy of the infraspinatus tendon.

 

- 10 - Medical Records of Dr. Stanley (EX-15) On  March  26,  2008,  Claimant  presented  to  Dr.  Stanley,  an  orthopedist, complaining  of  right  shoulder  pain.    Claimant  had  seen  Dr.  Stanley  before  for treatment  of  his  left  knee.    Dr.  Stanley  reviewed  the  MRI  of  Claimantfs  right shoulder,  which  showed  a  small  focal  full  thickness  tear  with  one  and  a  half centimeters  of  retraction.    After  a  physical  examination,  Dr.  Stanley  diagnosed Claimant  with  a  rotator  cuff  tear  in  his  right  shoulder  and  recommended  that Claimant   undergo   surgery,   particularly   an   arthroscopic   decompression,   distal clavicle excision followed by a rotator cuff repair.  He noted that Claimant wanted to proceed with this surgery and did not want to try injections.  (EX-15, pp. 1-2). Medical Records and Deposition of Dr. Peter Foox (EX-26; EX-30) Dr.  Foox,  who  specializes  in  injuries  and  diseases  of  the  spine  and  large joints, but who is not board certified in orthopedic surgery,  was deposed on April 11, 2008.  He evaluated Claimant only once on February 13, 2008, at the request of Employer.  Claimant reported that he was driving a heavy truck in Iraq when he hit a hole, causing him to get thrown up and down in his air seat.  He said he jammed his  back  as  a  result  and  he  also  injured  his  right  shoulder  and  right  knee.    He denied  any prior history of back, right shoulder or right knee problems.  (EX-26, pp. 1-2; EX-30, pp. 4, 6-7). Dr. Foox reviewed Claimantfs  medical history, including the  treatment he received   from   Drs.   Rangu,   Baker   and   Chow.      He   noted   that   Claimant   had completed   two   months   of   physical   therapy,   had   received   approximately   thirty sessions of chiropractic treatment, and was taking Tramadol and Celebrex.  During a physical examination, Dr. Foox was unable to find anything objective to support Claimantfs complaints of pain; and he opined that whatever injuries Claimant had suffered had probably been in the form of contusions, sprains and strains.  (EX-26, pp. 1, 3, 7; EX-30, p. 10). Dr. Foox first addressed Claimantfs alleged back injury. He reviewed the MRI  of  Claimantfs  lumbar    spine    dated    December    11,    2007    and    observed significant  degenerative  changes  at  multiple  levels,  a  degree  of  spinal  stenosis  at L4-5  secondary  to  the  degenerative  facet  hypertrophy,  a  small  disc  bulge  and  a very  minimal  compression  fracture  involving  T12  at  the  superior  end  plate.    Dr. Foox  opined  that  the  changes  on  the  MRI  were  all  degenerative  in  nature  and probably  pre-existed the  May  15, 2007 incident.    However,  he  conceded  that the incident would have aggravated Claimantfs pre-existing degeneration, although not

 

- 11 - permanently.   Dr.  Foox  explained  that  Claimantfs  lumbar   spine   should   have recovered  within  three  weeks  to  two  months  after  the  injury,  and  it  would  have healed completely even without treatment.  At that point, Claimant would be able to return to whatever level of activity he was capable of before the May 15, 2007 incident.    Dr.  Foox  opined that Claimantfs present back pain was caused  by  the longstanding degenerative changes in his spine.  (EX-26, p. 3; EX-30, pp. 11, 13- 16, 17, 37). As for the T12 compression fracture in Claimantfs back, Dr. Foox said there was no way to tell from the MRI taken in December of 2007 whether it was due to compressive  force  experienced  during  the  May  2007  incident  or  whether  it  was pre-existent, but he later admitted that it was more probable than not, considering Claimantfs description of his injury, that the T12 compression fracture was caused by the May 15, 2007 incident.  However, Dr. Foox did not think that this fracture should be causing Claimant any more pain, because it had already set and because it did not involve the spinal canal or cord.  (EX-30, pp. 17, 34-36). Based  on  the  examination  he  performed  and  the  records  he  reviewed,  Dr. Foox believed that Claimant had completed and exhausted treatment for any injury to his lumbar spine caused by the May 2007 accident.  He felt that the chiropractic care    and    physical    therapy    Claimant    had    received    had    exceeded    what    was appropriate  or  effective.    Dr.  Foox  opined  that  about  six  to  twelve  chiropractic treatments and twelve to eighteen physical therapy sessions would have sufficed.   However, he felt the treatment rendered by Drs. Baker and Chow was related to the May 15, 2007 back injury. (EX-26, pp. 3, 7; EX-30, pp. 19-20, 38). Overall, Dr. Foox concluded that Claimant had  reached MMI  in regards to his back injury around the time that he completed the last of his chiropractic care or physical  therapy.    He later clarified that the treatment to Claimantfs back was reasonable and necessary for about three months after the May 15, 2007 incident, but  that  all  treatment  Claimant  received  after  three  months  was  related  to  his underlying degenerative changes.6  He also concluded that Claimant had no current impairment to his lumbar spine as a result of the May 2007 incident.  (EX-30, pp. 21, 27, 43).                                                  6 Dr. Foox admitted that his choice of three months was somewhat arbitrary.  (EX-30, p 43).

