Ronald Patrick West, Sr. v. Service Employees International, Incorporated (Board decision, February 28, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's denial of additional medical benefits under the Defense Base Act. Earlier awards of disability and medical benefits remain in place. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Ronald Patrick West, Sr., received disability and medical benefits for injuries from his work as a truck driver in Iraq. He later sought coverage for additional conditions and reimbursement for home care, dental work, a more expensive airline ticket, and orthotics. A judge found that the new conditions were not work-related and that West had not shown the disputed expenses were necessary and reasonable treatment for covered injuries. The Board upheld those findings, including the judge's assessment of the medical evidence and West's testimony. West's earlier awards of ongoing disability and medical benefits for established work injuries remain in effect.

Decision snapshot

• Authority: Medical benefits for work injuries under 33 U.S.C. § 907(a) and (d), as extended by the Defense Base Act.
• Outcome: Denial of additional medical benefits and expense reimbursement affirmed.
• Key point: Additional treatment costs require evidence that they are reasonable and necessary for a covered work injury.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 23-0393

RONALD PATRICK WEST, SR.
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Claimant-Petitioner
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v. )
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NOT-PUBLISHED
SERVICE EMPLOYEES
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INTERNATIONAL, INCORPORATED
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) DATE ISSUED: 02/28/2025
and
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)
INSURANCE COMPANY OF THE STATE
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OF PENNSYLVANIA
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)
Employer/Carrier-
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Respondents
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DECISION and ORDER
Appeal of the Decision and Order Denying Claim for Additional Medical Benefits and the Order Denying Claimant’s Motion for Reconsideration of Susan Hoffman, Administrative Law Judge, United States Department of Labor.

Ronald Patrick West, Sr., Marana, Arizona.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS, and JONES, Administrative Appeals Judges

PER CURIAM:

Claimant, without representation, appeals Administrative Law Judge (ALJ) Susan Hoffman’s Decision and Order Denying Claim for Additional Medical Benefits and Order Denying Claimant’s Motion for Reconsideration (2021-LDA-01115) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act), as extended by the Defense Base Act, 42 U.S.C. §§1651-1655 (DBA). On appeal, Claimant challenges the ALJ’s denial of medical benefits; therefore, the Benefits Review Board will review the findings adverse to him and address whether substantial evidence supports the Decision and Order Denying Claim for Additional Medical Benefits (D&O).1 See Pierce v. Elec. Boat Corp., 54 BRBS 27 (2020). We must affirm the ALJ’s decision if it is rational, supported by substantial evidence, and in accordance with applicable law.2 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant worked for Employer as a truck driver in Iraq during parts of 2004, and again from July 12, 2007, until October 14, 2009, when he was terminated for failing to comply with safety protocol. He allegedly sustained multiple injuries when, on October 4, 2009, he stepped out of a work vehicle and twisted his left leg. He reported to Employer’s clinic on the same day where he was diagnosed with left knee and left ankle sprains, provided pain medication, and told to rest.3 In 2010, Claimant, then represented by

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Ninth Circuit because the office of the district director who filed the ALJ’s decision is located in San Francisco, California. 33 U.S.C. §921(c); Global Linguist Solutions, L.L.C. v. Abdelmeged, 913 F.3d 921 (9th Cir. 2019); McDonald v. Aecom Tech. Corp., 45 BRBS 45 (2011).
2 Claimant submitted nine exhibits in support of his appeal. To the extent this evidence is not already part of the existing record, it will not be considered as the Board is not permitted to accept new evidence. 20 C.F.R. §802.301. Moreover, Claimant’s suggestion that he would be willing to settle his pending claim “in front of the Benefits Review Board” lacks authority as only the district director or the ALJ has the power to approve settlements as articulated in Section 8(i)(1) of the Act. 33 U.S.C. §908(i)(1); 20 C.F.R. §702.241.
3 On October 5, 2009, Claimant purportedly was instructed by personnel at Employer’s medical clinic to return to restricted work duties. He did not and was terminated shortly thereafter for reasons unrelated to his injuries. After his termination, Claimant was asked if he wished to return to the United States, but he instead opted to travel to Thailand because he had past medical treatment there and “knew everybody.” West v. SEII, OALJ No. 2010-LDA-00527, slip op. at 5 (Aug. 16, 2011) (2011 ALJ Webster D&O). Claimant apparently has not returned to any work since the date of his accident.

