Andrus v. Service Employees International (ALJ 2011)

8/9/2019 Andrus v. Service Employees International (ALJ 2011)

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DECISIONANDORDERDENYINGBENEFITS

This is a claim for benefits under the Longshore and Harbor Workers Compensation Act(the Act), as amended, 33 U.S.C. 901, et seq., as extended by the Defense Base Act, 42 U.S.C.

1651, et seq., brought by James T. Andrus (Claimant), against Service Employers

International, Inc., (Employer) and Insurance Co. of the State of Pennsylvania c/o ChartisWorldsource (Carrier).

The issues raised by the parties could not be resolved administratively, thus the matter

was referred to the Office of Administrative Law Judges for hearing. A formal hearing was heldon October 11, 2011, in Houston, Texas. All Parties were afforded a full opportunity to adduce

testimony, offer documentary evidence, and submit post-hearing briefs. One Joint Exhibit (JX),

thirteen Claimant Exhibits (CX), and twenty-five Employer/Carrier Exhibits (EX)1were offered

and admitted into evidence. Additionally, the Court received post-hearing briefs from Claimantand Employer/Carrier. This decision is rendered after careful consideration of the record as a

whole, the arguments of the parties, and the applicable law.

I. STIPULATIONS

The parties stipulated (JX-1), and I find that:

(1) The date of the injury is June 13, 2010;

(2) There was an Employer/Employee relationship at the time of the accident;

(3) Employer was advised of the injury on June 14, 2010;

(4)

The Notice of Controversion was filed on July 14, 2010;

(5) The Informal Conference was held on February 23, 2011; and

(6) Benefits and medical benefits have not been paid at this time.

II. ISSUES

The following issues remain in dispute:

(1) Causation of the injury;

(2) Nature and extent of Claimants disability;

(3) Claimants eligibility to receive Section 7 benefits, including reimbursement;

1Employers Exhibits 24 and 27 were withdrawn at the hearing, as well as any references to Dr. Reas report in

Employers Exhibit 25.


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(4) Claimants average weekly wage at the time of the injury; and

(5) Attorneys fees and expenses.

III. SUMMARY

Claimant alleges that he has suffered an exacerbation of his asthma and COPD inconjunction with his employment with Employer. Claimant has worked overseas for Employer

periodically since 2004. In January 2010, Claimant returned to Baghdad, Iraq to work as a

reverse-osmosis water-processing unit operator. On June 13, 2010, Claimant had a severeepisode of shortness of breath. He had to be taken to the medic and did not return to work after

the event. Claimant was sent to a hospital in Dubai for treatment, and then returned to the U.S.

for treatment.

Claimant has only worked doing side jobs for friends and family since returning to the

U.S. Claimant seeks to recover temporary total disability beginning the date he first missed work

with Employer to the date he began earning money doing side work in 2011. While he contendshis condition is improving, he does not believe he has reached maximum medical improvement.

IV. STATEMENT OF THE CASE

A. Claimants Testimony

Claimant was born in Ranger, Texas and grew up in Freeport, Texas. (Tr. 13). Hedropped out of high school before finishing the 11

th grade. He has worked overseas for about

four years, not including time off between tours. (Tr. 14). Claimant has suffered with asthma

and breathing problems from a young age, well before he began going to work in Iraq. (Tr. 14).

Employer was aware of this condition. Claimant first spent two years and five months in Iraqworking as an electrician and labor foreman. (Tr. 14-15). Then, he returned for 14 months

doing work as an ice plant operator. In January 2010, he returned to Iraq to work as a reverse-

osmosis water-processing unit operator. Claimant worked for about four months, took twoweeks of R&R, and then got sick ten days after returning to Iraq.

Claimant explained the talcum powder-like dust that was ever-present in Iraq. (Tr. 16).He stated he started to have increased breathing problems about two months after arriving in Iraq

in 2010. (Tr. 17). Claimant testified that his normal asthmagot worse. Claimant testified to

an incident prior to his period of R&R in April 2010, whereby he was walking to the DEFAC

and became so short of breath that he had to get on his hands and knees. (Tr. 17). He was ableto flag down a security guard who took him to the medic. (Tr. 18). There, he was given oxygen,

steroids, and breathing treatments. Claimant attributes that incident to an event from earlier that

morning; seven mortars had hit close to the office, which Claimant alleged had caused the

spores [to] spread all around in the office. (Tr. 19).

