Brady v. Tex. Terminal, LP

• Decision Date: 28 June 2022
• Docket Number: 21-0397
• Parties: KEVIN BRADY Claimant-Petitioner v. TEXAS TERMINAL, LP and SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD. Employer/Carrier-
• Court: Longshore Complaints Court of Appeals

KEVIN BRADY Claimant-Petitioner
v.
TEXAS TERMINAL, LP and SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD. Employer/Carrier-

No. 21-0397

Court of Appeals of Longshore

June 28, 2022

Appeal of the Decision and Order of Tracy A. Daly, Administrative Law Judge, United States Department of Labor.

Kevin Brady, Houston, Texas.

C. Douglas Wheat and Amanda N. Farley (Wheat, Opperman P.L.L.C.), Houston, Texas, for Employer/Carrier.

Before: ROLFE, GRESH and JONES, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Claimant, without representation, appeals Administrative Law Judge (ALJ) Tracy A. Daly's Decision and Order (2019-LHC-00624) rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (Act). On appeal, Claimant generally challenges the ALJ's denial of benefits; therefore, the Benefits Review Board addresses whether substantial evidence supports the Decision

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and Order below. See Pierce v. Elec. Boat Corp., 54 BRBS 27 (2020). In an appeal by a self-represented Claimant, we must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman &Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant, with a history of pre-existing multilevel degenerative disc disease,^[1]sustained a work-related back injury with Employer on May 15, 2017. He reported the injury to his supervisor that day but did not obtain treatment until Employer sent him for an evaluation at U.S. Healthworks Medical Group the next day. At that time, Dr. Jasmine Sardana diagnosed Claimant with a "contusion of back wall of thorax." EX 7. She ordered a CT scan, advised Claimant to take over-the-counter medications, and released him to return to work, without restrictions, on May 16, 2017. Id. On that same day, Claimant was treated by Dr. David Hall at Cypress Fairbanks Medical Center Emergency Department (Cypress ER), who, after review of a thoracic spine CT scan, diagnosed Claimant with "mild subcutaneous stranding/bruising" of his upper back. EX 8.

On May 18, 2017, Claimant visited Dr. Scott Sims, a chiropractor, who diagnosed a sprain of the thorax and radiculopathy of the thoracic region. CX 2 at 31-33. Dr. Sims released Claimant from work activities "until further notice" and proposed a treatment plan, which was thereafter executed in fourteen additional visits through June 23, 2017. Id. at 32-47. Meanwhile, on June 6, 2017, Claimant visited Meridian Family Medical Associates, where he was seen by a nurse practitioner, Angel Smith, whose diagnoses included thoracic pain and muscle spasms, as well as a contusion and abrasion of the midback. CX 2 at 48-51. She prescribed Claimant pain medication and recommended six to eight weeks of physical therapy.^[2] Id. at 51. Claimant next visited Dr. Shahid Syed on July 3, 2017, who, in terms of Claimant's thoracic spine, diagnosed pain, segmental and somatic dysfunction, and disorder of the intervertebral disc. Id. at 58-59. Dr. Syed prescribed medication and ordered a CT scan. Id. at 59. He also stated Claimant could return to work with restrictions. Id. at 60.

On August 15, 2017, Dr. David G. Vanderweide, who examined Claimant at Employer's request, stated Claimant sustained an injury to the chest wall and posterior

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thoracic region consistent with his work incident. EX 10. Dr. Vanderweide opined Claimant "is fit to engage in modified activities, as he is doing now"^[3] and recommended restrictions of limited pushing/pulling, overhead reaching, and lifting/carrying more than 20 pounds. Id.; EX 17, Dep. at 17. He recommended physical therapy with someone knowledgeable in rehabilitating soft tissue injuries of the spine, after which he believed Claimant's condition would reach maximum medical improvement (MMI), and he would be fit to engage in unrestricted activities with no permanent impairment. Id. On May 1, 2018, after re-examining Claimant and reviewing his medical records, Dr. Vanderweide reiterated his prior diagnosis of a thoracic contusion attributable to Claimant's 2017 work incident. Id. at 3; EX 17, Dep. at 20. He further stated that given the passage of time since that incident, it is reasonable to expect Claimant's work injury should have completely resolved. Id. He therefore concluded within reasonable medical probability that Claimant reached MMI for his work injury and is fit to return to his previous activities without restriction. Id.