2 counsel,4 filed a claim under the Act seeking benefits for work injuries to his left knee, left ankle, left hip, and back, as well as for an aggravation of his pre-existing hypertension. 5 Employer filed a notice of controversion, and the claim was forwarded to the Office of Administrative Law Judges (OALJ). On August 16, 2011, ALJ Stephen Webster issued a decision finding Claimant entitled to, and Employer liable for, ongoing temporary total disability benefits from October 6, 2009, for a left leg injury sustained as a direct result of the October 4, 2009 work accident, and for work-related aggravations of Claimant’s pre- existing degenerative left hip and back conditions. 6 West v. SEII, OALJ No. 2010-LDA- 00527, slip. op. (Aug. 16, 2011) (2011 ALJ Webster D&O). Judge Webster also awarded Claimant “present and future medical benefits for [his] orthopedic injuries.” Id. at 19.

Around 2012, Claimant sought additional medical benefits for alleged consequential work-related injuries,7 which ultimately resulted in ALJ Jennifer Gee’s issuance of a Decision and Order Approving Stipulations. West v. SEII, OALJ No. 2016-LDA-00234,

4 Claimant was represented by Gary Pitts, Esq., from the filing of his September 2010 claim through at least the date of ALJ Stephen Webster’s August 2011 decision. At some point thereafter, Claimant obtained new counsel, John-Austin Diamond, Esq., to assist him in his pursuit of benefits for his alleged additional work-related injuries from his work with Employer. Mr. Diamond apparently represented Claimant only until September 2016 when ALJ Jennifer Gee issued her Decision and Order Approving Stipulations.
5 Claimant, at first, alleged injuries only to his left knee and left ankle. He later amended his claim to include additional body parts and conditions.
6 Judge Webster ultimately determined Claimant’s hypertension was unrelated to his work for Employer and, therefore, denied all benefits relating to this condition. 2011 ALJ Webster D&O at 16. He also denied Claimant’s assertion of entitlement to benefits for alleged work-related anxiety and depression as those conditions were raised for the first time in Claimant’s post-hearing brief. Id. at 2-3; see also Parties’ 2016 Stipulation of Facts at 2.
7In response to Claimant’s request, Employer sought modification of Judge Webster’s award of benefits under 33 U.S.C. §922.

3 slip. op. (Sep. 14, 2016) (2016 ALJ Gee D&O).8 After review of the parties’ stipulations, 9 Judge Gee modified Judge Webster’s 2011 decision to include Employer’s liability for all reasonable and necessary medical treatment attributable to Claimant’s work-related right shoulder, right hip, and right knee injuries, as well as for an injury due to chromium and cobalt leaking from his hip replacements, weight gain, worsening of his psychological condition, skin removal surgeries, and post-traumatic stress disorder (PTSD).10 Id. at 2.

Claimant, no longer with legal representation, again sought additional medical benefits, this time for dental treatments and transportation costs. The case was referred to the OALJ and assigned to ALJ Susan Hoffman (the ALJ). A February 21, 2020 status conference revealed Employer had been providing the requested benefits, as set forth in a Memorandum of Informal Conference dated September 20, 2018, so the ALJ, having determined no issues remained for adjudication, remanded the case to the district director for entry of a compensation order. West v. SEII, OALJ No. 2019-LDA-00724, slip op. (Mar. 2, 2020) (2020 ALJ Order). But Claimant raised entitlement to medical benefits for other medical concerns before OWCP11 and eventually pursued further adjudication of his claim before the OALJ, OALJ No. 2021-LDA-01115. His latest efforts resulted in the ALJ

8 Previously, on May 23, 2013, Judge Gee issued an order granting the parties’ joint

stipulation that the case be remanded to the district director for adjudication as Employer had decided to accept part of the claim. West v. SEII, OALJ No. 2012-LDA-00765 (May 23, 2013) (2013 ALJ Gee Order).
9 The parties’ stipulations acknowledged Employer’s continued controversion of Claimant’s request for medical benefits relating to his alleged complications from prolonged morphine use, brain atrophy, and dental problems, but explicitly did not prohibit Claimant from seeking additional benefits under the Act attributable to these additional conditions. Parties’ 2016 Stipulation of Facts at 3.
10 Judge Gee ordered Employer to continue paying Claimant the previously awarded

temporary total disability benefits and medical benefits relating to his left ankle, left knee, left hip, left leg, and low back injuries. 2016 ALJ Gee D&O at 2. She also granted Employer’s request to dismiss its Section 22 modification request without prejudice. Id.
11 At this time, Claimant sought medical benefits for alleged work-related injuries

to his left shoulder, bilateral upper extremities, left foot, and cervical and thoracic spine, as well as for reimbursement of certain medical expenses he incurred in excess of what Employer had already provided for compensable services.