Claimant testified regarding a second incident which occurred on June 13, 2010, after he

returned from his period of R&R. (Tr. 18).2 Claimant stated that new wiring was being installed

2This event is also summarized by Claimant in an attachment to his Claim for Compensation forms (CX-2). This


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that night in his office for a new air conditioner; he believes this work stirred up the mold spores

and there was dust all everywhere. (Tr. 18-19, 38). Claimant testified that they had put

rubber up in the rafters to contain the spores. (Tr. 39). At the end of working a twelve-hourshift on June 13, 2010, Claimant stated he went outside to shut everything off, but he could not

walk the distance needed to get to the tank. (Tr. 21). He tried for a while to use his inhalers, but

he was unsuccessful. Claimant stated he became lightheaded and called for assistance. (Tr. 21-22). Claimant spent the night in the medics office and did not go to work the next day. (Tr. 22).He did not work for the following four days, hoping to recover enough to return to work. When

Claimant did not recuperate, he was sent to Dubai for treatment. (Tr. 23).

After about a week, Claimant returned home to the U.S. (Tr. 23). He stated that when he

returned home his infection worsened for about four months because of the toxin[s] building

up. (Tr. 24). Claimant testified that he believed he had a mold or fungus infection in June

2010. (Tr. 25). He stated he had used his inhalers for shortness of breath earlier in the day of theincident, as he normally would because of his asthma. (Tr. 27-29). Claimant testified that he

used his inhalers more often in Iraq than he does in the U.S., and has been using inhalers since

1998 or 2000. (Tr. 28).

Claimant testified that he does not know if he is allergic to Baghdad dust. (Tr. 31).

However, he did note that the Baghdad dust in his office contributed to the breathing problems

he had that day. (Tr. 34). He managed to make it to four years, there prior to this June 2010attack. Claimant stated it is common for workers to get bronchial infection when they first come

to work in Baghdad. (Tr. 31). Claimant explained that his asthma steadily declined during his

third period of working overseas. (Tr. 34). He attributes this to the mold spores in the officewhere he worked. (Tr. 34). Claimant contends the office building had been condemned due to

the presence of mold several years before he started working there. (Tr. 37).

Prior to the June 13, 2010 incident, Claimant had been hospitalized during his R&R inBangkok Hospital in Pattaya, Thailand. (Tr. 40-41). Claimant testified that he went to the

hospital because of anxiety he believed was caused by a stir-up of the toxinshe was exposed to

in his office in Iraq. However, he acknowledged that the medical records from the hospital donot indicate this, but rather show he had a chest or bronchial infection. (Tr. 41).

When Claimant returned to the U.S., a doctor in Florida recommended Cholestryamine,which Claimant says pulled the toxins out, to the point where I didnt have to go back into the

hospital. (Tr. 45). A doctor in Dallas later prescribed Sporax and Amphotericin B, two

antifungals.3 Claimant testified that about two weeks after he started taking these medications,

he started getting better. Prior to that he had gone to the emergency room (ER) several times.Claimant testified that he believes he had toxic mold growing in his lungs, which was

contributing to his breathing problems and releasing poisonous toxins into his body. (Tr. 46).

He stated that once his toxin levels went down, his other symptoms such as skin crawling and

anxiety went away. (Tr. 47).

statement was referred to by counsel to prompt the Claimants testimony . (Tr. 16).3The prescriptions for these medications are not represented in the record, except in Claimants testimony. It is not

recorded which doctor prescribed these medications.


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In 2002 and 2003, Claimant went to the ER of UTMB several times. (Tr. 51). Claimant

states this was because there was mold in his house, and as a result, toxins were building up in

his system causing increased heart beat, skin crawling, shortness of breath, and anxiety. (Tr. 52).He also was admitted to a Houston hospital for an unrelated bronchial infection in 2004 prior to

going overseas with Employer. (Tr. 52).

Claimant testified that he went to Thailand for a month after each tour in Iraq to see hisgirlfriend. (Tr. 55). He took two weeks of R&R and went to Thailand after having worked four

months of his third tour in 2010. Claimant stated that he had a deep tissue massage in Thailand

after his pre-R&R attack. (Tr. 58). He stated that the next day the toxins [began] movingthrough my system, and it hit me. Claimant believed he was having a heart attack at the time

and went to the hospital in Pattaya; the heart tests performed showed that his heart was fine. (Tr.