 

- 12 - Dr. Foox next addressed Claimantfs shoulder injury.  Dr. Foox agreed that the MRI of Claimantfs right shoulder taken in March of 2008 revealed a tear of the rotator cuff, and he said that this was consistent with his physical examination of Claimant.  However, he did not believe this tear  was a result of the May 15, 2007 driving incident, simply because there was no record of Claimant complaining of shoulder  pain  to  Employerfs  medics  in  Iraq,   although   he   conceded   that   the shoulder injury could have resulted from the incident.  He also explained that the cause  of  a  rotator  cuff  tear  is  not  limited  to  trauma,  and  can  happen  over  time.   (EX-26, p. 7; EX-30, pp. 22, 24). Dr. Foox agreed with Dr. Stanleyfs recommendation that Claimant undergo arthroscopic  surgery  on  his  right  shoulder.    Because  surgical  intervention  was required, Dr. Foox stated that Claimant had not yet reached MMI on his shoulder.   Dr.   Foox   estimated   that   Claimant   would   recover  the   full   functional   ability   to resume driving trucks about three months after the proposed surgery.  Any residual impairment would be based on loss of range of motion function, and would have to be evaluated after his recovery.  (EX-30, pp. 24-27). As for Claimantfs right knee, Dr. Foox reported that his examination did not reveal   any   internal   structural   damage.      He   opined   that   if   Claimant   was   still experiencing knee pain, he probably had a soft-tissue injury that resolved without treatment.    Dr.  Foox  did  not  think  Claimant  required  any  more  treatment  for  his knee.  (EX-30, p. 29). Other Evidence Claimantfs 2006 Earnings (EX-7, EX-28) In  2006,  Claimant  earned  $924.38  from  Frito  Lay  and  $11,060.69  from Heartland Tour Bus Company, Inc., for a total of $11,985.07 in earnings.  (EX-7, pp. 265-266).

 

- 13 - Claimantfs Wage Records from Employer (EX-2) Claimant was paid by Employer on a monthly basis for seven months from January 2007 through July 2007.7    Employment Agreement (CX-1) According to the Employment Agreement between Claimant and Employer, Claimantfs  base  salary  was  $3,000.00  a  month.    He  started  his  employment  on December 29, 2006, and his contract was for twelve months of employment.  (CX- 1, p. 15). Employerfs Incident Report and Incident Investigation Report (CX-9, pp. 15- 17, 22-23) The   Incident   Investigation   Report   determined   that   on   May   15,   2007, Claimant,  while  driving,  hit  a  pothole  that  catapulted  him  upward  and  then  back down  hard  into  his  seat,  causing  him  to  injure  his  back  and  right  leg.    Claimant visited a medic, who diagnosed him with a lumbar strain.  There were no witnesses to the incident, but Claimantfs supervisor, Mr. Lionel Mingo, gave a statement that corroborated Claimantfs description of the incident. An investigation revealed that Claimant  had  let  the  air  out  of  his  seat  in  order  to  lower  himself  to   a  more comfortable level.   This disabled  the air cushion that suppressed  the shocks from bumps and potholes.                                                  7 A note on the wage records explains that Claimant was not withdrawn as an employee until June 6, 2007.    Month Pay January 2007 $290.88 February 2007 $6,828.27 March 2007 $8,033.08 April 2007 $9,902.85 May 2007 $8,024.43 June 2007 $6,986.64 July 2007 $896.88         TOTAL:            $40,963.03

 

- 14 - After Action Report (AAR) Meeting (CX-9, p. 24) An   AAR   meeting  was  held  on   May   18,  2007.      It   was  determined   that Claimant hit the hole in the road because of bad road conditions, and that the only way  to  prevent  this  from  happening  in  the  future  was  to  repave  the  roads,  the occurrence of which was unlikely.   The meeting concluded that Claimant was not negligent  in  his  duties,  and  that  ways  to  avoid  this  type  of  incident  in  the  future included  keeping  as  much  air  in  the  seats  of  the  trucks  as  possible  and  alerting military vehicles of potholes. Findings of Fact and Conclusions of Law The  following  findings  of  fact  and  conclusions  of  law  are  based  upon  my observation of the appearance and demeanor of the witnesses  who testified at the hearing  and  upon  an  analysis  of  the  entire  record,  arguments  of  the  parties,  and applicable  regulations,  statutes,  and  case  law.    In  evaluating  the  evidence  and reaching a decision in this case, I have been guided by the principles enunciated in Director,  OWCP  v.  Greenwich  Collieries  (Maher  Terminals),  512  U.S.  267,  28 BRBS 43 (1994), that the burden of persuasion is with the proponent of the rule.   Additionally, as trier of fact, I may accept or reject all or any part of the evidence, including  that  of  medical  witnesses,  and  rely  on  my  own  judgment  to  resolve factual disputes or conflicts in the evidence.  Todd Shipyards v. Donovan, 300 F.2d 741 (5th Cir. 1962).  The Supreme Court has held that the gtrue doubth rule, which resolves conflicts in favor of the Claimant when the evidence is balanced, violates Section   556(d)   of   the   Administrative   Procedures   Act.      Director,   OWCP   v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (1994). Causation Section  20(a)  of  the  Act  provides  a  Claimant  with  a  presumption  that  his disabling  condition  is  causally  related  to  his  employment  if  he  shows  that  he suffered a harm, and that employment conditions existed which could have caused, aggravated, or accelerated the condition.  Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991); Stevens v. Tacoma Boat Building Co., 23 BRBS 191 (1990).   The   Section   20(a)   presumption   operates   to   link   the   harm   with   the   injured employeefs  employment.    Darnell  v.  Bell  Helicopter  Intfl,  Inc.,   16   BRBS  98 (1984).