4 holding a formal hearing on January 21, 2022, and on June 1, 2022, via videoconference,12 at which both parties were afforded a full and fair opportunity to present evidence and argument.13 Based on the parties’ representations, the ALJ identified the disputed issues as causation relating to Claimant’s “newly-alleged” injuries to body parts not previously adjudicated and as to whether the difference between Employer’s payments and Claimant’s claimed costs for certain travel and medical expenses is reasonable and necessary for treatment of a work-related condition. HT2 at 23-25.

In her decision, the ALJ found Claimant invoked the Section 20(a) presumption, 33 U.S.C. §920(a), with regard to his left shoulder, bilateral upper extremities, left foot, and cervical and thoracic spine. Employer rebutted the presumption with substantial evidence that none of these injuries were caused, contributed to, or aggravated by the October 2009 work accident or Claimant’s work for Employer. D&O at 45. In weighing the evidence as a whole, the ALJ, having accorded predominant weight to Dr. George Gendy’s reports, concluded Claimant did not establish by a preponderance of the evidence that his presently alleged injuries arose out of and in the course of his work with Employer. She next found Claimant’s claimed expenses are not reasonable and necessary for treatment of his work injuries as they are either unrelated to any work injuries or have already been accepted and/or paid by Employer. Consequently, the ALJ denied Claimant’s claim for additional benefits. The ALJ thereafter denied Claimant’s motion for reconsideration.

Claimant, without legal representation, appeals the ALJ’s decision. Employer has not filed a response brief.

12 On the first hearing date, Claimant stated he was looking for an attorney and wanted legal representation. HT at 42. Claimant was unsuccessful in finding representation, and the case proceeded with Claimant appearing, as recognized by the ALJ, as a self-represented litigant.
13 This time before the OALJ, Claimant submitted numerous emails and filings, including denied requests for a stay in the proceedings, a continuance, and the ALJ’s recusal. The ALJ also recognized Claimant, over the course of this litigation, “has made extensive inappropriate filings, engaged in harassing behavior toward Respondents’ counsel, made multiple improper ex parte communications with OALJ staff, violated the rules applicable to this proceeding, and continued to engage in such behavior despite repeated advisements, warnings, and orders specifically prohibiting the improper conduct.” West v. SEII, OALJ No. 2021-LDA-01115, slip. op. at 1 (Dec. 22, 2022) (ALJ Order).

5
Section 20(a) Causation

Rebuttal

If a claimant invokes the Section 20(a) presumption that his injuries are work- related, as is the case here, the burden shifts to the employer to rebut the presumption with substantial evidence that the claimant’s injuries were not caused, aggravated, or accelerated by the conditions of his employment. Rose v. Vectrus Systems Corp., 56 BRBS 27 (2022) (en banc), appeal dismissed (M.D. Fla. Aug. 24, 2023); see also Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010); Ramey v. Stevedoring Services of America, 134 F.3d 954, 959 (9th Cir. 1998). An employer’s burden on rebuttal is to produce “evidence specific and comprehensive enough to sever the potential connection between the disability and the work environment.” Ramey, 134 F.3d at 959 (internal citation omitted). The inquiry at rebuttal concerns “whether the employer submitted evidence that could satisfy a reasonable fact finder that the claimant’s injury was not work-related.” Ogawa, 608 F.3d at 651. Thus, the employer’s burden on rebuttal is one of production only. The weighing of conflicting evidence or of the credibility of evidence “has no proper place in determining whether [employer] met its burden of production.” Id.

Employer produced the opinion of its expert, Dr. Gendy, to rebut the Section 20(a) presumption. In his report dated April 14, 2022, Dr. Gendy opined Claimant sustained only left ankle and left knee mild sprains/strains as a result of the October 4, 2009 work accident, which are “now resolved” and would have resolved “approximately within 3 months of the date of the event.” EX 15 at 59, 68-69. Although he acknowledged Claimant’s medical records indicate other health conditions, including many for which he obtained treatment, Dr. Gendy opined all of those diagnoses “are not considered caused, aggravated, or exacerbated by the event of 10/04/2009 or from any activity during [Claimant’s] employment with [Employer].” EX 15 at 3-4, 59-60, 65. Dr. Gendy’s statements constitute substantial evidence supporting a reasonable fact-finder’s determination that Claimant’s left shoulder, bilateral upper extremities, left foot, and cervical and thoracic spine injuries/conditions were not caused, aggravated, or exacerbated by the October 2009 work accident or by Claimant’s work for Employer. Ogawa, 608 F.3d at 651; Suarez v. Serv. Employees Int’l, Inc., 50 BRBS 33, 36 (2016); Cline v. Huntington Ingalls, Inc., 48 BRBS 5, 7 (2013). We therefore affirm the ALJ’s finding that Employer rebutted the Section 20(a) presumption relating Claimant’s presently claimed conditions to his work. Id.