59). He did testify that he had been drinking that night and the night before, pretty much

partying, you know, pretty rough. (Tr. 60).

About a week or two after Claimant returned to the U.S., he saw Dr. Brian Walker on

July 15, 2010. (Tr. 57, 65, 75). The day before his appointment, he began experiencingshortness of breath and had to have the paramedics give him oxygen in his hotel. (Tr. 65). Dr.

Walker prescribed Spiriva, Albuterol, Prednisone, and a nebulizer. (Tr. 66). Claimant testified

that he asked Dr. Walker to do a culture for mold, but the doctor never complied. (Tr. 68, 73).

However, Claimant agreed that even if Dr. Walker had done a mold culture, mold from the U.S.could have caused a positive result. (Tr. 75). Dr. Walker wanted Claimant to have a

bronchoscopy to determine what was causing the infection in his lungs, but Claimant stated he

could not afford it. (Tr. 82-83). On October 6, 2010, Dr. Oandasan did a sputum culture; againClaimant stated he had requested a mold culture, but the doctor did not comply. (Tr. 85). Dr.

Oandasan prescribed Claimant an antibiotic, but he testified it did not help the stuff in my

lung. (Tr. 86).

Claimant was also treated at the Sweeny Hospital on four occasions. (Tr. 90). The first

time he presented to the ER, a chest x-ray and sputum culture were performed. (Tr. 90). The

discharge diagnosis was acute bronchitis. On the second ER visit, the discharge diagnosis wasanxiety and panic attack, COPD. (Tr. 92). Claimant was given a prescription for medication

to treat his anxiety. However, Claimant continued to maintain that the symptoms of anxiety and

panic attacks were caused by the toxins from the mold he believed was growing in his lungs.(Tr. 93-94). Claimant was admitted to the ER again in February 2011. (Tr. 94). The diagnosis

was dyspnea, COPD, and anxiety disorder. Claimants last visit to the Sweeny Hospital ER was

February 21, 2011. (Tr. 95).

On his final visit to the Sweeney Hospital ER, the doctor recorded that Claimants chief

complaint was toxic mold disease and had described a government cover-up to the ER doctor.

(Tr. 97). Claimant clarified at the hearing that he believed the doctors who treated him in Dubai

were trying to cover-up his mold sickness. (Tr. 98). Claimant testified that the ER doctor hesaw in Dubai said she would have to admit him to the hospital if he really did have mold in his

lungs. However, Claimant chose to have his sinus MRI first and stated he told the ER doctor he

would return to be admitted. (Tr. 98-99). Claimant stated that when he returned after his MRI,


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three other doctors prevented him from speaking with his original ER doctor in Dubai. (Tr. 100-

101).

Claimant stated he spoke on the phone with Dr. Mary Short Ray in Florida about hissymptoms; however, she never examined Claimant. (Tr. 95, 116). Claimant stated she

recommended Claimant have a doctor prescribe Cholestyramine to treat these symptoms. Dr.

Oandasan prescribed the medication, and Claimant testified he started feeling better. (Tr. 96).Claimant acknowledged that it is a medication ordinarily prescribed to treat high cholesterol.

Claimant stated that he did not believe Carrier had sent him to any doctors. (Tr. 101-

102). He also stated that Carrier did not select any of the doctors involved in his care. Claimanttestified that he believes he is physically able to go back to work in Iraq, however, he does not

know if a doctor would clear him to go. (Tr. 103-104). Claimant stated that in May 2011 he

started getting his strength back. (Tr. 104-105). At that time, Claimant worked for a few weeks

wiring a new construction home and a barn with the assistance of a family member. (Tr. 105,110). He also completed some plumbing work at the new home, did some mechanic work on

family members cars, and cut and removed a tree that had fallen in the pasture of his sisters

property where he is living. (Tr. 106-107, 110-111). He stated that he is not able to do work atthe same pace he worked before June 13, 2010. (Tr. 136). Claimant has not applied for any jobs

since May 2011. (Tr. 113). Claimant stated he would like to go back to work overseas. (Tr.

114).

Claimant testified that some of his asthma triggers are cilantro, certain paints, boxed

elder, and the smell of fiberglass. (Tr. 71-72). He has never done allergy testing, though. (Tr.

