Opinion
4:19-CV-1745
02-28-2022
GEORGE N. GINDO, Plaintiff, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; AECOM TECHNOLOGY CORPORATION; AND CONTINENTAL INSURANCE COMPANY, Defendants.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Dena Hanovice Palermo, United States Magistrate Judge
Plaintiff George N. Gindo (“Plaintiff”) appeals the denial of worker's compensation benefits under the Longshore and Harbor Worker's Compensation Act (“LHWCA”), as extended in the Defense Base Act (“DBA”), for injuries resulting from his employment with Defendant AECOM Technology Corp. (“AECOM”) in warzone Iraq. See Pl.'s Petit. Judicial Rev., ECF No. 1. Plaintiff moves to vacate the denial of his claim and seeks remand, asserting inter alia that the Administrative Law Judge (“ALJ”) erred when he rejected the Parties' stipulation that Plaintiff was temporarily totally disabled without providing notice. Pl.'s Br., ECF No. 15 at 22. The ALJ implicitly rejected the Parties' stipulation and determined that Plaintiff had a permanent partial disability and was not yet entitled to compensation. ALJ Order, ECF No. 1-2 at 12 & n. 18. On appeal the Benefits Review Board (“BRB”) affirmed. BRB Order, ECF No. 1-2 at 28. On reconsideration, the BRB affirmed and stated that the stipulation could not have been accepted because it was an incorrect application of the law. BRB Reconsideration Order, ECF No. 1-2 at 32.
The matter was referred to this Court for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). Order, ECF No. 18.
This Court has jurisdiction over this claim pursuant to the DBA provision of the LHWCA. Under the DBA, “judicial proceeding provided under sections 18 and 21 of the LHWCA in respect to a compensation order made pursuant to this Act shall be instituted in the United States District Court of the judicial district wherein is located the office of the deputy commissioner whose compensation order is involved.” DBA § 3(b), 42 U.S.C. § 1653(b); AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1116 (5th Cir. 1991) (holding that judicial review of a BRB's DBA decision must begin in the judicial district wherein the office of the District Director who issued the initial order is located). Because Plaintiff's residence is in Illinois, the claim was referred to the Eighth Compensation District Office in Houston, Texas for administration. 20 C.F.R. §§ 702.102, 704.101. The Houston District Director served the ALJ's order on the parties. The BRB's final decision was issued in the Houston District. Therefore, this Court has jurisdiction over Plaintiff's claim. See 42 U.S.C. § 1653(b).
The Court reviews an appeal from the BRB in a two-step inquiry: first, whether the BRB applied the correct legal standard on appeal, and second, whether the BRB properly found that substantial evidence supported the ALJ's findings. Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003). Because the BRB applied the wrong legal standard when affirming the ALJ's rejection of the Parties' stipulation without providing notice, the Court recommends that the case be remanded.
I. LEGAL STANDARD FOR THE LHWCA AND THE DBA
The LHWCA “is a federal program to compensate maritime employees for on-the-job injuries leading to death or disability.” Gencarelle v. Gen. Dynamics Corp., 892 F.2d 173, 176 (2d Cir. 1989) (citing 33 U.S.C. § 903(a)). Injury is limited to accidents and occupational diseases arising out of employment. Id. (citing 33 U.S.C. § 902 (2)). Once an ALJ determines that a claim is covered, the next step is to define the injured worker's compensation. Under the LHWCA, compensation is calculated using the average weekly wage at the time of injury. 33 U.S.C. §§ 908(c); 910(a)-(c). The LHWCA provides compensation for four categories of disabilities: (1) permanent total disability, (2) temporary total disability, (3) permanent partial disability, and (4) temporary partial disability. 33 U.S.C. § 908(a)-(c), (e). Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 1042 (5th Cir. 1992).