Weighing the Record as a Whole

When an employer succeeds in rebutting the Section 20(a) presumption, the presumption falls out of the case, and the ALJ must weigh the record as a whole to assess 6 whether the claimant’s injury is work-related. Ogawa, 608 F.3d at 651. This determination is a question of fact with the claimant bearing the burden of showing by a preponderance of the evidence that his injuries were caused or aggravated by his working conditions. Id.; see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). The ALJ, as the factfinder, is entitled to evaluate the credibility of all witnesses, including physicians, weigh the medical evidence, and draw her own inferences and conclusions from the record. See Ogawa, 608 F.3d at 652-653. Moreover, she is not bound to accept the opinion or theory of any particular medical examiner. Walker v. Rothschild Int’l Stevedoring Co., 526 F.2d 1137, 1140-1141 (9th Cir. 1975). The Board may not reweigh the evidence, draw other inferences from the record, or substitute its views for those of the ALJ. Rhine v. Stevedoring Services of Am., 596 F.3d 1161, 1165 (9th Cir. 2010); Sestich v. Long Beach Container Terminal, 289 F.3d 1157, 1159 (9th Cir. 2002).

In this case, the ALJ undertook extensive review of Claimant’s testimony, D&O at 9-17, his medical records,14 and the physicians’ opinions regarding Claimant’s “newly alleged injuries.” Id. at 17-34, 45. She also appropriately articulated the legal standards for weighing the evidence in her causation analysis, id. at 5-6, 34-36, and her decision reflects a thorough consideration of, and explanation for, each of her credibility determinations, id. at 36-45, as well as her findings of fact, id. at 45-48. In terms of weighing the evidence as a whole, the ALJ focused on Claimant’s testimony, as well as on the physicians’ opinions on causation,15 i.e., family practitioner Dr. John K. Lees; orthopedist Dr. Suradej Loiduenxai; physiatrist Dr. Jeri B. Hassman; neurologist Dr. Niratchada Sap-Anan; podiatrist Dr. Nicole Byerley; and board-certified orthopedic surgeon Dr. Gendy.16 Id. at 17-34, 45.

14 Both parties submitted medical records from Claimant’s treating providers at the

Southern Arizona Veterans Administration Healthcare System (VA) and the Bangkok Pattaya Hospital (Bangkok Hospital). D&O at 17-31; CXs 1-8; EXs 14 and 17a, 17b.
15 The record also contains diagnostic testing, reports, and progress notes from physicians with the Bangkok hospital, including Dr. Nitaya Jongrakphuban, Dr. Ekkasit Swangjitmetta, Dr. Vitaya Kumnerdtonmanee, Dr. Pisit Tansathitjkom, Dr. Natchai Jitthamvanich, Dr. Patcharee Hongsmatip, Dr. Siriporn Thitiwaraporn, and Dr. Anuparb Papapan, and with the VA, including Dr. Jennifer Alcala, Dr. Gabrielem Koschorke, Dr. William Rees, Dr. Juan Guzman, and podiatrist R.H. van der Lubben. CXs 1-8; EXs 14 and 17a, 17b.
16The ALJ also considered the March 28, 2022 report from licensed clinical psychologist, Dr. Jake Epker, Ph.D., EX 6, although only for assessing Claimant’s 7
The ALJ first found Claimant is not credible as his testimony is “rife with evasiveness, exaggeration, inconsistencies, and discrepancies with the medical records and other evidence.”17 D&O at 36. Additionally, she stated Claimant’s statements left her with “an overall impression that Claimant consistently attempted to give testimony he thought would bolster his claim rather than simply answering questions honestly and directly.” Id. She noted this finding was in line with Dr. Epker’s well-reasoned and supported opinion that Claimant exhibited behavior reflecting malingering and exaggeration or symptom fabrication, EX 6 at 14. D&O at 33-34, 39.18 For this reason, the ALJ further found it “very likely” that Claimant’s statements and reports to his treating and evaluating physicians were “not genuine or truthful,” so she deemed it necessary to “very carefully” assess the information Claimant provided to all of his medical providers. Id. at 39.