71). He has had asthma most of his adult life and possibly earlier than that, however, he couldnot remember when he was diagnosed. (Tr. 72). Claimant believes that there are mold spores

everywhere, and stated that the concentration of the spores is what determines whether they will

make one sick. (Tr. 62).

Currently, Claimant is taking Benadryl and Mucinex every day to keep [his] nose

opened up. (Tr. 108). Claimant alternates Mucinex with Distane and Vicks. For his asthma he

is taking Pulmicort. (Tr. 108).

A list of symptoms of mold sickness was posted on a website Claimant found.4 (Tr. 117).

Claimant identified the symptoms he has experienced: muscle pain, cramps in his legs, painshooting in his eyes, headaches, fatigue, weakness, flu-like symptoms, fever, chills, shortness of

breath, chronic sinusitis, burning in his eyes, difficulty with thought processes, memory loss, loss

of concentration, confusion, disorientation, dizziness, balance problems, metallic taste in mouth,

tingling, chest pains, panic attacks, tremors, tinnitus, chronic fatigue, bruising, nosebleeds, hairloss, irregular heartbeats, muscle twitching, (Tr. 117-123).

Claimant confirmed that the company clinic medic took him off work and told him he

required bed rest; he has not returned to work for Employer since then. (Tr. 125). The diagnosisof the company doctors was post-asthma exacerbation and they sent Claimant to Dubai for

treatment. (Tr. 126). The doctor in Dubai, Dr. Gabroun, believed that Claimant suffered an

4See EX-18, p. 155.


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exacerbation of his chronic pulmonary condition. (Tr. 126). Claimant testified that Dr. Gabroun

sent him home for evaluation, and therefore, he could not work. Claimant reiterated that he

believes toxic mold in his work environment in Iraq exacerbated his pulmonary condition. (Tr.127-128). He stated he has not been around talcum-like dust, nor has he been exposed to high

quantities of mold since he has returned home. (Tr. 128-129). Claimant testified that his

condition worsened as the infection spread in his lung after returning home, but he stated hestarted feeling better after he began taking the antifungal medications. (Tr. 129). Claimant nolonger has health insurance and has been paying for his medical expenses out of pocket, which

he states has limited him in the care he has been able to obtain. (Tr. 133).

B. Medical Evidence

a. Relevant M edical Records1975 to 2003

The medical records submitted extend back to 1975. (EX-23).5 There was no mention of

Claimants asthma until 1979, when Claimant presented to UTMB for injuries sustained in a

motor vehicle accident. (EX-23, p. 17). It was noted that Claimant was a two-and-a-half tothree-pack-a-day smoker at that time. (EX-23, p. 28). It was also recorded that Claimant had

asthma as a child, but was not suffering from any symptoms at the time. (EX-23, p. 38). In

1993, Claimants recorded medical history stated occasional asthma attacks, for which he uses

Primatene mist. (EX-23, p. 236). On February 4, 1994, Claimant complained to a UTMBpulmonary specialist about a productive cough and thick green sputum. (EX-23, p. 187).

Between December 8, 2002, and February 28, 2003, Claimant presented to the UTMBclinic eight times with various combinations of complaints of skin crawling, anxiety, shortness of

breath, chronic cough, and green or yellow sputum. (EX-23, pp. 93-124, 144-146). Claimants

symptoms were reportedly not improving during this period. His medical histories identified

COPD, asthma, anxiety, and bronchitis. On February 21, 2003, the physician diagnosedClaimant with mild COPD exacerbation and bronchitis. (EX-23, p. 97).

On July 20, 2003, Claimant presented to the ER at UTMB for a rash. (EX-23, p. 80). Atthat time, Claimant was only using an Albuterol inhaler, and his medical history noted asthma

and bronchitis. (EX-23, p. 81). On July 6, 2003, Claimant presented to the ER at UTMB with

complaints of shortness of breath and chest pains. (EX-23, pp. 85-92, 140). A history of usingchewing tobacco was noted. (EX-23, p. 85). The records also noted Claimant was obsessed

with coumadin dust that has penetrated every aspect of his life (EX-23, p. 88).

b. Relevant M edical Records2004 to Present

Self-completed forms from Claimants personnel file indicates he revealed to Employer

on August 25, 2004, and January 21, 2008, that he had asthma, and at those times he was taking

Albuterol, Combvient, and Advair. (CX-10, pp. 2, 4). Medical records from December 2, 2009,show Claimant was on several medications for treatment of his asthma. (CX-1, pp. 1-5). On

May 25, 2010, Claimant was prescribed a Seretide Accuhaler from the Phyatahi I Hospital. (CX-

1, p. 6). On May 29, 2010, Claimant was examined by Dr. Kitti Nakjuntuk at the Bangkok

5With EX-23, page numbers refer to the medical records internal pagination.