 

- 15 - Once  the  Claimant  has  invoked  the  presumption,  the  burden  shifts  to  the employer  to  rebut  the  presumption  with  substantial  countervailing  evidence  and show that the claim is not one garising out of or in the course of employment.h  33 U.S.C. 902(2), 903;  Ortco  Contractors, Inc. v. Charpentier, 332 F.3d 283 (5th Cir.  2003);  James  v.  Pate  Stevedoring  Co.,  22  BRBS  271  (1989).    Substantial evidence has  been defined  as such  relevant  evidence  as  a reasonable  mind  might accept  to  support  a  conclusion.    Sprague  v.  Director,  OWCP,  688  F.2d  862,  865 (1st  Cir. 1982).  If there has been a subsequent non-work-related event, employer can  establish  rebuttal  of  the  Section  20(a)  presumption  by  producing  substantial evidence that claimant's condition was not caused by the work-related event. James v.  Pate  Stevedoring  Co.,  22  BRBS  271 (1989).  Employer  is  liable  for  the  entire disability if the second injury is the natural or unavoidable result of the first injury. Where the second injury is the result of an intervening cause, employer is relieved of liability for that portion of disability attributable to the second injury. Bailey v. Bethlehem Steel Corp., 20 BRBS 14 (1987).   If the employer meets its burden, the Section  20(a)  presumption  is  rebutted  and disappears,  and the  administrative  law judge must weigh all the evidence and render a decision supported by substantial evidence.  Del Vecchio v. Bowers, 296 U.S. 280 (1935). In the present case, Claimant testified that on May 15, 2007, while he was driving a heavy truck in a convoy as part of his employment with Employer, he hit a  pothole  in the road, causing him to be thrown upward from his seat.  When he came   back   down,   he   hit   the   seat   with   such   force   that   he   immediately   began experiencing pain in his back, right shoulder and right knee.  (Tr. 21-22, 24).  He informed  his  supervisor  of  this  incident  later  that  same  day  and  completed  an Incident Report.  (CX-9, pp. 15-17).  Also on that same day, Claimant saw one of Employerfs medics, who diagnosed him with a lumbar strain and gave him some motrin.   (EX-5, p. 7).    Claimant denied having previous problems  with  his  back, right shoulder or right knee, and all three were within normal limits according to his pre-employment physical examination of December 12, 2007.  (EX-4, pp. 2, 9- 10).     In  sum,  in  light  of  Claimantfs  testimony  and  the  corroborating  Incident Report and medical records, Claimant has shown that he suffered a harm on May 15,   2007   and   that   employment   conditions   existed   which   could   have   caused, aggravated or accelerated that harm, and as such he has invoked the Section 20(a) presumption of compensability. In  an  effort  to  rebut  this  presumption,  Employer/Carrier  first  argues  that because there were no witnesses to Claimantfs alleged injury, there is not enough evidence  to  prove  that  he  was  in  fact  injured  as  a  result  of  hitting  a   pothole.   However,   while   there   were   no   witnesses,   there  is   enough   evidence,   including

 

- 16 - Claimantfs  own  testimony,  to  substantiate  that  an  incident  occurred  and  that Claimant   was   injured   as   a   result.      In   addition   to   the   medical   records   from Employerfs clinic in Iraq, there was an investigation into the accident carried out by  Employer.    This  Incident  Investigation  Report  revealed  that  Claimant  had  let out too much air in his seat in an attempt to reach a comfortable height for driving, and   as   a   result   had   left   himself   more   susceptible   to   shocks   and   bumps   from potholes.        (CX-9,    p.    23).        Therefore,    even    though    there    is    no    eyewitness corroboration that Claimant injured himself when he hit the pothole, the Incident Investigation  Report  suggests  that  hitting  a  pothole  could  have  possibly  injured Claimant,  and  the  records  from  Employerfs  clinic  suggest  that  he  was,  in  fact, injured. Alternatively, Employer/Carrier argues that if Claimant was injured on May 15,  2007,  only  his  back  was injured, not his  right  shoulder or right  knee.    While Employer/Carrier concede that Claimantfs right shoulder is currently injured, they contend    that    this    injury    was    not    a    result    of    the    May    15,    2007    accident.   Employer/Carrier points to the fact that there is no record of Claimant complaining of shoulder pain until months after his accident.  However, Claimantfs complaints of  shoulder  pain  are  first  recorded  at  his  initial  visit  with  Dr.  Baker  on  June  11, 2007, less than a month after the accident.  (CX-14, p. 9).  Employer/Carrier also relies  on  the  testimony  of  Dr.  Foox,  who  opined  that  Claimantfs shoulder injury was not related to the May 15, 2007 incident; however, Dr. Foox admitted that he based  this  determination  solely  on  the  fact  that  Claimant  had  not  complained  of shoulder  pain  to  the  medics  at  Employerfs  clinic  in  Iraq.    (EX-30,   p.   22).   Furthermore, in his medical report from his evaluation of Claimant, he admits that Claimantfs  shoulder  condition  could  have  been  caused  by  the   May   15,   2007 accident.  (EX-26, p. 7). As for Claimantfs knee injury, Employer/Carrier argues that his right knee was never  injured, based on  Claimantfs testimony  that it  does  not  cause  him  as much pain as it used to, and  on Dr. Fooxfs inability to find anything structurally wrong.  (Tr. 35; EX-30, p. 29).  However, Claimant was never allowed to  get his knee   properly   evaluated   because   Employer/Carrier   consistently   denied   medical treatment.        Dr.    Baker    admitted    that    he    was    unable    to    determine    from    his examinations of Claimant whether his knee problems were related to the May 15, 2007 incident, but he felt that they could be in light of Claimantfs symptoms.  (CX- 14, pp.  21-22).    He  recommended that Claimant  obtain  an  EMG  and  MRI of his right knee, but this was never approved by Employer/Carrier.  (CX-14, p. 20).  It is insufficient rebuttal for Employer/Carrier to point to a lack of medical evidence as support for the argument that Claimant never suffered a knee injury when Claimant