The ALJ next examined the reports and opinions proffered by Dr. Loiduenxai, whom she found has treated Claimant since at least 2007. Although acknowledging that

credibility. D&O at 36, 38, 39. In this regard, she accorded “great weight” to Dr. Epker’s observations of Claimant’s conduct and demeanor. Id.
17 For example, the ALJ found “Claimant would report to his doctors in Thailand

statements allegedly made by his doctors in the U.S., and vice versa, which are not corroborated by the medical evidence.” Compare EX 14 at 602, with EX 17b at 1006; see also D&O at 37. Additionally, she found Claimant testified he had no doubt that his shoulder and neck pain were caused by his driving in Iraq, and not in the United States, HT2 at 50, but his medical records noted complaints of left shoulder pain in 2003, purportedly aggravated by his truck driving in the United States, which occurred well before he worked for Employer in Iraq, EX 17b at 1989, 1994-1995. D&O at 37.
18 The ALJ stated the fact that the medical records contained reports of Claimant’s

extensive subjective complaints of pain to various body parts since 2009 and before, and his use of opioid medication, including morphine, on a regular if not daily basis since at least 2009, led her to not rule out “the possibility that Claimant’s constant complaints of pain were attributable to his desire to secure continued prescriptions for such medication.” D&O at 38. In this regard, she found it significant that the record establishes two doctors, Drs. Papapan and Guzman, recommended Claimant stop using morphine because it was not a reasonable or necessary medical treatment, EX 14 at 473; EX 17b at 1050-1051, 1061, 1064, but Claimant “refused their advice” and instead continued to report pain symptoms and procure morphine from other doctors. EX 17b at 894.

8
“greater weight is generally given to the opinion of a treating physician,”19 she concluded, based on “the internal inconsistencies in his records, the lack of explanation and reasoning, and the other evidence of record,” that Dr. Loiduenxai’s conclusions and opinions are entitled to little weight.20 D&O at 40. Additionally, the ALJ found the opinions of Drs. Sap-Anan and Lees are similarly flawed, leading her to accord “no weight” to each of their opinions.21 Moreover, she did not consider Dr. Hassman’s October 30, 2020 report a

19 For the reasons expressed in Kkunsa v. Constellis Group, BRB No. 24-0001, slip.

op. at 8-9 (Feb. 5, 2025) (published), we reject Claimant’s suggestion, by his reference to Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), that his treating physicians are automatically entitled to greatest weight in this case. See also generally Amos, 153 F.3d at 1054; Pietrunti v. Director, OWCP, 119 F.3d 1035, 1042-1044 (2d Cir. 1997).

20 For instance, she found Dr. Loiduenxai’s March 29, 2014 report contained a statement that Claimant “had a left shoulder and left arm injury in Iraq,” whereas his 2010 reports make no mention of any injury to Claimant’s shoulders/arms and only describe a mechanism of injury relating to his diagnosed left knee and left ankle injuries. Compare EX 14 at 278, with EX 14 at 60. Based on discrepancies between Dr. Loiduenxai’s 2010 report and subsequent descriptions of the 2009 accident and resulting injuries, the ALJ stated it appears Dr. Loiduenxai “altered his description and impact of the work accident and included Claimant’s report of working conditions in order to coincide with whatever particular medical condition Claimant was seeking treatment for at the time.” D&O at 40. This prompted her to conclude that Dr. Loiduenxai’s causation opinion is suspect as it is seemingly based solely on Claimant’s subjective statements as to his work conditions and varying descriptions of the 2009 accident. Id. Moreover, she found it significant that throughout his records, Dr. Loiduenxai “does not discuss any other conditions, such as obesity, age, or degenerative disease, that may have caused Claimant’s newly-alleged injuries.” Id.
21 She found Dr. Sap-Anan’s “conclusory” attribution of Claimant’s spinal spondylosis to his work with Employer was unexplained and therefore neither well- reasoned nor supported by the record evidence. D&O at 42-43. The ALJ initially found Dr. Lees’s status as a family practitioner rather than an orthopedist did not make him “well- qualified to provide opinions on orthopedic issues.” Id. at 43. She also found that to the extent Dr. Lees proffered an opinion attributing unspecified trauma in multiple body parts to Claimant’s work in Iraq in 2009, it is not well-reasoned or explained, but instead “appears to be based solely on Claimant’s own report.” Id. Moreover, she found Dr. Lees’s credibility “marred by his apparent willingness to provide whatever treatment or recommendation Claimant asked for” as exemplified by documentation in the record of the doctor summarily acquiescing to Claimant’s many and varied requests. Id. at 44.