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Hospital in Pattaya, Thailand during his R&R. (CX-1, p. 7). Claimant was diagnosed with an

upper respiratory tract infection and chest pain. On May 30, 2010, tests were performed on

Claimants heart with good results. (CX-1, p. 10).

The record includes a summary of entries from Claimants visits to the company clinic

during his employment, dating back to March 20, 2006. (EX-11, p. 1). On April 1, 2010,Claimant reported shortness of breath. On June 13, 2010, the date of Claimants last episodeduring his employment, it is noted that Claimant complained of difficulty breathingstates he

was unable to obtain a full breath, enable adequate pulmonary inflation or emptying. On June

15, 2010, Claimant presented for a follow-up for asthma exacerbation, and he was givenanother sick slip to rest the following day. (EX-11, p. 1).

After Claimants workplace incident on June 13, 2010, Claimant was admitted to the

Canadian Specialist Hospital in Dubai on June 21, 2010. (CX-1, p. 13). A CT of Claimantschest showed bronchial thickening and some hyperinflation of both lungs; scars from previous

infective episodes were evident. A sputum culture performed showed no pathogens isolated after

48 hours. (CX-1, p. 17). A chest x-ray from June 22, 2010, showed that both lungs were clear.(CX-1, p.15). Claimant was discharged on July 1, 2010, with a chest infection and known

bronchial asthma. (CX-1, p. 20). Regular follow-up by a chest physician was recommended.

The Fit to Fly Recommendations form completed by Dr. Ahmed Tayser Gabroun, a

cardiologist with Canadian Specialist Hospital, identified Claimants discharge diagnosis asexacerbation of his COPD. (CX-6, p. 2).

On July 15, 2010, Claimant presented to Dr. Brian Walker, a pulmonary physician in theU.S. (CX-1, p. 21).

6 His records note Claimant quit smoking 15 years prior, but had smoked 18

years before that. (CX-1, p. 26). Claimant complained of a cough, yellow/green phlegm,

shortness of breath, and wheezing. Dr. Walkers impression was that Claimants asthma was

poorly controlled. (CX-1, p. 27). Dr. Walker conducted a spirometry which revealed severeobstruction. Lung volumes show trapping. (CX-1, p. 23). He prescribed a nebulizer and

prednisone and ordered a bronchoscopy, which was later cancelled by Claimant. (CX-1, pp. 27-

28, 32). On August 8, 2010, Dr. Walker ordered a sputum culture and fungal smear. (CX-1, p.34). The fungal stain showed budding yeast with pseudohyphae seen, and the sputum culture

showed growth of normal oropharyngeal flora. (CX-1, p. 36). After treating Claimant for

about a month, Dr. Walker withdrew as his physician on August 12, 2010. (CX-1, p. 39).

Claimant presented to Dr. Oscar C. Oandasan complaining of shortness of breath on

August 9, 2010; he told Dr. Oandasan that he had a fungus infection. (CX-1, p. 40).7 On

October 11, 2010, Dr. Oandasan performed a sputum culture, with no remarkable results. (CX-1,p. 41). He ordered a sputum culture for fungus on October 26, 2010, but the results were not

indicated. (CX-1, p. 42). Claimant contacted Dr. Mary Short Ray, creator of the website

www.toxic-black-mold-syndrome.com. (EX-18, p. 16). In her form letter to Claimant on

November 2, 2010, Dr. Short Ray suggested Claimant find a doctor to prescribe Cholestyramine

6These records are also represented in EX-7, EX-9, and EX-16.

7These records are also represented in EX-6.


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for treatment of mold sickness. On November 3, 2010, Dr. Oandasan prescribed

Cholestryamine, and on November 15, 2010, Claimant reported it was helping. (CX-1, p. 42).

Claimants last appointment with Dr. Oandasan was on January 10, 2011. (CX-1, p. 56). Onthat date, he prescribed Doxycycline, Spiriva, Prednisone, and Promethazine to Claimant. (CX-

1, p. 56).