 

- 17 - was   unable   to   obtain   any   treatment   to   determine   whether   or   not   he   actually sustained a knee injury.  This is also true of Claimantfs right shoulder condition.   Dr. Baker opined that Claimant was suffering from a rotator cuff injury to his right shoulder  after  an  examination  on  October  2,  2007,  and  recommended  Claimant obtain an MRI to confirm or deny his suspicion.  (CX-12, pp. 1-2).  However, no MRI  of  Claimantfs  right  shoulder  was  obtained  until  March  18,  2008,  and  only then was Dr. Bakerfs suspicion confirmed.  (EX-33, pp. 9-10). Consequently, in light of the above evidence, along with the opinion of Dr. Baker that the May 15, 2007 accident aggravated, caused or accelerated Claimantfs symptomatology (CX-14, p. 20), I find that Employer/Carrier has failed to provide substantial  evidence  to  rebut  the  Section  20(a)  presumption  of  compensability  in regards to Claimantfs back, right shoulder and right knee injuries. Nature and Extent Having established an injury, the burden now rests with Claimant to prove the  nature  and  extent  of  his  disability.    Trask  v.  Lockheed  Shipbuilding  Constr.   Co., 17 BRBS 56, 59 (1985).  A Claimantfs disability is permanent in nature if he has any residual disability after reaching maximum  medical improvement.   Id.  at 60.  Any disability before reaching MMI would thus be temporary in nature. The date of maximum medical improvement (MMI) is defined as the date on which the employee has received the maximum benefit of medical treatment such that his condition will not improve.  The date on which a Claimantfs condition has become   permanent   is   primarily   a   medical   determination.      Mason   v.   Bender Welding & Mach. Co., 16 BRBS 307, 309 (1984).  The date of maximum medical improvement  is  a  question  of  fact  based  upon  the  medical  evidence  of  record regardless  of  economic  or  vocational  consideration.    La.  Ins.  Guaranty  Assfn  v. Abott, 40 F.3d 122, 29 BRBS 22 (5th Cir. 1994); Ballesteros v. Willamette Western Corp., 20 BRBS 184, 186 (1988); Williams v. Gen. Dynamics Corp., 10 BRBS 915 (1979). In the present case, Claimant argues that he has not reached MMI in regards to his right shoulder, back or right knee.  Employer/Carrier agrees that because Dr. Stanley   determined   that   Claimant   requires   surgery   for   the   rotator   cuff   tear   in Claimantfs  right  shoulder,  Claimant  has  not  yet  reached  MMI  for  that  injury. However, Employer/Carrier maintains that Claimant  has reached MMI as to both his back and right knee injuries.

 

- 18 - In regards to Claimantfs back injury, Employer/Carrier argues that Claimant reached MMI around the end of September 2007, based on the medical opinion of Dr. Foox.  According to Dr. Foox, Claimant strained or sprained his lumbar spine as   a   result   of   the   May   15,   2007   incident,   and   this   possibly   aggravated   his underlying  pre-existing  degenerative  disc  disease.    (EX-26,  p.  7;  EX-30,  pp.  14, 37).  However, Dr. Foox estimated that this sprain or strain  should have healed at most  about three months after the injury.   (EX-30, p.  15-16, 43).   Therefore, any back  pain Claimant  experienced  after that three-month mark  is solely attributable to his degenerative disc disease, and not at all related to the incident of May 15, 2007.          (EX-30,     p.     43).          In     regards     to     Claimantfs     right     knee     injury, Employer/Carrier  again  relies  on  the  testimony  of  Dr.  Foox,  who  opined  that  if Claimant  did  indeed suffer  an  injury  to  his  right  knee,  it  was  a  soft  tissue injury that had long since resolved and did not require any further treatment.  (EX-30, p. 29). Despite the testimony of Dr. Foox, I find that Claimant has not yet reached MMI in regards to his back and right knee injuries.   Dr. Fooxfs determination of when  Claimant  reached  MMI  is  ambiguous  for  both  the  back  and  knee  injuries and, by Dr. Fooxfs own admission,  arbitrary for the back injury.   (EX-30, p. 43).   Furthermore, Dr. Foox only examined Claimant once, as opposed to Dr. Baker and Dr.  Chow,  who  examined  Claimant  on  multiple  occasions  and  continue  to  treat him   for   his   back   and   knee   injuries.      (EX-26,   p.   1;   CX-14;   CX-15).      Most importantly,   Claimant   has   been   unable   to   get   the   basic   treatment   needed   to properly evaluate these injuries due to his inability to find doctors who are willing to  take  workersf  compensation  patients  and  Employerfs  refusal  to  authorize  the most basic diagnostic services.  Claimant has been regularly treated by Dr. Baker, a chiropractor, who admitted that Claimant would find  more proper care through an  orthopedist  and  a  neurosurgeon.    (CX-12, p.  5;  CX-14, p.  18).    However,  Dr. Baker    was    initially    unable    to    refer    Claimant    to    these    specialists    because Employer/Carrier refused to authorize basic tests, such as an MRI or EMG, needed for such referrals.  (CX-12, p. 5).  Claimant was finally able to get an MRI of his lumbar   spine   and   receive   treatment   from   a   neurosurgeon,   Dr.   Chow,   who   is continuing to treat Claimant with  physical therapy and medications.   (CX-15, pp. 2-3).    As for Claimantfs knee, he has yet to see anyone except Dr. Foox, a doctor who   is  not   board  certified   in  orthopedics  and   who   was   chosen   by   Employer, despite Dr. Bakerfs recommendation that Claimant get an EMG and MRI.  (EX-30, p. 6; EX-26, p. 1; CX-14, p. 20).  In sum, the treatment of Claimantfs back, right shoulder  and  right  knee  is  still  ongoing;  consequently, Claimantfs injuries to his back, right shoulder and right knee have not reached MMI.

