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DECISION AND ORDER CONTINUING BENEFITS
This is a claim for benefits under the Longshore Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901, et seq. (“the Act” or “LHWCA“), as extended by the Defense Base Act, 42 U.S.C. §§ 1651 et seq. On June 14, 2010, the District Director issued a Compensation Order based on the stipulations of the parties (CXl ). Employer/Carrier terminated payments under that Order on July 30, 2013, by reason of an independent medical examiner’s report indicating Mr. Ibrahim had reached maximum medical improvement (CX2, CX3). Claimant seeks reinstatement of his benefits under the June 14, 2010, Compensation Order. The hearing in this matter took place before me on September 30, 2014, in San Francisco, California.
I conclude, on the record before me, that Employer/Carrier has not shown Mr. Ibrahim has reached maximum medical improvement. Employer/Carrier was not justified in terminating Mr. Ibrahim’s benefits, and those benefits must continue. Mr. Ibrahim contends he has been unable to work since a May 4, 2005, incident at Camp Arifjan in Kuwait, when someone placed a realistic-looking but non-functional bomb in the truck he was driving (”the fake-bomb incident”), allegedly in support of a security exercise. In his view, that incident left Mr. Ibrahim psychologically impaired. This assertion is consistent with the stipulations upon which the Compensation Order is based. Mr. Ibrahim has been receiving medical care since the fake-bomb incident, and continues in therapy, though his treating psychologist, Dr. Beall, describes him as ”therapeutically paralyzed” and resistant to change because of his injuries (CX7, p. 25,lines 9-15).
Employer/Carrier, on the other hand, relies on Pointer v. Service Employers International, 44 BRBS 83 (ALJ) (January 21, 2010), to argue that Mr. Ibrahim sustained only a minor injury in the fake-bomb incident, and quickly recovered from it. As Employer/Carrier sees it, Mr. Ibrahim had a pre-existing delusional disorder even before the fake-bomb incident, and it is that pre-existing disorder, or perhaps outright malingering, rather than the fake-bomb incident itself, that causes Mr. Ibrahim’s current distress. Under this theory, the fake-bomb incident injured Mr.lbrahim, and he was entitled to benefits under the Act as a result. But he quickly reached maximum medical improvement after that injury, returning to “baseline” in no more than three months (RX9, p. 31). 1 In Employer/Carrier’s view, Dr. Hilton and Dr. McCann’s opinions that Mr. Ibrahim suffered from a pre-existing delusional disorder, or is now malingering (Employer/Carrier’s Post-Trial Brief, pp. 28-29), comprise “substantial countervailing evidence” under Holmes v. Universal Maritime Service Corp., 29 BRBS 18, 20 (1985), and accordingly deprive Mr. Ibrahim of the benefit of the Section 20(a) presumption (Employer/Carrier’s Post-Trial Brief, pp. 24-25). Because it does, in Employer/Carrier’s view, the claimant bears the burden, in this case, of showing his entitlement to benefits by a preponderance of the evidence under Director, OWCP v.Greenwich Collieries, 512 U.S. 267 (1994) – a burden which Employer/Carrier argues the claimant does not carry in this case.
The evidential record in this case suffers from one great limitation. Nowhere in the record before me is there any direct medical evidence of Mr. Ibrahim’s condition before the fake bomb-incident. Neither side has a single writing, whether medical report, progress note, clinical record, appointment-reminder card, or nurse’s scribble on the back of a cocktail napkin, created before 2005. Neither side has any percipient witness to Mr. Ibrahim’s mental condition before 2005, except for Mr. Ibrahim himself. And this is problematic for both parties because of what Dr. Hilton calls Mr. Ibrahim’s “complicated psychiatric presentation” (RX7, p. 24), and the “trouble remembering, trouble concentrating, and having his mind go blank” which Mr. Ibrahim
1 In Pointer, one medical expert, Dr. Silverman, concluded the claimant “may have been aggravated by his time in I:caq, and that aggravation continued for a period following his return,” but thereafter “his condition … returned to a level that would have existed even if Claimant had never gone there.” Another medical expert, Dr. Lucas, “went even further and opined that Claimant’s employment … did not induce or precipitate any of his symptoms, which are a function of a pervasive condition that comes and goes.” 44 BRBS at 94-95 (ALJ). Employer/Carrier seeks striking parallels in the testimony of Drs. Silverman and Lucas in the Pointer case and the testimony of Drs. Hilton and McCann in this one admitted to Dr. McCann (RX6, p. 35). This means neither party is able to demonstrate a reliable “baseline”-that is, a solid, clear picture of Mr.lbrahim’s mental functioning before the fake bomb incident, which we may now compare his present mental condition. And it is that deficiency in the evidentiary record, in my view, which drives the present controversy between the parties.