A covered “injury” under the LHWCA is an:
The DBA extends and incorporates the LHWCA to provide federal workers' compensation coverage to employees working outside the continental United States, including on military bases. 42 U.S.C. § 1651(a). Thus, in a DBA case, once the ALJ determines that the claim is covered, he must determine the plaintiff's average weekly wage based on the category of disability under which the plaintiff falls. See e.g., Avondale Shipyards, 967 F.2d at 1042 (finding plaintiff suffered from a temporary total disability for part of his claim; a permanent total disability when he reached maximum medical improvement; and a permanent partial disability when he subsequently secured employment thereafter).
II. STANDARD OF REVIEW
The Court's review of an application for worker's compensation under the LHWCA and DBA presents a mixed question of law and fact. New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs, 718 F.3d 384, 387 (5th Cir. 2013) (en banc). The Court considers whether the BRB on appeal applied the correct legal standard in determining whether substantial evidence supports the ALJ's decision. The BRB must accept the findings of the ALJ “unless they are not supported by substantial evidence in the record considered as a whole or unless they are irrational.” Tarver v. Service Employees Intern., Inc., No. 4:11-1040, 2011 6957591, at *4 (S.D. Tex. Dec. 30, 2011) WL (quoting Port Cooper/T. Smith Stevedoring Co., Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000)). The BRB does not have authority “to engage in de novo review of the evidence or to substitute it views for those of the ALJ.” Chevron USA, Inc. v. Heavin, 204 Fed.Appx. 361, 363 (5th Cir. 2006).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotations omitted). Substantial evidence is “more than a scintilla but less than a preponderance.” Pool Co. v. Cooper, 274 F.3d 173, 178 (5th Cir. 2001). The “threshold for such evidentiary sufficiency is not high.” Biestek, 139 S.Ct. at 1154. The Court may not reweigh the evidence or substitute its judgment for the ALJ. Tarver, 2011 WL 6957591, at *4.
The Court's review of the BRB's decision is “limited in scope to considering errors of law and making certain that the BRB adhered to its statutory standard of review of factual determinations, that is, whether the ALJ's findings of fact are supported by substantial evidence and are consistent with law.” Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003) (internal quotations omitted). The Court reviews the BRB's legal conclusions de novo. Coastal Prod. Servs. v. Hudson, 555 F.3d 426, 429 (5th Cir. 2009); Equitable Equip. Co. v. Dir., OWCP, 191 F.3d 630, 632 (5th Cir. 1999) (“[The court] reviews the BRB's interpretation of the LHWCA, an issue of law, de novo, affording no special deference to the BRB's construction because it is not a policymaking agency.”). The Court must affirm if the ALJ's findings are supported by substantial evidence and are in accordance with the law. P & M Crane Co. v. Hayes, 930 F.2d 424, 428 (5th Cir. 1991).
III. THE ALJ REJECTED PART OF THE PARTIES' STIPULATIONS IN DENYING PLAINTIFF'S CLAIM.
Before the ALJ, Plaintiff sought workers' compensation based on psychiatric injuries suffered during his employment with AECOM as an advisor to the United States Army in Iraq. ALJ Order, ECF No. 1-2 at 3. Plaintiff experienced post-traumatic stress disorder (“PTSD”) and major depressive disorder when he returned from the warzone. Id. at 4; J. Ex. 12 at 173. Plaintiff alleged that his work with AECOM triggered these symptoms. ECF No. 1-2 at 4. AECOM conceded that Plaintiff “suffered work-related psychiatric harm and that [he] has been temporarily totally disabled since July 23, 2014.” Id. Before the ALJ, AECOM disputed benefits on two grounds: that Plaintiff failed to provide timely notice, and any compensation must be based on a lower amount than Plaintiff sought. Id. The Parties waived oral hearing, instead submitting stipulations of fact as well as joint and separate exhibits. Id.
The Parties submitted Joint Stipulations of Fact. ALJ's Decision & Order, ECF No. 1-2 at 3, n. 3. The stipulated facts include:
The parties submitted 17 joint exhibits (“J. Ex.” 1-17); Plaintiff submitted 14 exhibits independently (“P. Ex.” 1-14); AECOM submitted 38 exhibits independently (“D. Ex.” 1-38). ECF No. 1-2 at 3, n. 2.