9 medical opinion on industrial causation of Claimant’s left shoulder because, although it included Claimant’s own attribution of his bilateral shoulder pain to his work with Employer, it contained no independent medical “assessment of causation.” Id. at 44. In contrast, the ALJ found Dr. Gendy’s opinions “were based on a thorough review of the medical evidence, are adequately explained, and are well reasoned and well supported.” D&O at 44. In this regard, acknowledging Dr. Gendy did not conduct “a complete physical examination” of Claimant,22 the ALJ found Dr. Gendy’s evaluation involved an extensive review of Claimant’s medical records which demonstrates “he had an adequate understanding of Claimant’s medical issues, pre-existing conditions, the work accident, and working conditions.” Id. at 45. Based on this, and Dr. Gendy’s “qualifications and expertise in orthopedic issues,” the ALJ gave “great weight” to his causation opinion.

The ALJ thereafter separately considered each of Claimant’s “newly alleged” injuries based on a review of the record as a whole and her credibility determinations. D&O at 45-49. For each claimed injury, she reviewed the relevant evidence and afterward reiterated her determination that Dr. Gendy’s opinion is entitled to the greatest weight. Id. Therefore, the ALJ credited Dr. Gendy’s opinion that Claimant’s conditions involving his left shoulder, bilateral upper extremities,23 left foot, and cervical and thoracic spine “are the result of age related degeneration arthritis conditions exacerbated by obesity” and “are in no way related” to the 2009 accident or Claimant’s work for Employer, over the opinions of Dr. Loiduenxai (left shoulder and cervical spine), Dr. Sap-Anan (cervical spine), and Dr. Lees (left foot). Id. Based on Dr. Gendy’s credited opinion, the ALJ rationally concluded Claimant did not establish, by a preponderance of the evidence, that any of his “newly alleged” injuries, involving his left shoulder, cervical and thoracic spine, bilateral

22 The ALJ found “any insufficiencies” in Dr. Gendy’s evaluation resulting from his

inability to engage in a complete physical examination of Claimant or description of his working conditions is entirely “attributed to Claimant’s uncooperative nature and evasiveness during the evaluation.” D&O at 44. The ALJ drew “an adverse inference” that Claimant’s “full participation in the evaluation would have led to findings that were unfavorable to him.” Id. at 44-45.
23 The ALJ determined, based on Claimant’s statements that his bilateral upper extremity condition is related to his neck, HT2 at 39, 123-124, and Dr. Sap-Anan’s assessment that Claimant’s peripheral neuropathy is possibly related to an underlying degenerative spinal condition from the 2009 work injury, CX 4 at 3-4; CX 8 at 29-30, 35, that Claimant’s alleged bilateral upper extremity condition is a symptom of his cervical spine condition and not a separate injury. D&O at 46-47. Given this assessment, the ALJ focused her attention on whether Claimant established “industrial causation of [his] neck or cervical spine condition.” Id. at 47.

10 upper extremities, and/or left foot, are work-related. Id. She therefore denied Claimant’s claims for additional medical benefits related to these conditions. Id. at 55. We affirm the ALJ’s conclusions as they are rational, supported by substantial evidence, and based on credibility determinations that are neither inherently incredible nor patently unreasonable. Ogawa, 608 F.3d at 648, 653; Rhine, 596 F.3d at 1163, 1165; Sestich, 289 F.3d at 1159.

Section 7 – Reimbursement of Medical Benefits

Section 7(a) states an employer is liable for reasonable and necessary medical expenses for treatment of a work-related injury. See, e.g., M. Cutter Co., Inc. v. Carroll, 458 F.3d 991. 993 (9th Cir. 2006). Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth prerequisites for an employer’s liability for payment or reimbursement of medical expenses incurred by the claimant. See Maryland Shipbuilding & Dry Dock Co. v. Jenkins, 594 F.2d 404 (4th Cir. 1979). Under Section 7(d), an employee is entitled to recover medical expenses if he requests his employer’s authorization for treatment, the employer refuses the request, and the treatment thereafter procured on the employee’s own initiative is reasonable and necessary to treat the work injury. See 33 U.S.C. §907(d); Schoen v. U.S. Chamber of Commerce, 30 BRBS 112, 113 (1996); Davison v. Bender Shipbuilding & Repair Co., Inc., 30 BRBS 45, 47 (1996); Maguire v. Todd Shipyards Corp., 25 BRBS 299, 301 (1992); 20 C.F.R. §702.406. However, where the ALJ determines the treatment procured is unreasonable or unnecessary for the work injury, the employer is not liable for the cost. Ezell v. Direct Labor, Inc., 37 BRBS 11, 20 (2003); Hunt v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 364, 371 (1994), aff’d mem., 61 F.3d 900 (4th Cir. 1995).