 

- 19 - The   question  of   extent   of  disability   is  an   economic   as   well   as   medical concept.    Quick  v.  Martin,  397  F.2d  644  (D.C.  Cir.  1968);  Eastern  S.S.  Lines  v. Monahan,  110  F.2d  840  (1st  Cir.  1940).    A  Claimant  who  shows  he  is  unable  to return to his former employment due to his work related injury establishes a prima facie  case  of  disability.    The  burden  then  shifts  to  the  employer  to  show  the existence  of  suitable  alternative  employment.    P  &  M  Crane  Co.  v.  Hayes,  930 F.2d 424, 420, 24 BRBS 116 (5th Cir. 1991); New Orleans (Gulfwide) Stevedores v.  Turner,  661  F.2d  1031,  1038,  14  BRBS  1566  (5th  Cir.  1981).    Furthermore,  a Claimant who establishes an inability to return to his usual employment is entitled to an award of total disability compensation until the date on which the employer demonstrates the availability of suitable alternative employment.   Rinaldi v. Gen. dynamics   Corp.,   25   BRBS   128   (1991).      If   the   employer   demonstrates   the availability of realistic job opportunities, the employeefs disability is partial, not total.    Southern v. Farmerfs Export Co.,  17  BRBS  24  (1985).    Issues  relating  to nature and extent do not benefit from the Section 20(a) presumption.  The burden is   upon   Claimant   to   demonstrate   continuing   disability,   whether   temporary   or permanent, as a result of his accident. In    this    case,    Claimant    continued    to    be    employed    by    Employer    for approximately  two  weeks  after  the  May  15,  2007  incident,  but  he  testified  that during that time he was not put on any convoys and he continued to be in pain. (Tr. 27).   He returned to the United States on May 30, 2007 in order to seek medical attention for his injuries, and he has not worked since.  (Tr. 27; EX-25, pp. 36, 38- 39,  41).    Claimant  said  that  he  does  not  think  he  could  return  to  his  job  for Employer  and Dr. Baker agreed.   (Tr.  39; CX-12, p. 5).   Therefore, Claimant has established   a   prima   facie   case   of   disability,   and   the   burden   now   shifts   to Employer/Carrier to show suitable alternative employment. To  establish  suitable  alternative  employment,  an  employer  must  show  the existence   of   realistically   available   job   opportunities   within   the   claimantfs geographical   area   which   he   is   capable   of   performing,   considering   his   age, education, work experience and physical restrictions, for which the claimant is able to compete and could likely secure if he diligently tried.   New Orleans (Gulfwide) Stevedores  v.  Turner,  661  F.2d  1031,  1042-43,  14  BRBS  156,  164-65  (5th  Cir. 1981).

 

- 20 - Turner does not require that the employer find specific jobs for the claimant or act as an employment agency for the claimant; rather, the employer may simply demonstrate   the   availability   of   general   job   openings   in   certain   fields   in   the surrounding community.  P & M Crane Co. v. Hayes, 930 F.2d 424, 431 (5th Cir. 1991);  Avondale  Shipyards,  Inc.  v.  Guidry,  967  F.2d  1039,  1044  (5th  Cir.  1992).   However,  for  job  opportunities  to  be  realistic,  the  employer  must  establish  the precise nature and terms of job opportunities which it contends constitute suitable alternative  employment.    Thompson  v.  Lockheed  Shipbuilding  &  Constr.  Co.,  21 BRBS  94,  97  (1988).    The  administrative  law  judge  must  compare  the  jobsf requirements identified by the vocational expert with the claimantfs physical and mental restrictions based on the medical opinions of record.   Villasenor v. Marine Maint. Indus., Inc., 17 BRBS 99, 103 (1985).  Once the employer demonstrates the existence    of    suitable    alternative    employment,    the    claimant    can    nonetheless establish total disability by demonstrating that he tried with reasonable diligence to secure  such  employment  and  was  unsuccessful.    P  &  M  Crane  Co.,  930  F.2d  at 430. In  this  instance,  Employer/Carrier  offered  no  evidence  concerning  suitable alternative  employment.    Consequently,  I  find  that  Claimant  became  temporarily and   totally   disabled   as   of   May   30,   2007.      Granted,   Claimant   expressed   a willingness to return to work and testified about job opportunities with Frito Lay or as a bus driver; however, at this time and without further medical treatment he said he was unable to lift or to sit long enough to accomplish either task.  (Tr. 35-36). Average Weekly Wage Section 10 sets forth three alternative methods for determining a claimant's average annual earnings, which are then divided by fifty-two, pursuant to Section 10(d),   to   arrive   at   an   average   weekly   wage.      33   U.S.C.      910(d)(1).      The computation methods are directed towards establishing a claimant's earning power at the time of the injury.  Johnson v. Newport News Shipbuilding & Dry Dock Co., 25 BRBS 340 (1992); Lobus v. I.T.O. Corp., 24 BRBS 137 (1990). Sections  10(a)  and  10(b)  apply  to  an  employee  working  full-time  in  the employment  in  which  he  was  injured.    Roundtree  v.  Newpark  Shipbuilding  & Repair,  Inc., 13  BRBS  862  (1981),  revfd  698  F.2d 743,  15 BRBS  94  (CRT)  (5th Cir. 1983),  panel decision revfd en banc, 723 F.2d 399, 16 BRBS 34 (CRT) (5th Cir.)  cert.  denied,  469  U.S.  818  (1984).    Section  10(a)  applies  if  the  employee worked gsubstantially the whole of the yearh preceding the injury, which refers to