The ALJ denied Plaintiff's claim as premature. ECF No. 1-2 at 16. Although the ALJ noted the Parties' stipulations, ECF No. 1-2 at 3-4, he implicitly rejected the stipulation that Plaintiff was temporarily totally disabled. Instead, the ALJ found Plaintiff was statutorily limited to permanent partial disability because he was a voluntary retiree with an occupational disease. ECF No. 1-2 at 12 (finding occupational disease), 12 n.18 (finding permanent partial disability), 14 (finding retirement voluntary). Under permanent partial disability, a claimant cannot receive compensation until he reaches maximum medical improvement. Id. at 15. Because the Parties stipulated that Plaintiff had not yet reached maximum medical improvement, the ALJ concluded that Plaintiff could not yet recover for the permanent partial disability. Id.
Maximum medical improvement is reached when an injury has received “the maximum benefit of treatment such that the patient's condition will not improve.” Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 604 (5th Cir. 2004) (citing La. Ins. Guar. Ass'n v. Abbott, 40 F.3d 122, 126 (5th Cir. 1994)).
On appeal, and reconsideration, the BRB affirmed the ALJ's denial of compensation, determining that substantial evidence supported the ALJ's findings of fact. BRB Order, ECF No. 1-2 at 22, 24, 25; BRB Reconsideration Order, ECF No. 1-2 at 28.
IV. THE ALJ ERRED WHEN HE REJECTED THE PARTIES' STIPULATION WITHOUT PROVIDING NOTICE.
Plaintiff argues that the ALJ erred in reaching a conclusion that contradicted the Parties' binding stipulation that he was temporarily totally disabled without providing notice. ECF No. 15 at 33-34; Pl.'s Reply Br., ECF No. 19, at 6-9. In addition, Plaintiff asserts that the ALJ erred in considering whether he retired because the issue was only raised for the first time in Defendant's closing brief and Plaintiff had no opportunity to respond to it. Id. at 49-72. Defendant disagrees, asserting that there was no stipulation as to temporary total disability. ECF No. 17 at 41-45. Further, Defendant argues that there was ample evidence for the ALJ to determine that Plaintiff was retired. Id. at 45.
To the extent Defendant argues that Plaintiff failed to raise this issue to the BRB and waived this argument, the Court finds it without merit. On appeal, the BRB discussed Plaintiff's argument concerning the ALJ rejecting the parties' stipulation. BRB Order, ECF No. 1-2 at 19 (noting the stipulation); BRB's Reconsideration Order at 3. (“Thus, to the extent the parties stipulated that claimant became temporarily totally disabled in July 2014, the stipulation could not have been accepted because it evinces an incorrect application of law.”). Even if Plaintiff raised it for the first time on appeal to this Court, as it involves a pure question of law and the proper resolution is beyond doubt, even Defendant admits that the Fifth Circuit would allow it. Def.'s Sur-Reply Br., ECF No. 26 at 4 (citing Texas v. United States, 730 F.2d. 1138, 1140 (5th Cir. 1983)).
Because the Court finds that the ALJ erred in rejecting the Parties' stipulation without notice, it declines to address the myriad other arguments the Plaintiff and Defendant have included in their briefing. These issues should be address based on a full factual record when the case is remanded. A full description of Plaintiff's work history and medical history is summarized in the Appendix A attached to this opinion.
