Abdi v. Worldwide Language Resources, Inc.
| Decision Date | 08 January 2020 |
| Docket Number | BRB 19-0322 |
| Parties | ABDUL B. ABDI Claimant-Petitioner v. WORLDWIDE LANGUAGE RESOURCES, INCORPORATED and ACE AMERICAN INSURANCE COMPANY Employer/Carrier-Respondents |
| Court | Court of Appeals of Longshore Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Lee J. Romero, Jr. Administrative Law Judge, United States Department of Labor.
Abdul B. Abdi, Houston, Texas.
Alan G. Brackett and Derek O'Connor (Mouledoux, Bland, Legrand & Brackett, LLC), New Orleans, Louisiana, for employer/carrier.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appearing without counsel, appeals the Decision and Order (2017-LDA-00153) of Administrative Law Judge Lee J. Romero Jr., rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (the Act). In an appeal by an unrepresented claimant, the Board reviews the administrative law judge's findings of fact and conclusions of law to determine if they are rational, supported by substantial evidence, and in accordance with law. If they are, they must be affirmed. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
As a result of an improvised explosive device (IED) explosion in June 2011, claimant sustained injuries to his right eye, neck and back during the course of his work in Afghanistan. He subsequently filed a claim for benefits under the Act and, in a Decision and Order issued on June 3, 2014, the administrative law judge found that claimant established work-related injuries to his right eye, neck and back, but failed to establish any loss of wage-earning capacity as a result of those injuries. Consequently, the administrative law judge denied claimant's claim for disability benefits, but awarded all reasonable and necessary medical care for claimant's right eye, neck and back conditions. Both parties moved for reconsideration. The administrative law judge denied both motions in a decision dated October 2, 2014 and filed by the district director on October 7, 2014. These decisions were not appealed, and thus became final.
Sometime in 2015, claimant asserted to the district director that employer was not in compliance with the administrative law judge's award of medical benefits.[1] The district director first transferred the case to the Office of Administrative Law Judges (OALJ) on June 21, 2015. Subsequently, the case was remanded to the district director. After receiving Dr. Barrash's December 2, 2015, report, employer filed a request fo r modification of the administrative law judge's ongoing award of medical benefits based on a change in claimant's condition. The case was again transferred to the OALJ. Before the administrative law judge, claimant sought "enforcement" of the award of medicals benefits for his back and neck conditions, and, with regard to his right eye condition, reimbursement of medical costs at a rate higher than that set forth in the Office of Workers' Compensation (OWCP) Fee Schedule. He also claimed he is entitled to medical benefits for a new eye condition allegedly related to the work accident. Employer sought to terminate it s responsibility for ongoing medical care related to claimant's back and neck complaints, and contested the work-relatedness of new eye complaints.
In a Decision and Order issued March 7, 2019, the administrative law judge denied claimant's request that he "enforce the medical care provisions" of his initial Decision and Order and found claimant did not establish a new work-related injury to his right eye, but the administrative law judge determined that employer remains liable for medical charges related to claimant's initial right eye injury. The administrative law judge found, moreover, that as claimant's current back and neck complaints are not related to his work injury, and no additional medical care is necessary for his initial neck and back injuries, employer is no longer responsible for medical treatment for those conditions.
Claimant appeals the administrative law judge's decision. Employer filed a response brief, urging affirmance of the administrative law judge's decision. Claimant filed a reply letter to which he attached a Memorandum and Order from the United States District Court for the Southern District of Texas addressing the censure of employer's medical expert, Dr. Barrash, by the American Association of Neurological Surgeons.[2]
In his initial Decision and Order, the administrative law judge ordered employer to pay, pursuant to Section 7(a) of the Act, 33 U.S.C. §907(a), all reasonable, appropriate and necessary medical expenses for claimant's work-related right eye, neck and back injuries. Employer moved to terminate the award of medical benefits for claimant's back and neck conditions, contending that his current symptoms, if any, are unrelated to the IED incident. In addition, claimant sought to hold employer liable for medical treatment for additional right eye symptoms.