On November 2, 2010, Claimant presented to the ER of Sweeny Community Hospital.(CX-1, p. 46).

8 Claimant complained of shortness of breath due to mold exposure. The doctor

diagnosed him with dyspnea and viral bronchitis. (CX-1, p. 47). The sputum culture performed

showed normal flora after 48 hours. (CX-1, p. 52). On January 24, 2011, Claimant returned tothe ER. (CX-1, p. 57). Again, he complained of shortness of breath due to mold in his lungs.

(CX-1, p. 59). He was diagnosed with dyspnea and social anxiety disorder; the chest x-ray

showed Claimants COPD. (CX-1, p. 61). On February 2, 2011, Claimant presented to the ER

again. (CX-1, p. 63). He complained about mold exposure causing chest pains, shortness ofbreath, and anxiety. The record also noted that Claimant had a long drawn-out story about mold

exposure and government cover-up. He was diagnosed with anxiety and bronchospasm. (CX-

1, p. 64). Claimant returned to the ER on February 5, 2011. (CX-1, p. 67). He felt his lung washeavy and asked the doctor if he could smell fungus on his breath. A chest x-ray was

performed and showed slight ground glass opacity related to alveolitis/exacerbation of chronic

obstructive pulmonary disease. (CX-1, p. 71). Upon discharge, Claimant was diagnosed with

dyspnea, COPD-acute exacerbation, and anxiety disorder. (CX-1, pp. 68, 71). With eachdischarge, Claimant was given more information regarding the conditions he was diagnosed

with, along with prescriptions to help control his symptoms.

At the request of Employer/Carrier, Dr. Marc T. Taylor, board certified in plastic surgery

and otolaryngology, reviewed Claimants medical recordsdating back to 1975. (EX-25). Dr.

Taylor also referenced and considered a report published by the Texas Medical Associations

task force on mold exposure. (EX-25, p. 3). In his report from October 9, 2011, Dr. Tayloropined that there is no evidence of any work-related disease or work-related diagnosis, despite

Claimants medical problems secondary to his self-reported mold exposure. (EX-25, p. 1). Dr.

Taylor noted that medical records from 1993 recorded Claimants complaints of shortness ofbreath, productive cough, and occasional asthma attacks since childhood. Additionally,

Claimants medical records show that he smoked and chewed tobacco for many years; he was

still chewing tobacco when he was in Dubai for treatment. (Tr. 60). Despite the many trips tothe ER in 2002-2003, Dr. Taylor noted that none of the medical recordsdocument any acute

abnormality to explain [Claimants] complaints of acute shortness of breath. (EX-25, p. 2). Dr.

Taylor classified Claimants asthma and COPD as diseases of life and attributed Claimants

chronic smoking to these conditions. Dr. Taylor concluded that there was not any recentchange in [Claimants] complaints or medical condition or any evidence of any work-related

disease from any mold exposure or work related event. (EX-25, p. 2).

C. Other Evidence

On January 20, 2003, Claimant wrote a four-page report on the problems he was having

with dust in his home, the decline in his health since moving there, and the symptoms he was

8These records are also represented in EX-8, EX-18.


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then experiencing. (EX-23, pp. 172-175). Claimant explained that he found his symptoms

resemble the symptoms described for toxic mold sickness that he found on the internet. (EX-23,

p. 175). The purpose of this narrative is unclear. Anita Gilbert, a claims adjuster, reported onJuly 14, 2010 that Claimants claim for his June13, 2010 episode was denied. (EX-11, p. 5). In

light of the medical records examined, Ms. Gilbert concluded Claimant did not suffer a work

related injury but rather a personal medical condition that requires ongoing care. (EX-11, pp.5-6). Ms. Gilberts files also indicate that no mold was found in Claimants workplace after duediligence was completed. (EX-13, p. 1). In a record of a conversation with Claimant on August

3, 2010, Ms. Gilbert noted Claimant stated, the doctor he is seeing hasnt related this to his job

but he knows it is. (EX-13, p. 8).