Claimant contends this deficiency is not fatal to his claim. He contends, correctly, that there is nothing in the record before me to suggest he ever underwent any kind of psychiatric care before the fake-bomb incident. Dr. Beall (CX7, pp. 23-25), Dr. Hilton (RX7, p.24), and at least at one time even Dr. McCann (RX6, pp. 42-43) concluded Mr. Ibrahim now suffers from mental symptoms induced by trauma. Even today, Employer/Carrier admits the fake-bomb incident was sufficiently traumatic to cause post-traumatic stress disorder in Mr. Ibrahim (RX1, pp. 3-4). And when a work-related injury so much as contributes to, combines with, or aggravates a pre-existing disease or underlying condition, the entire resultant disability is compensable. Independent Stevedore Co. v. O’Leary, 357 F.2d 812 (9th Cir. 1966).
In response, Employer/Carrier seeks to turn the limitation of the evidentiary record against Mr. Ibrahim. It advances two nunc pro tunc diagnoses of a pre-existing psychiatric condition (RX7, pp. 23-24; RX8, pp. 32-34), mixed in with a suggestion of outright malingering (RXS, p. 34), and argues Mr. Ibrahim must now disprove them, or forfeit his benefits under the Act. One can barely state this argument bluntly without feeling vaguely creepy about it, and Employer/Carrier studiously avoids stating it bluntly. But it is wrong as a matter of law, and even if it were not, there are not sufficient facts to support the retroactive diagnoses.
Claimant Need Not Disprove Employer’s Causation Argument
As stated above, the journey down Employer/Carrier’s rhetorical rabbit hole begins with Pointer v. Service Employers International, 44 BRBS 83 (AlJ) (January 21, 2010), in which an administrative law judge denied benefits under the Act to a claimant who alleged psychic injury in the course and scope of his employment in Iraq. The judge concluded the claimant was in fact suffering psychiatric distress, but concluded that distress was caused by a pre-existing mental condition, rather than the events in Iraq. In that regard, Pointer bears a superficial similarity to this case.
But there are several reasons why Pointer does not apply here. First, it is the decision of an administrative law judge, and lacks stare decisis effect. Second, in Pointer,the medical evidence was virtually unanimous, 44 BRBS at 83 (ALJ), while in this case, the medical experts disagree. Third, the question in Pointer was whether the court should issue a Compensation Order in the first instance. In this case, a Compensation Order is already in place, and the question before me is whether Mr. Ibrahim has reached maximum medical improvement.
This last point is significant, because in this case Employer/Carrier appears to have had a change of heart about the extent of the injury caused by the fake-bomb accident.2 That change of heart, in turn, is apparently based on “new” medical evidence, namely, the November 20, 2012 (RX8) and June 12, 2014 (RX9) reports of Dr. McCann. The most common procedural remedy for an employer who is subject to a Compensation Order, and who discovers new medical evidence suggesting the employer’s obligation under the Order is not as extensive as the employer previously thought, is modification of the Compensation Order under section 22 of the Act, 33 U.S.C. §922. Employer/Carrier could have done so here, since Section 22 provides a vehicle for “the fact-finder … to consider newly submitted evidence or to further reflect on the evidence initially submitted.” Hudson v. Southwestern Barge Fleet Services, Inc., 16 BRBS 196 (1989).