Initially, we observe that although employer termed its claim to terminate the award of medical benefits a "motion for modification" under Section 22 of the Act, 33 U.S.C. §922, any request for modification was not timely filed with respect to the denial of the claim for compensation. A motion for modification must be filed within one year of the last payment of compensation or the denial of the claim, whichever is later. Alexander v. Avondale Industries, Inc., 36 BRBS 142 (2002). The administrative law judge finally denied the claim for compensation in a decision dated October 2, 2014, which was filed by the district director on October 7, 2014, and employer did not file its request to terminate liability for medical benefits until sometime after receiving Dr. Barrash's December 2, 2015, report. The payment of medical benefits does not extend the time for filing a motion for modification because medical benefits are not "compensation" within the meaning of Section 22. Wheeler v. Newport News Shipbuilding & Dry Dock Co., 637 F.3d 280, 45 BRBS 9(CRT) (4th Cir.), cert. denied, 565 U.S. 1058 (2011). Nevertheless, because a claim for medical benefits is never time barred, Siler v. Dillingham Ship Repair, 28 BRBS 38 (1994) (en banc), the parties retain the abilit y to "further litigat[e] the propriety or reasonableness of any specific medical expense" following the entry of a general award of medical benefits, as in this case.[3] Bath Iron Works Corp. v. Preston, 380 F.3d 597, 610, 38 BRBS 60, 69(CRT) (1st Cir. 2004). Similarly, claimant's claim for medical benefits for new eye symptoms is not barred by any statute of limitations or similar restriction. Siler, 28 BRBS 38.
Employer, as the proponent for a change, bore the burden of establishing that claimant no longer requires medical treatment for his neck or back conditions. See Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994). In support of its contention, employer offered the opinion of Dr. Barrash.[4] Dr. Barrash examined claimant on December 2, 2015, and opined that claimant's back and neck complaints cannot be verified either through imaging or physical examination, that any such complaints are unrelated to the work injury, and that no further medical treatment is necessary for claimant's neck or back.[5] See Tr. at 38 - 42; EX 2. Claimant did not provide any countervailing medical evidence, and the administrative law judge permissibly found his testimony concerning his physical complaints is not credible.[6] Decision and Order at 11, 20; see Bis Salamis, Inc. v. Director, OWCP [Meeks], 819 F.3d 116, 50 BRBS 29(CRT) (5th Cir. 2016). Thus, based on the uncontradicted opinion of Dr. Barrash that claimant's neck and back symptoms are not related to his work injury and do not require further medical treatment, the administrative law judge terminated the award of medical benefits for claimant's back and neck injuries. Id. at 21. As this finding is supported by substantial evidence, we affirm it.[7] See Victorian v. International-Matex Tank Terminals, 52 BRBS 35 (2018), aff'd sub nom. International-Matex Tank Terminals v. Director, OWCP, 943 F.3d 278 (5th Cir. 2019).
Claimant alleged that in 2018 he developed blood in his right eye which is the eye injured in the work accident. Tr. at 29. Dr. Barrash examined claimant's right eye on December 2, 2015, and stated there was nothing wrong with it at that time. See EX 2. Thus, he stated that any new eye condition claimant complained of thereafter is unrelated to his June 12, 2011, work accident. Tr. at 40 - 41. Based on Dr. Barrash's opinion, the administrative law judge found that employer is not liable for medical treatment for any new symptoms, but remains liable for any treatment related to the original eye injury. Decision and Order at 20.
Although the administrative law judge did not discuss claimant's new eye symptom in terms of the Section 20(a), 33 U.S.C §920(a), presumption, any error in this regard is harmless. See generally Suarez v. Service Employees Int'l, Inc., 50 BRBS 33 (2016). Even assuming claimant is entitled to the Section 20(a) presumption relating his eye condition to his employment, the opinion of Dr. Barrash would rebut any presumed connection between the 2018 symptoms and the work accident, see Ceres Gulf, Inc. v. Director, OWCP [Plaisance], 683 F.3d 225, 46 BRBS 25(CRT) (5th Cir. 2012), and is sufficient to establish the absence of a causal relationship based on the record a whole. Bingham v. General Dynamics Corp., 20 BRBS 198 (1988). ...
To continue reading
Request your trial