A. The ALJ Is Not Bound to Accept the Parties' Stipulations.
“The parties may stipulate to any facts in writing at any stage of the proceeding or orally on the record at a deposition or at a hearing. These stipulations bind the parties unless the judge disapproves them.” 29 C.F.R. § 18.83 (a) (emphasis added). Generally, stipulations are binding upon the parties who enter them. Wright v. Normandy Terrace Healthcare & Rehab. Center, No. SA-12-CA-0622-XR, 2012 WL 2979040, at *1 (W.D. Tex. July 19, 2012). Pleadings are regarded as judicial admissions, a “formal concession in the pleadings or stipulations by a party or counsel, that is binding on the party making them.” Id.; accord Flynn v. Sanchez Oil & Gas Corp., No. AS-19-CV-00867-JKP, 2020 WL 955304, at *2 (W.D. Tex. Feb. 27, 2020) (citing Christian Legal Soc. Chapt. Of the Univ. of Cal., Hastings Coll. Of the Law v. Martinez, 561 U.S. 661, 667-80 (2010)) (“factual stipulations have the effect of judicial admission, that is both binding on the parties and conclusive in the case.”).
In contrast, a “court is not bound by the parties' stipulations of law, particularly when those stipulations are erroneous.” King v. United States, 641 F.2d 253, 258 (5th Cir. 1981); accord Provident Fin., Inc. v. Strategic Energy L.L.C., 404 Fed.Appx. 835, 838, n.3 (5th Cir. 2010) (“[T]o the extent that the parties made the erroneous stipulations on a question of law, we are not bound the accept those stipulations.”).
Although stipulations are binding on the parties, an ALJ is not obligated to accept them. 29 C.F.R. § 18.83 (a); see, e.g., Mitri v. Global Linguistic Solutions, et al., 48 BRBS 41 (2014) (reversing ALJ's decision when he accepted parties' stipulations that contained an incorrect application of law). If an ALJ rejects the stipulations, however, he must provide the parties with prior notice that he will not accept them, his rationale for rejecting them, and an opportunity to submit evidence in support of their positions. See Martin v. BPU Management Inc., 46 BRBS 11, 16 (2012); Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 245, 1989 WL 245294, at *4 (May 31, 1989) (per curiam); Beltran v. Calif. Shipbuilding & Dry Dock, et al., 17 BRBS 225, 1985 WL 55376, at *3 (Sept. 25, 1985) (per curiam).
Thus, the Court will determine whether the Parties made the stipulation as to Plaintiff's disability status, and whether the ALJ accepted or rejected the stipulation.
B. The Parties Stipulated to Plaintiff's Temporary Total Disability.
Incredibly, Defendant argues that there was no stipulation that Plaintiff was temporarily totally disabled. Id. at 41. This argument is contrary to Defendant's submissions to the ALJ as well as the ALJ's opinion. In sum, it is patently frivolous.
1. Defendant's submissions to the ALJ admit to the stipulation.
Under the rules of practice and procedure for administrative hearings, each party must submit a signed prehearing statement to the presiding judge. 29 C.F.R. § 18.80. The prehearing statement must include the “stipulated facts that require no proof.” Id. § 18.80 (c)(4). In its prehearing statement, Defendant recognized that Plaintiff was temporarily disabled. Defendant selected “temporary total from July 23, 2014” in the prehearing statement form that inquires whether the disability was permanent total, temporary total, permanent partial, and temporary partial. See Def.'s Prehearing Statement, at 2, attached as Appendix B. Later in that document, Defendant wrote: “The parties have stipulated as submitted. The parties have not yet reached any agreement on other facts.” Id. at 3. Counsel signed Defendant's prehearing statement. Id. at 4.
The briefing before the ALJ is not part of the administrative record. See ECF No. 14. The administrative record was not electronically filed so is not part of the CM/ECF electronic file.