 

- 21 - the  nature  of  the  employment,  not  necessarily  the  duration.    The  inquiry  should focus   on   whether   the   employment   was   intermittent   or   permanent.   Gilliam   v. Addison  Crane  Co.,  21  BRBS  91  (1987);  Eleazer  v.  General  Dynamics  Corp.,  7 BRBS 75 (1977).  If the time in which the claimant was employed was permanent and steady then Section 10 (a) should apply.  Duncan v. Washington Metropolitan Area   Transit,   24   BRBS   133   (1990)   (holding   that   34.5   weeks   of   work   was gsubstantially the whole year,h where the work was characterized as gfull time,h gsteadyh and gregularh). The number of weeks worked should be considered in tandem with the nature of the work when deciding whether the Claimant worked substantially the whole year.  Lozupone v. Lozupone  & Sons, 12 BRBS 148, 153- 156 (1979). Section  10(a)  cannot  reasonably  and  fairly  be  applied  to  yield  a  wage  that reflects Claimantfs actual earning capacity at his time of injury because Claimant did not work in the same or similar employment for substantially the whole of the year  preceding  his  injury.    He  only  worked  for  approximately  five  months  as  a heavy truck driver for Employer in Iraq, and before that he was employed on a part time basis as a tour bus driver for Heartland Tour Bus Company, Inc. and a truck driver for Frito Lay, which cannot be considered similar employment for purposes of Section 10(a).  (EX-7, pp. 265-266).  Based on the foregoing, I find that Section 10(a) is inapplicable in this case. Because  Section  10(a)  is  not  applicable,  I  will  next  look  to  Section  10(b).   Section   10(b)   applies   to   an   injured   employee   who   worked   in   permanent   or continuous  employment,  but  did  not  work  for  substantially  the  whole  year.    33 U.S.C. 910(b);  Empire United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26 (CRT)(5th  Cir.  1991).    This  would  be  the  case  where  the  Claimant  had  recently been  hired  after  having  been  unemployed.    Section  10(b)  looks  to  the  wages  of other   workers   and   directs   that   the   average   weekly   wage   should   be   based   on thewages of an employee of the same class, who worked substantially the whole of the  year  preceding the injury, in the same or similar employment, in the same or neighboring place.  Accordingly, the record must contain evidence of the substitute employee's  wages.    See Sproull  v.  Stevedoring  Servs. of  America,  25 BRBS 100, 104 (1991). In  this  instance,  not  only  does  Claimant  fail  to  introduce  evidence  of  the earning capacity of employees in the same class as himself, but also Section 10(b) requires comparison with a five or six day-per-week employee.  Claimant testified that he worked seven days a week, and as such Section 10(b) is also inapplicable.   (Tr. 20).

 

- 22 - Section (c) is a catch-all to be used in instances when neither (a) nor (b) are reasonably and fairly applicable. If employee's work is inherently discontinuous or intermittent, his  average weekly wage for purposes of compensation award under Longshore  and  Harbor  Workers'  Compensation  Act  (LHWCA)  is  determined  by considering his previous earnings in employment in which he was working at the time  of  injury,  reasonable  value  of  services  of  other  employees  in  same  or  most similar employment, or other employment of employee, including reasonable value of  services  of  employee  if  engaged  in  self-employment.  Longshore  and  Harbor Workers'  Compensation  Act,    10(c),  33  U.S.C.A.    910(c).    New  Thoughts Finishing Co. v. Chilton, 118 F.3d 1028 (5th Cir. 1997). In this case, I find that Section 910(c) applies because neither (a) nor (b) can be reasonably and fairly used to determine Claimantfs average weekly wage.  The Administrative  Law  Judge  has  broad  discretion  in  determining  annual  earning capacity  under  subsection  10(c).      Hayes  v.  P  &  M  Crane  Co.,  supra;  Hicks  v. Pacific  Marine  &  Supply  Co.,  Ltd.,  14  BRBS  549  (1981).    It  should  also  be stressed  that  the  objective  of  subsection  10(c)  is  to  reach  a  fair  and  reasonable approximation of  a  claimantfs  wage-earning  capacity  at  the  time  of  injury.    See Story v. Navy Exch. Serv. Center, 33 BRBS 111(1999). Claimant argues that his average weekly wage (AWW) should be calculated based on his actual earnings with Employer at the time of his injury.  In particular, Claimant relies on S.K. v. SEII, 41 BRBS 293 (2006), in which the Administrative Law  Judge  (ALJ)  decided that  a  claimant  who  had  only  worked  overseas  for his employer  for  about  five  months  was  entitled  to  a  computation  of  AWW  based onher actual earnings with that employer.  The ALJ determined that this was the best  method  of  calculating  the  claimantfs  AWW  because  the  employment  had significantly   enhanced   her   earning   capacity   and   it   was   unclear   how   long   the claimant would remain employed by that employer had she not been injured. Employer/Carrier,  on  the  other  hand,  argues  that  Claimantfs  AWW  should be  determined  by  combining  or  blending  the  wages  he  earned  during  the  year immediately  preceding  his  accident,  including  those  from  Employer  and  those earned  from  other  employers.    In  R.L.  v.  SEII,  41  BRBS  525  (2007),  the  ALJ seriously  considered  that  employerfs  same  argument  that  the  claimantfs  AWW should be determined using the earnings for the 52 weeks immediately preceding the injury based on a statement made by the claimant during his deposition that he was not planning on staying in Iraq beyond one year.  Despite the ALJfs ultimate ruling that the claimantfs statement was taken out of context, his consideration of

