Dr John Dorland Griffith Exposed Case No. 2008-LDA-00287
U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7365 (FAX)
Issue Date: 14 June 2010
In the Matter of
DARCY FRASER Case No. 2008-LDA-00287
Claimant OWCP No. 02-174615
KBR/SERVICE EMPLOYEES INT’L
INSURANCE COMPANY OF THE STATE
David C. Barnett, Esq.
Ft. Lauderdale, FL
For the Claimant
Billy J. Frey, Esq.
Jerry R. McKenney, Esq.
For the Employer/Carrier
Before: JEFFREY TURECK
Administrative Law Judge
DECISION AND ORDER
This is a claim for temporary total and temporary partial disability arising under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seq., as extended by the
Defense Base Act, 42 U.S.C. §1651 et seq. (hereinafter referred to jointly as “the Act”). A
formal hearing was held on January 7, 2009 in Ft. Lauderdale, Florida. At the hearing, the
record was kept open for the parties to file post-hearing depositions of their medical experts and
other evidence. The record was finally closed on October 9, 2009, and the parties’ briefs were
timely filed on November 30, 2009. On July 6, 2009, I issued an order denying employer’s
motion for a protective order regarding a Freedom of Information Act (“FOIA”) request for the
videotape and transcript of the deposition of its medical expert, Dr. Griffith. Employer filed an
appeal of that ruling with the Benefits Review Board (“BRB”) on August 20, 2009. On October
23, 2009, the BRB dismissed the appeal, holding that neither an administrative law judge nor the
BRB have jurisdiction to grant a motion for a protective order under the FOIA.
Claimant contends that he suffers from psychiatric or psychological injuries,1 including
Post Traumatic Stress Disorder (“PTSD”),2 due to an incident which occurred during his work
for employer in Iraq. He adds that this condition caused him to be out of work for a year and has
reduced his wage-earning capacity thereafter. Employer contends that claimant does not suffer
from PTSD and did not incur a compensable injury from his employment in Iraq.
FINDINGS OF FACT AND CONCLUSIONS OF LAW3
The claimant, Darcy Fraser, is 57 years old. He was born and grew up in British
Columbia, Canada. After graduating from 12th grade, he spent two years studying heavy duty
mechanics. He is married to his fourth wife, with whom he owns a home in Thailand. He
considers the home in Thailand to be his primary residence. His wife has two children who live
with them. At the time of the hearing, he was living with family members in Kamloops, British
Columbia. He had been there since September, 2008.
Claimant spent most of his working life as an over-the-road truck driver in the United
States and Canada. In January, 2006, while living in Kamloops, he applied for a job with KBR
and eventually was hired to work in Iraq. He left the United States for Iraq on August 9, 2006,
finally arriving in Baghdad on about August 15, 2006. Claimant was hired to drive fuel trucks.
On a daily basis, he would drive his truck to camp Victory, about 30 miles from the Green Zone
in Baghdad, where he would pick up fuel and bring it back to the Green Zone. Once a week, he
would deliver fuel to Ahilla, a small base 120 miles from the Green Zone. He worked 12 hours a
day, seven days a week. He remained in this job through December, 2007, at which time he
voluntarily changed to a job emptying out septic tanks. The advantages to this job were that it
was entirely in the Green Zone, which was presumably safer, and he worked nights, when it was
much cooler. His pay was the same as it was driving the fuel truck.
On the evening of March 13, 2008, claimant testified that he drove his truck up to a check
point. Going through checkpoints was a routine part of his job. He waited in line until the trucks
1 For the sake of convenience, these will be referred to as psychiatric injuries in this decision.
2 Employer argues that the case should be limited to whether the claimant has PTSD, noting that the Form LS-18
listed only PTSD as the alleged injury. However, in his December 8, 2008 Pre-Hearing Statement, and at the
hearing (TR 8-9), claimant pointed out that he was seeking compensation for psychological injuries, and was not
limiting the claim to one specific psychological/psychiatric diagnosis. Since the employer’s psychiatric expert did
not examine the claimant until January 6, 2009, and the extensive depositions of the parties’ experts were conducted
well after the hearing, no prejudice could have resulted even if employer first become aware that the claim was not
limited to PTSD only a month before the hearing.