Furthermore, although the Parties waived the hearing, the ALJ provided a briefing schedule and they both submitted post-hearing briefs. See 29 C.F.R. § 18.91 (“a judge may grant a party time to file a post-hearing brief with proposed findings of fact, conclusions of law, and the specific relief sought.”). Defendant's brief contains multiple references to the stipulation. For example, in the opening statement section, Defendant acknowledged the stipulation to Plaintiff's temporary total disability, as follows:
AECOM has accepted liability for Claimant's medical treatment for his psychiatric disability. The parties have stipulated that Claimant has been temporary and totally disabled since July 23, 2014… Thus, the only issues in this case concern whether Claimant is entitled to compensation for temporary total disability, and if so, then what the proper rate should be.Def.'s Post Hrg. Br., at 2 (emphasis added) (attached as Appendix C). In the stipulated facts section of the brief, Defendant repeated that Plaintiff “became temporarily totally disabled on July 23, 2014.” Id. at 2-3. Following the list of stipulated facts, Defendant notes that “the parties have also entered stipulations” concerning other facts, implicitly recognizing that stipulations were made as indicated. Id. at 3 (emphasis added). Defendant repeated the temporarily totally disabled language in the section on retirement status. Id. at 17 (“The parties agree that Claimant became temporarily totally disabled on July 23, 2014.”).
Defendant's argument that pleadings are not binding and should not be treated as a stipulation is without merit. No. specific form is required to constitute a stipulation. A statement a party makes in its briefing can be construed as a judicial admission. Wright, 2012 WL 2979040, at *1; accord GlobeRanger Corp. v. Software AG, 27 F.Supp.3d 723, 744 (N.D. Tex. 2014) (citing City Nat. Bank v. United States, 907 F.2d 536, 544 (5th Cir.1990) (“[W]hether to treat prior ‘statements in briefs as binding judicial admissions of fact ... is within [the Court's] discretion.'”)). Accordingly, courts routinely treat facts contained in a party's pleadings as stipulations. Wright, 2012 WL 2979040, at *1; accord F.D.I.C. v. Bledsoe, 989 F.2d 805, 807 (upholding a district court's decision that the facts contained in one party's pleadings were stipulations). “A party making a stipulation or judicial admission is barred from disputing it.” Wright, 2012 WL 2979040, at *1. Thus, Defendant's pleadings before the ALJ that Plaintiff was temporarily totally disabled constitute judicial admissions, are binding, and Defendant is barred from disputing it. See id.
2. The ALJ's Order recognizes the temporarily totally disabled stipulation.
Contrary to Defendant's contention, the ALJ recounted the Parties' stipulation that, “Claimant became temporarily and totally disabled on July 23, 2014. Claimant became aware of his disability the same day.” ALJ's Order, ECF No. 1-2 at 5. The ALJ cited to the stipulations in the record, including joint stipulations, as well as Defendant's prehearing statement and closing brief. Id. at 4 n.3. In addition, the ALJ stated that Defendant conceded Plaintiff has been temporarily totally disabled. Id. at 4. On appeal, the BRB also noted the Parties stipulated that Plaintiff had been temporarily totally disabled. BRB Order, ECF No. 1-2 at 19. Thus, Defendant's contention that there was no stipulation that Plaintiff was temporarily totally disabled defies credulity.
C. The ALJ Erred When Rejecting the Parties' Stipulation Without Notice.
Because of the Parties' stipulations, according to the Defendant, the only issues before the ALJ were whether the Plaintiff was “entitled to compensation for temporary total disability, and if so, then what the proper rate should be.” Def.'s Post Hrg. Br. at 2 (attached as Appendix C). After recounting the stipulation that Plaintiff was temporarily totally disabled in his order, however, the ALJ implicitly rejected it. Although the opinion does not state that the ALJ rejected the stipulation, the ALJ found to the contrary that the case was one of permanent partial disability. ALJ Order, ECF No. 1-2 at 12.
According to Plaintiff, the only issues Defendant contested before the ALJ were timeliness and compensation rate based upon a calculation of average weekly wage. ECF No. 15 at 26.
Under the Administrative Procedure Act (“APA”), the parties are entitled to know the matters of fact and law asserted at the hearing. 5 U.S.C. § 554 (b)(3). Parties to the proceeding are required to give prompt notice of issues controverted in fact or law. Id. Moreover, the agency shall give all parties opportunity for the submission and consideration of facts. Id. § 554 (c)(1). Accordingly, while an ALJ is entitled to reject the parties' stipulation, 29 C.F.R. § 18.83 (a), he may not do so without affording them notice so that they can submit further facts for consideration. Martin, 46 BRBS at 16; Dodd, 1989 WL 245294, at *4; Beltran, 1985 WL 55376, at *3.