 

- 23 - this issue implies to me that such a method for determining AWW could be used if it can be shown that the claimant had no intention of continuing to work overseas at a higher rate of pay for a long or indefinite time. Claimant  was  previously  retired  and  only  worked  intermittently  prior  to accepting his job with Employer, and he testified that he only intended to work for Employer for two years.  He was drawn to the job because of the increased earning capacity, and he said at the end of those two years he intended to use his increased earnings to travel with his wife.  (Tr. 19).  In light of the above, and considering his age, it would be unreasonable and unjust to calculate Claimantfs AWW  based on his actual earnings while working for Employer.  It would grant him a considerable windfall, since he made clear he only intended to work for Employer for a limited duration.    Under  these  circumstances,  I  find  that  the  most  appropriate,  fair  and reasonable  method of  computing  Claimantfs  AWW  is  to  take  into  consideration Claimantfs earnings in the year immediately preceding his injury on May 15, 2007. In order to calculate Claimantfs AWW  during  the  52  weeks  preceding  his May 15, 2007 injury, I must first determine and include the wages he earned prior to  his  employment  with  Employer.    Claimantfs tax records show that  in 2006  he earned  a  total  of  $11,985.07  from  employment  with  Frito  Lay  and  the  Heartland Tour Bus Company, Inc.   (EX-7, pp. 265-266).   Claimant  worked  a total of 51.6 weeks8  in 2006  for  those  former  employers  and those  earnings,  when divided  by 51.6,  yields an AWW of  $232.27.   Applying that  AWW for the 32.4 weeks from May   15,   2006   until   December   29,   2006   (when   Claimant   began   working   for Employer), I find that Claimant had total earnings  of $7,525.55 from those other sources.  For the remaining portion of the 52 weeks in question, Claimant earned $36,810.15 from Employer, for total combined earnings from all employers during the  52  weeks  preceding  his  May  15,  2007  injury  of  $44,335.70,  which  when divided by 52 equals an AWW of $852.61. Medicals In  order  for  a  medical  expense  to  be  assessed  against  the  employer,  the expense must be both reasonable and necessary.  Parnell v. Capitol Hill Masonry, 11 BRBS 532, 539 (1979).  Medical care  must  be appropriate for the injury.  20 C.F.R. 702.402.  A Claimant has established a prima facie case for compensable medical  treatment  where  a  qualified  physician  indicates  treatment  was  necessary                                                  8 Claimant began working for Employer on December 29, 2006, making his total work time for Employer in 2006 0.4 weeks.  (CX-1, p. 15).

 

- 24 - for a work-related condition.  Turner v. Chesapeake & Potomac Tel. Co., 16 BRBS 255,  257-58  (1984).    The  Claimant  must  establish  that  the  medical  expenses  are related  to  the  compensable  injury.    Pardee  v.  Army  &  Air  Force  Exch.  Serv.,  13 BRBS 1130 (1981); Suppa v. Lehigh Valley R.R. Co., 13 BRBS 374 (1981).  The employer is liable for all medical expenses which are the natural and unavoidable result  of  the  work  injury,  and  not  due  to  an  intervening  cause.    Atl.  Marine  v. Bruce, 661 F.2d 898, 14 BRBS 63 (5th Cir. 1981). An  employee  cannot  receive  reimbursement  for  medical  expenses  under this   subsection   unless   he   has   first   requested   authorization,   prior   to   obtaining treatment, except in cases of emergency or refusal/neglect.  20 C.F.R. 702.421; Shahady v. Atlas Tile & Marble Co., 682 F.2d 968 (D.C. Cir. 1982); McQuillen v. Horne Bros., Inc., 16 BRBS 10 (1983); Jackson v. Ingalls Shipbuilding Div., Litton Sys.,  15  BRBS  299  (1983);  Schoen  v.  United  States  Chamber  of  Commerce,  30 BRBS  112  (1996).    If  an  employer  has  no  knowledge  of  the  injury,  it  cannot  be said  to  have  neglected  to  provide  treatment,  and  the  employee  therefore  is  not entitled  to  reimbursement  for  any  money  spent  before  notifying  the  employer.   McQuillen, 16 BRBS 10. Section 7(c)(2) of the Act provides that when the employer or carrier learns of  its  employeefs  injury,  it  must  authorize  medical treatment by  the  employeefs chosen physician.  Once a Claimant has made his initial, free choice of a physician, he   may   change   physicians   only   upon   obtaining   prior   written   approval   of   the employer,   carrier,   or   District   Director.      See   33   U.S.C.     907(c);  20   C.F.R.    702.406.    The  employer  is  ordinarily  not responsible  for the  payment  of  medical benefits if a Claimant fails to obtain the required authorization.  Slattery Assocs. V. Lloyd, 725 F.2d 780, 787, 16 BRBS 44, 53 (D.C. Cir. 1984);  Swain v. Bath Iron Works  Corp.,  14  BRBS  657,  664  (1982).    Failure  to  obtain  authorization  for  a change can be excused, however, where the Claimant has been effectively refused further  medical  treatment.    Lloyd,  725  F.2d  at  787,  16  BRBS  at  53;  Swain,  14 BRBS at 664. In the present case, Claimant was initially treated by medics at Employerfs clinic in Iraq.  (EX-5).  However, he was not satisfied with the treatment offered by this  clinic.    He  said  it  was  more  akin  to  a  first  aid  station  and  he  continued  to experience  pain.    (Tr.  28).    Claimant  attempted  to  get  sent  to Kuwait  for a  more thorough  examination,  but  this  was  denied.    (Tr.  28).    Claimant  felt  his  only recourse for adequate evaluation and treatment of his back, right shoulder and right knee was to demobilize and return to the United States.  (Tr. 30).