In April 2022,24 Claimant requested Employer reimburse him for the following medical expenses: home care assistance; dental expenses;25 the difference between a

24 The ALJ noted Claimant’s acknowledgements that: only one airplane trip from

Thailand to Arizona is at issue, HT2 at 11; Employer was paying for the medical care and treatment being provided by physicians of his choosing in Thailand, id. at 11-12; there had been no medical bills submitted for payment since March 2022, id. at 13; and there were no outstanding medical bills for any treatment, including dental care, id. at 87-88; see also EX 10 at 42-43 (as of May 1, 2022, no outstanding payments are due to Bangkok Hospital).
25 As a preliminarymatter, we affirm the ALJ’s finding that Claimant is not entitled to reimbursement for any dental care. As she found, the record establishes Claimant “confirmed there were no outstanding bills for dental care,” and Employer “stated they had never denied” any treatment for, nor had they to date, received any dental bills for Claimant’s allegedly pending dry mouth treatment. D&O at 54; HT2 at 14.

11 business/first class airline ticket and an economy class airline ticket from March 2, 2022; and orthopedic sandals. The ALJ, recognizing that none of the prior OALJ decisions included findings directly relating to Employer’s obligation to pay for these expenses, considered them anew under Section 7(a) of the Act, 33 U.S.C. §907(a). D&O at 49. She set out the legal standard for awarding reimbursement of medical benefits, properly noting that entitlement is based on whether the treatment is reasonable and necessary for a work- related injury. Id. at 7-9. She thereafter separately addressed each of Claimant’s requests for reimbursement in terms of that standard. Id. at 49-55.

The ALJ found the record established Employer had, to date, voluntarily reimbursed Claimant’s expenses for home care assistance in Thailand as requested, so she focused on only one remaining bill for such services provided to Claimant in Arizona. 26 D&O at 49-

50. In this regard, she stated Claimant “seems to be seeking an order that ongoing home
    care services should be provided,” id. at 50, but she determined Claimant did not meet his burden to establish the necessity and reasonableness of the home care assistance in question. Given Claimant’s lack of credibility, the ALJ gave “no persuasive value” to his current requests or his stated need for home care services. She next found the record establishes the “two physicians who most recently recommended the provision of such services,” Dr. Lees in September 2020, Dr. Loiduenxai in 2021, and Dr. Lees again in September 2020, “did so only at Claimant’s specific request and based on the purported recommendation of the other, without explanation or support as to the medical necessity of those services.” Id. at 53. The ALJ determined she could not give any weight to Dr. Lees’s home care recommendations because he did not explain: 1) the necessity of such assistance to Claimant’s covered conditions; 2) his March 24, 2022 note that Claimant is unable to walk without “hands on assistance” (which is belied by surveillance video); or 3) the reason he increased his suggested number of daily visits in 2022 from what it was initially in 2020. She likewise accorded no weight to Dr. Loiduenxai’s recommendations regarding the necessity of home care assistance because they too contained no explanation, reasoning, or support and, as she previously noted, were based solely on Claimant’s incredible statements. Id. at 53. For these reasons, the ALJ concluded Employer is not liable for home care assistance, as it is not a reasonable and necessary treatment for Claimant’s work- related condition under Section 7 of the Act.

    The ALJ next considered Claimant’s April 2022 assertion that he could not fly
    economy class from Thailand to the United States due to immense pain caused by cramped

    26 The ALJ found the record contains an email reply from a claims examiner to
    Claimant dated April 29, 2022, stating that attendant care for December 7, 2021, to February 7, 2022, in the amount of $1,800 was processed via direct deposit and credited to Claimant’s account on February 17, 2022. D&O at 48 (citing EX 10 at 27).