Here the Parties exchanged prehearing statements and decided to waive their hearing, instead submitting the case on stipulated facts. Even the Defendant's post-hearing brief argues that the calculation of damages is based on Plaintiff's status as temporarily totally disabled. See, e.g., Def.'s Post Hrg. Br. at 17 (attached as Appendix C). When the ALJ implicitly rejected the stipulation that Plaintiff was temporarily totally disabled and instead found that he was permanently partially disabled, it changed the statutory provisions applicable to the claim and the damages available under the award. ALJ Order, ECF No. 1-2 at 12-13 & n. 18. Thus, the ALJ was required under the APA and case law to give notice that he would not accept the stipulation that Plaintiff was temporarily totally disabled, with his rationale, and an opportunity to submit further evidence. 5 U.S.C. § 554 (b). He failed to state that he rejected the stipulation, provide any reasoning, or any opportunity to supplement the record. Thus, the ALJ's decision is not in accordance with the law. See Erickson v. Crowley Maritime Corporation et al, 14 BRBS 218, 220 (1981) (explaining that when the ALJ rejects a stipulation but fails to notify the parties, he has violated the APA).
D. The BRB Applied the Wrong Legal Standard.
The BRB's legal conclusions are reviewed de novo. The Court must affirm if the ALJ's findings are supported by substantial evidence and are in accordance with the law. P & M Crane Co., 930 F.2d at 428.
1. The ALJ committed an error of law.
The APA requires the ALJ to notify the parties as to the issues to be decided in their case, affording them an opportunity to prepare. 5 U.S.C. § 554(b). The ALJ did not provide notice that he intended to reject the stipulation, and “the parties justifiably relied upon their stipulation[] and had an insufficient opportunity to prepare for litigation on the issue of disability.” See Phelps, 16 BRBS at 327. Because the ALJ failed to notify the Parties of his intention to reject the stipulation that Plaintiff was temporarily totally disabled, he violated the APA. Defendant argues that the issue of Plaintiff's disability was intertwined with the issue of calculating his average weekly wage, and therefore not a new issue that required notice. ECF No. 17 at 50. The BRB rejected the same argument that “the nature and extent of disability was inextricably involved with the other issues in [the] case.” Klubnikin v. Crescent Wharf & Warehouse Co., 16 BRBS 182, 185 (1984). “Where the [ALJ] fails to notify the party but decides the issue in his decision and order, the decision must be vacated and the case remanded.” See Id. at 184 (vacating decision when ALJ failed to notify parties of a new issue that warranted consideration that arose during the hearing).
2. The BRB erred in affirming the ALJ.
On appeal, the BRB rejected Plaintiff's argument, stating that “[t]he parties' briefs address all aspects of the issues before the administrative law judge, including whether claimant's injury is an occupational disease and how his average weekly wage should be calculated.” BRB's Reconsideration Order at 3. However, because the ALJ failed to provide notice that he intended to reject the stipulation on temporary total disability, the Parties' briefs were premised on the assumption that the stipulation would be accepted. Phelps, 16 BRBS at 327. Additionally, the ALJ found Plaintiff could not receive compensation because the Parties stipulated that Plaintiff had not achieved maximum medical improvement. ALJ's Order, ECF No. 1-2 at 15. But this stipulation was also premised on the assumption that the previous stipulation would also be accepted.
Because the ALJ's failure to give notice and an opportunity to submit further evidence was an error of law, the BRB erred when it affirmed the ALJ's decision on appeal and on reconsideration. Equitable Equip. Co., 191 F.3d at 632. Therefore, the decision must be vacated, and the case remanded. Klubnikin, 16 BRBS at 184; see Martin, 46 BRBS at 16 (affirming when ALJ provided notice and explained rationale for rejection of stipulation since he followed the correct procedure).