 

- 25 - Once  Claimant  returned,  he  sought  treatment  from  his  family  doctor,  Dr. Rangu.    Dr.  Rangu  attempted  to  refer  Claimant  to  an  orthopedist,  including  Dr. Stanley,   who   had   treated   Claimantfs  left  knee  prior  to  his   employment   with Employer.  (Tr. 30; EX-15, p. 1).  However, Employer/Carrier would not authorize these  referrals  and  Claimant  had  trouble  finding  an  orthopedist  in  his  area  who would  take  workersf  compensation  patients.    (Tr.  30-31).    Claimant  eventually settled  for  treatment  from  Dr.  Baker,  a  chiropractor.  (Tr.  32).    Employer/Carrier did not authorize treatment by Dr. Baker, and refused to authorize his requests for diagnostic tests, such as an MRI.  (CX-12, pp. 1-2).  Without the diagnostic tests, Dr. Baker was unable to fully evaluate the extent of Claimantfs condition, and was forced  to  resort  to  extremely  conservative  treatment,  which  offered  no  relief  for Claimant.  (CX-14, pp. 11-13).  The absence of diagnostic tests also made it harder for Dr. Baker to refer Claimant to an orthopedic surgeon or a neurosurgeon, since these  physicians  generally  evaluate  these  tests  before  deciding  to  see  a  referred patient.  (CX-12, p. 5). Claimant was eventually able to obtain MRIs of his back and right shoulder, and  to  seek  treatment  for  his  back  from  a  neurosurgeon,  Dr.  Chow,  and  for  his right shoulder from  an orthopedic surgeon, Dr. Stanley.    (EX-25, pp. 65-55; EX- 33,   pp.   9-10;   CX-15;   EX-15).      However,   these   services   were   paid   for   by Claimantfs personal insurance and Medicare; Employer/Carrier did not authorize or  pay  for  these  visits.    (Tr.  30).    Dr.  Chow  has  prescribed  medications  and physical  therapy  for  Claimant  (CX-15,  p.  2;  TR.  33-34),  and  Dr.  Stanley  has recommended  surgery  on  Claimantfs right shoulder. (EX-15,  p.  2). Claimantfs right knee has yet to be properly evaluated. Claimant has sought the above treatment in order to address his back, right shoulder and right knee injuries, all of which I have found to be related to his May 15, 2007 accident.  All of this treatment seems to be reasonable and necessary and stemming from the referrals of Claimantfs chosen  physicians, Dr. Rangu and Dr. Baker, and I find all of the  same  to be Employer/Carrierfs responsibility.  Why Employer/Carrier   has   refused   the   obligation   is   curious.      Likewise,   as   to   the medications   and   physical   therapy   prescribed   by   Dr.   Chow   and   the   surgery recommended  by  Dr.  Stanley,  I  find  the  same  to  be  the  Section  7  obligation  of Employer/Carrier.

 

- 26 - ORDER It is hereby ORDERED, ADJUDGED and DECREED that: (1) Employer/Carrier  shall  pay  to  Claimant  compensation  for  temporary total  disability  benefits  from  May  30,  2007  and  continuing  based  on  an  average weekly wage of $852.61;   (2) Employer/Carrier  shall  pay  or  reimburse  Claimant  for  all  Section  7 reasonable    and    necessary    past    and    future    medical    expenses    resulting    from Claimantfs back, right shoulder and right knee injuries  of May 15, 2007; (3) Employer/Carrier  shall  be   entitled   to   a  credit   for   all  payments   of compensation previously made to Claimant;   (4) Employer/Carrier    shall    pay    interest    on    all    of    the    above    sums determined  to  be  in  arrears  as  of  the  date  of  service  of  this  ORDER  at  a  rate provided by in 28 U.S.C. 1961; (5) Claimantfs  counsel  shall  have  twenty   days   from   receipt   of   this ORDER in which to file a fully supported attorney fee petition and simultaneously to serve a copy on opposing counsel.  Thereafter, Employer/Carrier shall have ten (10) days from receipt of the fee petition in which to file a response; (6) All  computations  of  benefits  and  other  calculations  which  may  be provided  for  in  this  ORDER  are  subject  to  verification  and  adjustment  by  the District Director.   Entered this 17th day of July, 2008, at Covington, Louisiana. A C. RICHARD AVERY Administrative Law Judge