Claimant returned to the Cypress ER on February 27, May 22, and July 27, 2018, on January 9, March 21, and June 13, 2019, and again on February 4, 2020, with back and/or neck pain. At each visit, he was examined, consistently diagnosed with chronic back pain, and discharged, typically with a prescription(s) for medication and general "Patient Education Instructions" addressing his condition. CX 2 at 78-102.

Claimant was also treated by Dr. Khoa Pham on several occasions in 2019, who, in a form entitled Texas Health and Human Services Commission Medical Releases, indicated Claimant is unable to work due to permanent disability. CX 2 at 107-109, 122123. Dr. Pham listed Claimant's primary disability diagnosis as "thoracic disc herniation" and his secondary disability diagnosis as "chronic back pain." Id. He also referred Claimant to Emily Padgett for physical therapy, who assessed Claimant with chronic upper back pain and developed a treatment plan, which included providing Claimant with a walking cane. CX 2 at 113-115.

In terms of post-injury employment, Claimant returned to a modified full-time job as an escort with Employer on July 18, 2017, though he only sporadically reported for work. He explained he began vocational school on a full-time basis on August 28, 2017, which significantly limited his availability for work with Employer. Claimant last worked for Employer on September 28, 2017. EX 31, Dep. at 30-31. On November 15, 2017, Employer terminated Claimant for failure to work his assigned shifts. Id. Claimant subsequently worked part-time as a cook for a fast-food restaurant, James Coney Island

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(JCI), from May 3 until July 3, 2018, when JCI placed him on a medical leave of absence. JCI terminated his employment on October 4, 2018, for failing to return from the leave of absence. Claimant has not since applied for or held any job. EX 16, 56, 62; HT II at 120.

Claimant filed a claim seeking benefits for his work-related thoracic spine injury. Employer controverted the claim, and the case was forwarded to the Office of Administrative Law Judges for a formal hearing, which was conducted, in two separate parts, in Houston, Texas.

The ALJ found Claimant sustained a work-related thoracic back injury which precluded him from performing his usual employment from May 15, 2017, until May 1, 2018. He next found Employer met its burden of establishing the availability of suitable alternate employment through evidence that it had full-time modified escort work available to Claimant, within his post-accident restrictions^[4] and at his pre-injury hourly wage, from the date of his injury. Therefore, he concluded Claimant suffered no loss of wage-earning capacity from his work-related accident and is not entitled to any disability benefits. The ALJ then found Claimant entitled to medical benefits from May 15, 2017, until May 1, 2018, the date that his work injury reached MMI with no impairment or restrictions. This included a reimbursement totaling $383.27 for services rendered by Dr. Badu, who the ALJ found was Claimant's "free choice of treating physician." Decision and Order at 32. However, he denied Claimant's request for reimbursement of $52,176.33 in medical expenses, as the information provided was "insufficient" to establish those expenses were reasonable and necessary or represented charges by an authorized medical provider during the period of Claimant's disability. He also found Employer not liable for Claimant's chiropractic treatment with Dr. Sims, for medical expenses incurred at Cypress ER, or for any medical treatment he received after visiting Dr. Badu. In addition, the ALJ denied Claimant's reimbursement request of $14,300 in gasoline for travel purportedly associated with his medical treatment because Claimant "failed to provide evidentiary support" for those expenses. Accordingly, the ALJ awarded Claimant authorized medical benefits for the limited period of May 15, 2017, to May 1, 2018, but denied his claim for permanent total disability benefits.

Nature and Extent of Disability

Following an extensive review of the evidence of record, Decision and Order at 515, the ALJ set out the appropriate legal framework, id. at 15-18, accurately articulated the parties' positions, id. at 18-19, and then weighed the relevant evidence as it related to the

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nature and extent of Claimant's disability, id. at 18-22. A claimant's condition has reached MMI when he is no longer undergoing treatment with a view toward improving his work-related condition or that condition is of a lasting and indefinite duration and beyond a normal healing period. See Gulf Best Electric, Inc. v. Methe, 396 F.3d 601, 38 BRBS 99(CRT) (5th Cir. 2004); Louisiana Ins. Guaranty Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994); Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969); see also McCaskie v. Aalborg Ciserv Norfolk, Inc., 34 BRBS 9 (2000). The Board must affirm a finding of fact establishing the date of MMI if it is supported by substantial evidence. Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999); Mason v. Bender Welding &Machine Co., 16 BRBS 307 (1984). Thus, regarding the nature of Claimant's disability, the ALJ rationally credited, as well-reasoned and well-documented, the May 1, 2018 report of Dr. Vanderweide stating that "[w]ithin reasonable medical probability,"...