3. The ALJ's error harmed Plaintiff and requires remand.
Courts do not remand unless “it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.” Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). The BRB's decision denied Plaintiff the opportunity to properly brief his case before the ALJ, a procedural right under the LHWCA. This denial harmed Plaintiff. Ingalls Shipbuilding Inc. v. Director, 102 F.3d 1385, 1389 (5th Cir. 1996) (finding that denial of an applicant's “procedural rights under the LHWCA” is not harmless error). Additionally, neither the BRB nor the Court can substitute its opinion for that of the ALJ or consider the facts de novo. Chevron USA, 204 Fed.Appx. at 363; Eysselinck v. Director, No. H-07-4589, 2009 WL 677137, at *37 (S.D. Tex. Mar. 11, 2009). Therefore, the Court recommends that Plaintiff's case be remanded to the ALJ to reconsider Plaintiff's case and conduct new factual findings. On remand, the ALJ should be instructed to provide notice of any stipulations he intends to reject and new issues that may be raised, affording the Parties an opportunity to fully brief their case.
V. CONCLUSION
This Court recommends that Plaintiff's appeal should be GRANTED. ECF Nos. 1, 15. Plaintiff's case should be REMANDED to the ALJ for a redetermination consistent with this opinion.
The Parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). Failure to file timely objections will preclude review of factual findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir. 2017).
APPENDIX A
A. Plaintiff's Employment History.
Beginning in 2008 Plaintiff worked as an Iraqi Advisor for a government contractor in warzone Iraq. J. Ex. 8 at 29. Plaintiff claims that his employment in Iraq triggered his PTSD and major depressive disorder. ECF No. 1. While in Iraq, he worked near high tension zones and was regularly exposed to dangerous and stressful conditions both on and off the base. J. Ex. 8 at 29-33, 54-55. He gathered intelligence for the U.S. military, talking with Iraqi locals to collect information on “the daily situation, daily life of [non-military] people [including] economic, religious, social, [and] political.” J. Ex. At 29. According to Plaintiff, performing his duties exposed him to multiple rocket attacks, injured soldiers, and dead body bags being carried away. J. Ex. 8 at 32-33, 38-39. Plaintiff recalled he was a passenger in a helicopter that came under fire in two or three occasions. J. Ex. 8 at 37.
Plaintiff's first employer in Iraq was SOS International. J. Ex. 8 at 29. Plaintiff's employer changed multiple times when McNeil Technologies acquired the government contract from SOS International; subsequently, AECOM Technology Corp acquired McNeil Technologies, changing its name from AECOM National Security Programs, Inc. J. Ex. 8 at 29. Plaintiff maintained his role and job duties during this change of employers. J. Ex. 8 at 29.
Plaintiff's exhibits included articles documenting frequent bombing attacks in warzone Iraq during the relevant time. P. Ex. 11 at 250-82.
In addition to Plaintiff's testimony, Plaintiff provided an affidavit from William Goodgine, Plaintiff's former Supervisor in Iraq, who testified that Plaintiff's work “was nonstop, dangerous, highly stressful and exhausting.” P. Ex. 10 at 239-40. Specifically, as a part of his duties, Plaintiff had to “travel unescorted outside of the gates of the military base [which were] subject to suicide bombers, car bombs, and small arms fire.” In addition, when traveling from base to base, their “vehicle convoys were under threat from improvised explosive devices (IEDs), mines, and militant attacks.” Id.
Plaintiff's employment ceased when the U.S. government canceled his employer's contract. J. Ex. 4 at 8; D. Ex. 2 at 5. On September 11, 2011, Plaintiff left Iraq, and has not been gainfully employed since then. J. Ex. 8 at 28, 35. Upon his return to the United States, he applied for and received unemployment benefits from the State of Illinois between October 13, 2022 and February 16, 2013. J. Ex. 15 at 239-242; J. Ex. 17 at 295; D. Ex. 2 at 5. While he was receiving unemployment benefits, Plaintiff continued to apply for jobs and contacted recruiters. D. Ex. 22 at 154 (showing ten job applications that Plaintiff submitted to Illinois' unemployment office). After his unemployment benefits ended, he continued to apply for work, but Plaintiff testified that he could not recall for how long. J. Ex. 8 at 49.