Of course, had Employer/Carrier done so, the finder of fact would “evaluate the medical and vocational evidence submitted by both parties, and …determine the weight it should be accorded, applying the same standards of proof that are required in an initial adjudication ” {emphasis added). Jensen v. Weeks Marine, Inc., 34 BRBS 147, 151 (2000). There would have been no room for Employer/Carrier to argue in a modification proceeding that Mr. Ibrahim was required to disprove the employer’s new medical theories. On the other hand, by not attacking the existing Compensation Order directly (while nevertheless interpreting it differently than before), Employer/Carrier could allege “maximum medical improvement,” unilaterally terminate Mr. Ibrahim’s benefits, and wait to see if he had the chutzpah to do anything about it procedurally much more simple, and much less expensive, than a motion under Section 22.
Even so, I disagree with Claimant when he argues that “[c]ompensability … is the law of the case and not an issue for adjudication” in the matter before me (Claimant’s Closing Argument Brief, p.5). Because there is a Section 22, the inquiry is not that simple. I am not prepared to conclude, on the record before me, that Section 22 is Employer/Carrier’s exclusive procedural remedy in this case, although I think it a more appropriate one. But at the same time, termination of benefits by reason of alleged maximum medical improvement should not be a back door to modification that shifts the employer’s burden to the claimant. If it were, no employer would bother with Section 22 modification ever again. Consequently, while the causation issue has come before me by an unusual route, I will decide it in the interest of judicial economy- but I will decide it holding Employer/Carrier to the same standards of proof required in an initial adjudication. Additionally, Employer/Carrier relies on Holmes v. Universal Maritime Service Corp., 29
BRBS 18, 20 (1995) for the proposition that its mere introduction of evidence challenging “the existence of a causal relationship” suffices to shift the burden of proof on causation to the claimant. Post-Trial Brief by Employer and Carrier, p. 25. Employer/Carrier is stretching Holmes beyond the breaking point. In Holmes, “Dr. Burton clearly opined that the claimant’s
2 Employer/Carrier in this case does not expressly admit that it is interpreting the Compensation Order differently today than it did on the day the District Director issued it. But if Dr.McCann is right to suggest that Mr. lbrahim’s fake-bomb distress should have resolved in no more than three months (RX9, p. 31), then it necessarily follows that Employer/Carrier has been unnecessarily paying benefits to Mr. Ibrahim for more than four years, something an insurance carrier is unlikely to do by inattention or oversight. The employer’s conduct, in this case, speaks persuasively enough to make an express acknowledgment unnecessary present condition was not caused by his 1979 back injury,” and ”the administrative law judge rationally credited Dr. Burton’s opinion over those espoused by Drs. Pizzano and Post.” 29 BRBS at 20. It was not the mere introduction of Dr. Burton’s opinion into evidence which established a lack of causation, but the ALJ’s finding that Dr. Burton’s opinion was the most credible. I make no comparable finding in this case, for the reasons set forth below.
The Record Does Not Support Employer’s Causation Argument
As discussed above, Employer/Carrier argues Mr. Ibrahim suffered relatively inconsequential injury from the fake-bomb incident, and quickly recovered from it. His current psychiatric problems, in Employer/Carrier’s view, are attributable entirely to a pre-existing mental condition caused by earlier trauma. Two doctors have provided reports supporting that conclusion: Dr. Hilton and Dr. McCann. I consider the opinion of each in tum.