A Freedom of Information Act request was made to the Department of the Army

regarding records referencing 1) condemnation of Claimants office building in Baghdad, Iraq,

and 2) any mold audit reports of Claimants office building in Baghdad, Iraq. (EX-10, p. 1). OnJuly 25, 2011, Mr. Jeremy Becker-Welts, Assistant District Counsel for the Middle East District,

responded to the request and noted that no records could be found regarding these matters.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

It has been consistently held that the Act must be construed liberally in favor of the

claimant. Voris v. Eikel, 346 U.S. 328, 333 (1953); J.B. Vozzolo, Inc. v. Britton, 377 F.2d 144(D.C. Cir. 1967). However, the United States Supreme Court has determined that the true-

doubt rule, resolving factual doubt in favor of the claimant when the evidence is evenly

balanced, violates Section 7(c) of the Administrative Procedure Act, 5 U.S.C. 556(d), whichspecifies that the proponent of a rule or position has the burden of proof. Director, OWCP v.

Greenwich Collieries, 512 U.S. 267 (1994), affg990 F.2d 730 (3d Cir. 1993).

A. Credibility

I have considered and evaluated the rationality and internal consistency of the testimony

of all witnesses, including the manner in which the testimony supports or detracts from the otherrecord evidence. In so doing, I have taken into account all relevant, probative, and available

evidence while analyzing and assessing its cumulative impact on the record. See, e.g.,Ind. Metal

Prods. v. Natl Labor Relations Bd., 442 F.2d 46, 52 (7th Cir. 1971). An administrative lawjudge is not bound to believe the entirety of a witnesss testimony but may choose to believe

only certain portions of such. See Altemose Constr. Co. v. Natl Labor Relations Bd., 514 F.2d

8, 15 n.5 (3d Cir. 1975).

The credibility findings are based upon a review of the entire testimonial record and

associated exhibits, taking into account all record evidence and demeanor of the witnesses.

Probative weight has been given to the testimony of all witnesses found to be credible. In

particular, I find Claimant to be a credible witness, although much of his testimony is based onspeculation.


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B. Causation

Section 2(2) of the Act defines injury as accidental injury or death arising out of andin the course of employment . . . . 33 U.S.C. 902(2). Section 20(a) of the Act provides the

claimant with a presumption that her disabling condition is causally related to her employment.Before the Section 20(a) presumption may be invoked, the claimant must establish a prima faciecase of a compensable injury. Murphy v. SCA/Shayne Bros., 7 BRBS 309 (1977).

a. Claimants Prima Facie Case

The claimant must establish a prima facie case by proving that: (1) she suffered some

harm or pain and (2) an accident occurred or working conditions existed that could have caused

the harm. Kelaita v. Triple A Mach. Shop, 13 BRBS 326 (1981). It is the claimants burden to

establish each element of her prima facie case by affirmative proof. See Kooley v. MarineIndustries Northwest, 22 BRBS 142 (1989).

The first prong of the prima facie case requires the court to determine whether theclaimant has in fact suffered an injury. The claimant has sustained an injury where she has

some harm or pain, or if something unexpectedly goes wrong within the human frame.

Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (en banc). The claimants burden doesnot include establishing an injury as defined in Section 2(2) of the Act. To place such a burden

on the claimant would be contrary to the well-established rule that the Section 20(a) presumption

applies to the issue of whether an injury arose out of and in the course of employment. Kelaita,

13 BRBS at 329.

The second prong of the prima facie case requires the court to determine whether the

employment events claimed as a cause of the harm sustained by the claimant in fact occurred.

Sewell v. Noncommissioned Officers Open Mess, 32 BRBS 127 (1997), recons. denied en banc,

32 BRBS 127 (1998) (invoking the presumption by showing that working conditions resulted in

stress which could have caused industrial psychological injury).

In this instance, Claimant has failed to successfully invoke the Section 20(a) presumption

of causation. The parties do not dispute that Claimant has suffered with asthma and COPD for

many years prior to his employment with Employer. Claimant pointed to several factors in hisworkplace environment in Iraq that he believes have exacerbated these health conditions. He

explained the fine Baghdad dust that was easily stirred up and settled everywhere; Claimant

mentioned the renovations in his office in Iraq, which he stated were stirring up dust; and

Claimant alleged that the building where he worked was condemned prior to beginning his workthere. No evidence has been presented showing that the building where Claimant worked ever

was condemned or linking Claimants symptoms to these other workplace conditions he was

concerned about.

The foremost cause Claimant asserted time and again was that there was an abundance of

mold spores in the office building where he worked in Iraq. However, as Employer/Carrierpointed out, Claimant has not provided any evidence beyond his own assertions that there was a


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Bangkok, Thailand for about two weeks prior to the June 13, 2010 episode in Bagdad, Iraq.