B. Plaintiff's Medical History.
The Parties do not dispute that Plaintiff suffered from PTSD and major depressive disorder. The onset of his injury was delayed until 2014. J. Ex. 12 at 173. As a result of the delayed onset of Plaintiff's psychological conditions, the ALJ classified his work-related injuries as occupational diseases, ALJ's D&O at 13, which affects the time of injury and calculation of benefits. To the contrary, Plaintiff claims that his injuries are traumatic injuries. ECF No. 15 at 57.
In support of his position, Plaintiff asserts that the medical records show that he began suffering from these conditions while in Iraq. Id. at 23-25, 51-53. Shortly after he returned to the U.S., in March 2012, Plaintiff complained of chronic intermittent anxiety to his treating physician, Dr. Massel. J. Ex. 11 at 144. According to Plaintiff, around this time his wife noticed increasing problems with his temperament, observing greater depression and lower energy levels. J. Ex. 8 at 35. Because Plaintiff claimed his anxiety was improving, however, Dr. Massel did not refer Plaintiff or treat the anxiety at the time. J. Ex. 11 at 144.
In March 2014, Dr. Massel described Plaintiff as experiencing gradually worsening symptoms of depression “since at least September 2013” including “decreased concentration, depressed mood, excessive worry, insomnia, irritability, malaise, nervous/anxious behavior and restlessness.” J. Ex. 11 at 154. At this time, Plaintiff complained that his symptoms were interfering with daily activities and causing him significant distress. J. Ex. 11 at 154. Dr. Massel referred Plaintiff for mental health counseling first with psychiatrist Dr. Gutzmann, and later Dr. Rahim after Plaintiff began to complain of severe depression. J. Ex. 8 at 40; J. Ex. 12 at 173.
On July 23, 2014, Dr. Rahim diagnosed Plaintiff with major depressive disorder and PTSD, concluding that Plaintiff's psychological conditions left him unable to work. J. Ex. 12 at 173. Dr. Rahim opined that Plaintiff's work in Iraq caused both the major depressive disorder and PTSD, which had a delayed onset. J. Ex. 12 at 173. Dr. Rahim treated Plaintiff with cognitive behavioral therapy and medication. J. Ex. 12 at 173; J. Ex. 9 at 85-87.
Another psychiatrist, Dr. Conroe, evaluated Plaintiff in March 2016. J. Ex. 13 at 207. Dr. Conroe also diagnosed Plaintiff with major depressive disorder and possible associated PTSD. J. Ex. 13 at 207. He opined that being in Iraq contributed significantly to the development of Plaintiff's psychiatric conditions. J. Ex. 13 at 208; J. Ex. 10 at 114. Dr. Conroe also concurred with Dr. Rahim that Plaintiff's PTSD had a delayed onset, with symptoms developing months or years after the trauma. J. Ex. 10 at 109. Dr. Conroe opined that Plaintiff would have difficulty sustaining work activity on a “day by day, week by week basis.” J. Ex. 13 at 208. According to Dr. Conroe, Plaintiff had not reached maximum medical improvement and would need six to twelve more months of cognitive behavioral therapy and medication. J. Ex. 10 at 112.
accidental injury or death arising out of and in the course of employment, and such occupational diseases or infection a arises naturally out of such employment or as naturally or unavoidably results from accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.33 U.S.C. § 902(2).
5. Claimant suffered an injury or disease that arose out of his employment. He has not reached maximum medical improvement.
6. Under section 7 of the Longshore Act, AECOM National Security Programs, Inc. is liable for and has authorized medical benefits for Claimant's psychiatric condition.
7. Claimant became temporarily totally disabled on July 23, 2014. Claimant became aware of his disability the same day.