Dr. Hilton’s Opinion
Michael C. Hilton, M.D., did not testify at the hearing, but examined Mr. Ibrahim on December 11, 2006, and provided a written report (RX7). At Dr. Hilton’s examination, Mr. Ibrahim denied a family history of psychiatric problems, alcohol problems, drug problems, or significant medical problems. But he acknowledged his brother, Ahmad, had been executed in 1988 by the Iraqi government under Saddam Hussein (RX7, p. 2). His brother Hadir, a captain in the Iraqi secret police, had recently been injured in a car bombing (RX7, pp. 2-3). Mr. Ibrahim told Dr. Hilton he had served in the Iraqi army himselfuntil1990, when he sought asylum from American soldiers in Saudi Arabia (RX7, p. 3), and that while in the army “[h]e was frequently confronted with death on the front through missile attacks mostly at night and on one occasion he and two other individuals were in a car that was bombed by a missile. The two other individuals were killed.” (RX7, p. 4). As a result of that attack, Mr.lbrahim spent a week in the hospital with “a significant laceration to his head and severe smoke inhalation damage to his lungs” (RX7, p. 4). He also “saw individuals killed and their bodies grossly disfigured right in front of him on eight or nine occasions during missile attacks” (RX7, p. 4). As a result, in Dr. Hilton’s opinion, “Mr. Ibrahim was clearly suffering from emotional distress as a result of his experiences in Iraq in the 1980s and 1990. He had become a sensitized individual somewhat consumed by his perception of injustices he has observed all around him” (RX7, p. 22). Dr. Hilton was able to draw all these conclusions without examining a single medical record pre dating the fake-bomb incident (RX7, pp. 11-27).
Significantly, Dr. Hilton acknowledges that “Mr. Ibrahim’s symptoms of anxiety, depression, and anger persisted” in the weeks following the fake-bomb incident (RX7, p. 23). What is more, he concludes Mr. Ibrahim’s psychiatric condition as of the date of the examination “is no longer a direct result of the circumstances that occurred on May 04, 2005 (the pseudo bomb placement)” (emphasis added) (RX7, p. 23)- suggesting that, for a time, at least, it was. Without doubt, Dr. Hilton’s opinion supports the notion that Mr. Ibrahim recovered in fairly short order from the trauma of the fake-bomb incident. But the reason Dr. Hilton believes this is because the fake-bomb incident, although traumatic, was not, however, as traumatic an event as many of the experiences Mr.lbrahim had suffered during the course of his lifetime and in fact was no where [sic] near as traumatic an event as the six months of torture that he faced during his detention by Iraqi army intelligence (RX7, p. 23).
In other words, Dr.Hilton infers the severity of Mr. Ibrahim’s psychological reaction from Dr. Hilton’s own opinion about the objectivity of the horror that set it off. To Dr. Hilton, torture is objectively more terrible than a fake bomb, and therefore must have caused Mr. Ibrahim greater psychic distress than the fake bomb did, although there is no evidence beyond this supposition to suggest this is so. For me, this hypothesis, while possible, does not make up for the evidential deficit. Dr. Hilton has no personal knowledge of the earlier traumatic experiences, or how they affected Mr. lbrahim. Dr. Beall, for example, testified he tried to determine whether Mr. Ibrahim’s being tortured, or the execution of his brother, “had impacted him in terms of his presentation of PTSD symptoms, and I could not find what I would call emotional loading or post trauma conditions around those events” (CX7, p. 32, lines 4-8; p. 54, line 12- p. 55,line 9). Dr. Hilton reports no such attempt. This is not to say that Dr. Beall must be right and Dr. Hilton must be wrong, but it does suggest there is as much reason to disagree with Dr. Hilton as there is to agree with him-which is to say, not much at all, either way. In fact the situation I face here is one Dr. Beall described quite accurately at his deposition:
Q:Can we determine accurately whether or not the psychological conditions or the paranoia that the Claimant has started in ’05 and has been triggered by all these other events that you just mentioned or whether the ’05 incident was just the triggering event from prior- a prior psychological problem?
