Time Limit for filing a Longshore and Harbor Workers' Compensation Claim.

The Parties

Mr. Suarez worked for Service Employees International as a heavy truck driver in Iraq in 2005. He later became a convoy commander.

Service Employees International, Inc. is a subsidiary of KBR Group Holdings, LLC. KBR is a global provider in the government services and hydrocarbons sectors.

The Facts

In January 2007, Mr. Suarez visited the medical clinic complaining of nausea, gas, body aches, and diarrhea.  He was diagnosed with gastroenteritis of an unknown cause.  He reported to the clinic for the same symptoms in April 2007.  The medical records do not report any 2008 visits, but Mr. Suarez reported the same symptoms in January, June, and November of 2009.

Mr. Suarez enjoyed a scheduled R&R at home in December of 2009. However, on the day his R&R was supposed to end, he saw his family physician complaining of gastroenteritis symptoms and vomiting.  Mr. Suarez requested medical leave to extend his home stay, and in January of 2010, he learned that cultures from recent tests were positive for an active infection: H. pylori.

Later in January of 2010, Mr. Suarez’s infection had resolved and his doctor cleared him to fly and to return to work with no restrictions.  Service Employees International filed a first report of injury on January 14, 2010.  It also filed a notice of controversion (opposition) on February 3, 2010.

In June and July 2010, Mr. Suarez visited the clinic in Iraq with gastric symptoms.  After each recovery, he returned to work with no restrictions.  He reported more of the same symptoms in August 2010 and returned to work after each episode. However, on August 22, Mr. Suarez was deemed non-compliant with the instructions for controlling this condition.  On August 24, he was released to return to work but was advised to be seen in Dubai because the clinic could not help him any further.  According to Services Employees International, Mr. Suarez’s employment was terminated on August 27, 2010, for breach of safety standards, and he was deemed ineligible for rehire.

After the termination of his employment, Mr. Suarez returned to the United States.  He worked for a trucking company from January until March 2011 when the company went bankrupt.  Mr. Suarez testified that, during this period, he continued to have episodes of stomach upset. These caused delays in delivering his cargo.  On April 17, 2011, Mr. Suarez filled out an LS-203 claim form seeking benefits under the Longshore and Harbor Workers’ Compensation Act, alleging that he suffered from a work-related “bacteria stomach infection” and that the date of his injury was December 29, 2009.  On the form, he stated that his pay stopped in “Jan. 2010” and resumed “Jan. 30, 2010”. Service Employees International filed a second notice of controversion on June 4, 2011.

From May to July 2011, Mr. Suarez worked for Wiley Sanders Trucking.  He claimed the same gastroenteritis issues inhibited his job performance.  The record contains evidence of two additional jobs Mr. Suarez worked from August 2011 to March 2012 and from March to October 2012.  The record contains medical reports dated February 2012, September 2013, and December 2013 involving complaints of gastric symptoms similar to Mr. Suarez’s previous episodes.

On December 27, 2013, Mr. Suarez saw a gastroenterologist in accordance with a referral by his primary care physician. The gastroenterologist determined that there was scattered diverticulitis (inflammation, generally in the colon) and that Mr. Suarez could have a small intestinal bacteria overgrowth, post-infectious irritable bowel syndrome (IBS), or even fructose or lactose intolerance.

Employment Conditions

The injuries

Mr. Santos sustained gastric injuries although some may have come from an H. pylori infection. He was formally diagnosed with scattered diverticulitis. However, the gastroenterologist noted that Mr. Suarez could have a small intestinal bacteria overgrowth, post-infectious irritable bowel syndrome (IBS), or possibly even fructose or lactose intolerance.

The employer’s actions

Service Employees International filed a first report of injury on January 14, 2010.  The company also filed a notice of controversion (opposition) on February 3, 2010.

Results of the Initial Hearing

The administrative law judge determined that Mr. Suarez was not a credible witness because, while the description he gave of his symptoms was consistent, his testimony and reporting regarding the onset, duration, and history of his condition were not.  Furthermore, a psychiatrist felt Mr. Suarez was exaggerating his symptoms and was malingering.

However, based on the undisputed medical evidence of gastrointestinal illness and conditions in Iraq which could have caused such an illness, the administrative law judge found that Mr. Suarez established a clear case of a compensable injury.  The administrative law judge found that Service Employees International failed to rebut the presumption, as he found speculative the opinions of the examining physicians that the cause of the infection/condition was the well water at Mr. Suarez’s Texas home.  However, assuming there was substantial evidence to rebut the presumption, the administrative law judge found that, in weighing the evidence as a whole, there was sufficient evidence to establish that Mr. Suarez sustained a work-related injury.

In categorizing the work-related injury, the administrative law judge thereby rejected Mr. Suarez’s assertion that the condition he suffered from was an “occupational” disease which controlled the timeliness of the filing of his claim.  Instead, the administrative law judge found that Mr. Suarez’s condition was not an occupational disease, so a different appropriate section would determine whether the claim had been filed in a timely manner. As the parties agreed that the date of injury was December 29, 2009, the day before Mr. Suarez requested medical leave due to his condition, and as Service Employees International filed its first report of the injury on January 14, 2010, the administrative law judge found that the tolling ended and the one-year time for filing a claim began to run on that date.  He found that Mr. Suarez filed his claim for compensation on May 27, 2011 and that such claim was untimely. Therefore, the administrative law judge dismissed the claim.

The Appeal

Mr. Suarez filed a motion for reconsideration, contending the administrative law judge found a compensable injury but failed to award medical benefits, which are never time-barred, and that the administrative law judge also erred in finding the condition to be a traumatic injury instead of an occupational disease.  On reconsideration, the administrative law judge agreed that Mr. Suarez was entitled to medical benefits for his gastric condition.  Except he declined to revisit the traumatic injury/occupational disease issue and restated his conclusions that the injury was not an “occupational disease” and the claim was not timely filed.

Mr. Suarez appealed the decisions, challenging the findings that his condition was not an occupational disease and that the claim was untimely filed.  Service Employees International responded and urged affirmation of the finding that the claim for disability benefits was time-barred.

The Ruling on Appeal

The administrative appeals judges found that Mr. Suarez asserted he was not aware of the “full character” of his injuries until August 2010, when he was diagnosed with the chronic condition IBS.  However, Mr. Suarez was aware he suffered incapacitating gastric episodes in 2007, 2009, and 2010, which had similar symptoms and had been diagnosed under a number of names.  That his GI injury was not identified as IBS until August 2010 did not make it an “unknown” injury or prevent him from knowing the “full character” of his injuries until that diagnosis.

As a result, the administrative appeals judges determined that Mr. Suarez’s claim was not filed in a timely fashion.

The Takeaway

Just because a disease or injury does not have an official name does not mean it is unknown to a claimant. Furthermore, delays can derail any claim.

Santos D. Suarez v. Service Employees International, Inc. c/o KBR Claims