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    seating.27 Rather, Claimant alleged his hip condition made it reasonable for him to fly business class so he could stretch out his hip as needed.28 Nevertheless, Claimant testified he paid approximately $500 for an economy class ticket, and Employer had not paid for the difference in cost between that and a business class ticket. HT2 at 88. The ALJ again found Claimant’s testimony “is not credible” and therefore rejected, as unpersuasive, his assertion that he could not fly economy class for fear of a hip dislocation. She noted that although the record establishes Claimant has suffered hip dislocations in the past, she found no medical evidence to establish that flying business class would prevent a hip dislocation. Instead, the record contains “fit to fly” certificates dated April 12, 2020, and April 28, 2021, indicating Claimant was medically cleared to fly on any domestic or international commercial flight.29 EX 14 at 623; EX 17b at 674. Consequently, the ALJ concluded Claimant did not establish, by a preponderance of the evidence, that flying business or first class is reasonable or necessary for treatment of his work-related condition. D&O at 55. Accordingly, she denied Claimant’s request for reimbursement for the difference in cost between an economy class ticket and a business class ticket. Id.

    Finally, the ALJ denied Claimant’s request for reimbursement of the claimed
    difference in his expense for orthotics and what Employer voluntarily paid. First, she found Claimant admitted he had not requested Employer’s authorization for treatment with a podiatrist or the purchase of orthotics prior to taking such actions. 33 U.S.C. §907(d)(1);

    27 The Office of Workers' Compensation Programs (OWCP) had issued a letter
    dated May 4, 2022, regarding Claimant’s travel reimbursement request. In the letter, the OWCP claims examiner declined to recommend Employer pay for Claimant’s most recent travel request, noting Claimant may “raise the NEW issues of his most recent reason for requesting business class reimbursement minus the economy class seat and have a formal decision [issued] by Judge Hoffman.” EX 12 at 2.
    28 Claimant further stated a claims examiner found in 2018 that it “seemed
    reasonable” for OWCP to recommend Employer pay the difference between business class and economy class, as Claimant had presented a January 12, 2018 medical certificate from Dr. Jitthamavanich recommending Claimant “fly with business class seat to prevent muscle cramp and DVT [deep vein thrombosis],” and the record established “Claimant needed treatment in the United States to avoid going before an [ALJ] to issue a ruling on a dispute that the parties could have worked at the OWCP level.” EX 12 at 1; see also HT at 29, 30.
    29 The ALJ noted Dr. Jitthamavanich’s 2018 recommendation but seemingly found
    it irrelevant to Claimant’s most recent travel request because it was, as the claims examiner noted, more than four years old and the record contained no updated evidence indicating flying business class would prevent cramps or DVT. D&O at 54.

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    Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33, 34 (1988). Second, she reiterated her finding that Claimant’s left foot condition, presumably the medical condition prompting the need for the orthotics, is not a compensable injury under the Act because it did not arise out of or in the course of his employment. Brooks v. Newport News Shipbuilding & Dry Dock Co., 26 BRBS 1, 7 (1992), aff’d sub nom. Brooks v. Director, OWCP, 2 F.3d 64 (4th Cir. 1993).

    The ALJ rationally reviewed the evidence relevant to Claimant’s reimbursement
    requests and made credibility determinations in accordance with her discretion as the factfinder. We affirm those credibility determinations, as well as her consequent denial of Claimant’s requests for reimbursement of expenses relating to home care assistance, dental work, airfare, and orthotic services as not reasonable or necessary for Claimant’s work- related injuries, because they are rational, supported by substantial evidence, and in accordance with law. 33 U.S.C. §907(d); Schoen, 30 BRBS at 113; Anderson, 22 BRBS at 23.

    Consequently, Claimant is not entitled to medical benefits for “new” injuries to his
    

    left shoulder, bilateral upper extremities, left foot, and cervical and thoracic spine injuries as the ALJ rationally concluded these conditions are not work-related. D&O at 45-49. However, Claimant remains entitled to those benefits previously awarded in this case consisting of ongoing temporary total disability benefits, as well as all reasonable and necessary medical benefits for work-related injuries to his left ankle, left knee, left hip, left leg, low back, right knee, right hip, right shoulder, psychological condition, and for dental

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    care relating to his prolonged use of morphine. See, e.g., 2016 ALJ Gee D&O at 2; 2011 ALJ Webster D&O at 19.

    Accordingly, we affirm the ALJ’s Decision and Order Denying Claim for
    Additional Medical Benefits.

    SO ORDERED.

                                   DANIEL T. GRESH, Chief
                                   Administrative Appeals Judge
    
                                   JUDITH S. BOGGS
                                   Administrative Appeals Judge
    
                                   MELISSA LIN JONES
                                   Administrative Appeals Judge
    
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