A: As I’ve tried to explain, Counsel, the problem I would have is speculating the impact of the pre-2005 incident. I don’t-I can’t really accurately nail down, and I don’t think anyone can, the impact of those pre-2005 traumas (emphasis added). CX7, p. 59, lines 8-18; see also CX7, p. 261ine 24-p. 27line 16. I accept Dr. Beall’s opinion that Mr. Ibrahim’s condition before the fake-bomb incident is impossible to establish with any degree of certainty now. From the totality of his testimony at the hearing, I assume Mr. Ibrahim can provide little detail about it, and there are no medical records available to anyone. Dr. Hilton’s opinion is a plausible hypothesis, but nothing more. It is certainly not supported by any preponderance of the evidence.
Opinions of Dr. McCann
David L. McCann, M.D., likewise did not testify at the hearing, but he examined Mr. Ibrahim and provided reports dated on November 8, 2005 (RX6); June 13, 2006 (which does not appear in the evidentiary record, see RX9 p. 1); November 20, 2012 (RX8), and June 12, 2014 (RX9). In the first of these reports, Dr. McCann concluded, “Although the claimant was exposed to numerous traumatic experiences before he left his native Iraq to come to the United States 15 years prior to this evaluation there is no evidence that he previously experienced the symptoms of Posttraumatic Stress Disorder (PTSD). He denied prior problems with depression or anxiety.
He acknowledged that he had strong emotional reactions to past events but none that continued to haunt him” (RX 6, p. 4). The experiences Mr. Ibrahim related to Dr. McCann at that evaluation included these: As a young man [Mr. Ibrahim] was in the military and served as a combat engineer in the Iran-Iraq war. He was on the front lines and suffered-serious injuries – in.an incident that killed two of his colleagues. After Sadam [sic] Hussein was driven from Kuwait in 1991 he was victimized as a consequence of the Shia uprising and his house was destroyed by a bulldozer. His brother was also a military officer who reportedly declined to kill citizens in Northern Iraq for which he was subsequently imprisoned, tortured and executed. The claimant was also detained for six months in intelligence facilities where he was tortured. After he was released from custody he paid about $29,000 so that he could leave Iraq. He was able to enter the United States with refugee status (RX6, p. 4).
Dr. Hilton provides more detail in his report than Dr. McCann does about some of these experiences, but both doctors appear aware of many of the same events. Dr. McCann concluded Mr. Ibrahim’s was “a case of severe Posttraumatic Stress Disorder in the context of a lifetime of trauma, disruption, and present lack of social or family support. The prognosis for this condition under these circumstances is poor” (emphasis added). He diagnosed Mr. Ibrahim with “Posttraumatic Stress Disorder, Chronic. Posttraumatic Stress Disorder was directly caused by the incident in question where a military officer placed an item resembling an improvised explosive device in his personal vehicle.” RX6, p. 11.
Yet in his November 20, 2012, report, Dr. McCann, like Claude Rains before Humphrey Bogart, was shocked shocked! -to realize “Dr. Beall’s updated records revealed that Mr. Ibrahim had been in the Iraqi military and participated in combat during the Iran/Iraq war. He was seriously injured, and a number of his fellow soldiers were killed in a combat incident. He reported that his brother had been imprisoned, tortured and executed. He reported that he had been imprisoned by Saddam Hussein and undergone torture over a period of 6 months” (RX8, p.
8).3 Judging from his November 8, 2005, report, none of these things should have come as a ‘Dr. McCann went on to observe that “[t]he complexity of evaluation is enhanced because, absence of evidence is not evidence of absence, i.e. just because there was no documentation of prior PTSD symptoms does not mean that did not actually exist, but were denied a purported history of depression since the incident of 05/04/0S was noted in prior reports.” Here the doctor comes remarkably close to channeling Father Guido Sarducci, who once told an audience that flying saucers were equipped with special ray beams that impaired human memory. Consequently, “if surprise to Dr. McCann. Nevertheless, Dr. McCann relied on them to draw an entirely new set of conclusions:
Recent evidence has called Mr. Ibrahim’s diagnosis of Posttraumatic Stress Disorder due to the incident of 05/04/05 into question. He was previously exposed to terrifying incidents serving as a solider in combat in Iraq, when he was injured and soldiers close to him were killed. He was imprisoned and tortured for an extended period of time. His fiance was reportedly killed by a bomb in 1991. A brother was imprisoned, and executed and [sic} another family member was missing. Mr. Ibrahim had concealed these events. All of these events, especially in accumulation, were much more likely to cause Posttraumatic stress Disorder than the official fake bomb drill which occurred on 05/04/05. The event of 05/04-05 could have triggered a temporary aggravation of prior post-traumatic symptoms (emphasis added) (RXS, p. 32).