While there, he reported to the hospital because of anxiety and was diagnosed with an upper

respiratory tract infection and chest pain. Employer/Carrier contend that this shows Claimantssymptoms were triggered in Thailand and not Iraq. The symptoms described in all of these past

medical records are similar to those complained of on and after the June 13, 2010.

Employer/Carrier also rely on the medical records representing Claimants treatment afterhis episode on June 13, 2010, in Iraq to rebut the Section 20(a) presumption. All of the sputum

cultures performed in Dubai and the U.S. produced evidence of only normally present flora.

After June 13, 2010, Claimant sought medical treatment from the medics in Iraq; Dr. Gabroun inDubai; Drs. Walker and Oandasan; and presented to the Sweeny Community Hospital ER on

several occasions. While some of these doctors have labeled Claimants June 13, 2010 episode

as an exacerbation of his asthma or COPD, none have stated that such an exacerbation was

caused by a condition in Claimants workplace. Additionally, none of these doctors recordedanything in their diagnoses about mold poisoning, only Claimants self-reported exposure.

Furthermore, it remains uncertain whether Claimant is allergic to mold as he admitted he has

never had any allergy testing. Claimant did not present any evidence of exposure in Iraq to hisother self-reported allergy triggers, either.

Additionally, after reviewing Claimants medical records, Dr. Taylor indicated that there

was no causal connection between Claimants alleged work conditions and the symptomsClaimant experienced on June 13, 2010. Dr. Taylor classified Claimants asthma and COPD as

diseases of life. The fact that his asthma and COPD resulted in his episode of shortness of

breath on June 13, 2010, could merely be happenstance as he has suffered with these diseasesfrom a young age and likely did himself no favors by continuing to smoke and chew tobacco for

many years.

In light of the foregoing, I find Employer/Carrier have presented enough evidence to havesuccessfully rebutted the Section 20(a) presumption, if it had been invoked. No doctor has

concluded that Claimants exacerbatedasthma and COPD are related to his workplace conditions

in Iraq. This is a disease with symptoms he has suffered from and sought treatment for manyyears before he ever began working for Employer or began working overseas. The evidence

submitted by Employer/Carrier proves the absence of a connection between the symptoms

Claimant complains of and his employment.

c. Weighing the Evidence

If the employer meets this burden, he rebuts the Section 20(a) presumption, and theadministrative law judge must then weigh all the evidence and render a decision supported by

substantial evidence. Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir. 1986). Even

assuming arguendo the presumption was invoked and rebutted, upon weighing the evidence as a

whole, I find Claimant has not carried his burden of persuasion in this case.

Claimant argues that Dr. Taylor is merely a plastic surgeon with no training or special

knowledge of pulmonary conditions or infectious diseases, and thereby his opinion regardingcausation should not be given much weight in this case. Claimant further urges that Dr. Taylors


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opinion should not be strong enough sever the causal chain between Claimants condition and his

work conditions due to the fact that Dr. Taylor never examined Claimant. However, Dr. Taylor

is board certified in not only plastic surgery, but also has been board certified in otolaryngologyfor over 30 years. His CV presents extensive experience and credible qualifications. Although

Dr. Taylor did not personally examine Claimant, he had the benefit of reviewing Claimants

medical records extending back to 1975. Several other equally qualified doctors have examinedClaimant, and their records support Dr. Taylors conclusion as none of them have indicated thatthere is a correlation between Claimants June 13, 2010 episode and his working conditions. In

contrast, the only medical opinion Claimant has presented to explicitly support his case is that of

Dr. Mary Short Ray. The record includes no evidence of her credentials, and she neitherexamined Claimant nor reviewed his medical records. Therefore, I find that the evidence

presented weighs in favor of the Employer/Carrier

VI. CONCLUSION

The evidence presented fails to support Claimants arguments. No quantitative data is

provided to show in what amounts or how Claimant was exposed to toxic mold spores, if at all,in his workplace. No properly qualified expert or evidence concluded that mold exposure caused

Claimants episode on June 13, 2010. Claimants arguments rely heavily on his own

uncorroborated assertions and speculations. The evidence presented weighs in favor of

Employer/Carrier. Consequently, Claimants claim for benefits is DENIED.

So ORDERED.

A

Larry W. Price

Administrative Law Judge

Documents

Andrus v. Service Employees International (ALJ 2011)