Warming to his topic, Dr. McCann continued:
Mr. Ibrahim’s psychotic disorder with persecutory beliefs could well have caused most of his problematic symptoms. There is no direct causal connection between Mr. Ibrahim’s psychotic disorder and the incident of05/04/05. If he actually experienced posttraumatic symptoms, they are most likely due to aggravation by a pre-existing traumatic events [sic] and should have returned to baseline with time. Mr. Ibrahim concealed his history of severe psychological trauma. The cause of perpetuation of symptoms is with little doubt, motivation for secondary gain” (emphasis added) (RX8, p. 35). In his most recent report, Dr. McCann states At the time of the initial independent medical evaluation on 11108/05, Mr. Ibrahim was specifically asked to identify events or experiences which might be similar to the event which he experienced on 05/04/05. He failed to disclose any such information. Subsequently in the clinical records of his psychologist, Dr. Beall, Mr. Ibrahim disclosed that he had imprisoned and tortured by [sic} the agents of Saddam Hussein. He revealed that his fiance had been killed by a bomb in 1991. He revealed that his brother had been imprisoned and executed. He revealed that family members were missing. He revealed that he had been a soldier in combat during the Iran-Iraq war, surviving combat experiences which had injured him and killed his fellow soldiers in close proximity. The severity and potential impact of these past experiences, by any measure, you’ve never seen one, you probably see ’em all the time.” Absence of evidence may not be evidence of absence, but it is even less persuasive as evidence of presence would be far more significant than the military exercise which was conducted on 05/04/05 (RX9, p. 25).
For Dr. McCann, “[t]he causes of Mr. Ibrahim’s claimed disability need to be evaluated in the context of other evidence. Mr. Ibrahim’s symptoms are characteristic of Delusional Disorder, Personality Type, a condition which is not caused by single incident traumatic events” (RX 9, p. 26). To Dr. McCann, this indicates “[t]he event of 05/04/05 is but a pale shadow of prior traumatic events in Mr. Ibrahim’s life” (RX 9, p. 26). Even worse, the evidence supports a diagnosis of Malingering. Mr. Ibrahim has deliberately distorted and omitted information to favor his claim. Specifically, at the time of the Independent Medical Evaluation he denied and failed to reveal any of the serious and tragic psychologically traumatic events in his life which had occurred before the day of 05/04105″ (emphasis added) (RX9, p. 29).
Mr. Ibrahim did no such thing. The first time he met them, he told both Dr. Hilton (RX7, pp. 2-4) and Dr. McCann (RX6, p. 4) of most, if not all, of the traumatic events which Dr. McCann now accuses him of having deliberately concealed for secondary gain. He also shared at least some of these events with Dr. Beall (CX7, p. 30, line 25-p. 31, line 21). 4 The notion that Mr. Ibrahim was not forthcoming about his traumatic experiences before the fake-bomb incident is demonstrably false. There is no “new” medical evidence for Dr. McCann to rely on, but simply his own failure to remember something he already knew. Accordingly, Dr. McCann’s stated reason for the change in his opinion is patent nonsense.
Earning Capacity
Because Employer/Carrier does not overcome the Section 20(a) presumption which Mr. Ibrahim would have claimed in an original proceeding, it is not necessary for me to consider the vocational expert testimony Employer/Carrier has presented.
ORDER
Employer/Carrier must continue to provide Mr. Ibrahim with benefits under the Compensation Order of June 14, 2010. Employer/Carrier was not justified in terminating those benefits under its Notice of Controversion of Right to Compensation dated July 30,2013.