3 Citations to the record of this proceeding will be abbreviated as follows: CX – Claimant’s Exhibit; EX –
Employer’s Exhibit; TR – Transcript of the January 9, 2009 hearing; TRG – Transcripts of Dr. Griffith’s
depositions; TRC – Transcripts of Dr. Carmichael’s March 5 and March 30, 2009 depositions; TRCC – Transcript of
Dr. Carmichael’s May 8, 2009 deposition.
ahead of him went through. Then he drove up to the stop sign at the checkpoint and waited for
the military guard to signal him to go forward. When he believed he saw the guard signal him to
go forward, he started moving. He had barely started moving when someone ordered him to
stop. At the same time, a soldier in a bunker 20 to 25 feet in front of the truck opened fire on the
truck with short bursts from a machine gun. At least three rounds struck the truck. Because the
claimant was high up in a truck, the bullets went underneath him, and he was not hit. TR 26-28,
Claimant testified that he was scared, and froze. Then several soldiers came toward his
truck with their weapons drawn and pointing at him. Then everyone stopped moving. Another
driver, who was waiting in line behind claimant, walked up and opened the door of claimant’s
truck. Then two or three military police vehicles pulled up. Claimant was ordered out of his
truck at gunpoint, handcuffed, searched and put in the back of one of the police vehicles. He was
questioned by the military police at the scene. At that point, the police apparently realized that
the incident had resulted from a miscommunication between claimant and the soldiers at the
checkpoint. Claimant’s handcuffs were removed. TR 29-31.
While still at the scene, claimant’s blood pressure was checked by a KBR nurse, who
heard about the incident and came over to see if she could help. Claimant was then taken to the
KBR clinic, where his blood pressure was again checked and he was given urine and breathing
tests. He then went either to KBR’s safety or security office, where he gave a statement. He was
released from duty for the rest of his shift due to stress. TR 31-32; CX 10, at 126.
Claimant testified that he could not sleep that night. Further, he had a nightmare in
which he relived the whole incident at the checkpoint. TR 32, 67. He continues to have
recurrences of that nightmare, as well as another nightmare in which “I’m in a building and the
military police, a military tank or a Humvee is coming towards the building, and I can’t seem to
get out.” TR 67. He reported to the clinic the following day, and was given a sick slip because
he was not fit for work. TR 32. Claimant was scheduled for an R & R several days after the
incident. He asked to move it up so he would not have to return to work yet. A couple of nights
later, after having another nightmare, he went outside to his front steps to try to relax. He was in
the process of sitting down when he heard gunshots coming from the shooting range. This made
him urinate in his pants. CX 9, at 15. Shortly, his request to move up his R & R was granted, so
he went to Thailand, where his wife and step-children lived and he owned a house. TR 33. He
considered Thailand his home even though he had never lived there for more than a few weeks at
a time. TR 70.
Once he got to Thailand, he contacted KBR’s Employee Assistance Program (“EAP”) in
Iraq to try to get his R & R extended. That request was denied. Then he requested a change to a
new job classification, which also was denied. Finally, he asked for a referral to a doctor in
Thailand, but none was forthcoming. TR 35; CX 7, at 11. On his own, claimant started seeing
Dr. Weera (or Weere) Churujiporn, a Thai psychiatrist who spoke English.4 Dr. Churujiporn saw
4 Employer’s Exhibit 24 is a report from a private security firm which was asked to locate the psychiatrist claimant
saw in Thailand and determine his qualifications. The firm’s agent identified a Dr. Weera Churujiraporn at an
address with similarities to that on the doctor’s April 20, 2008 note but with significant differences as well.
Compare EX 24, at 5 with EX 25, at 2. Due to the differences both in the spelling of the doctor’s name and the
claimant for the first time on March 28, 2008, and diagnosed him with PTSD due to the incident
in Iraq. Further, he prescribed an antidepressant, Fluoxetine (generic for Prozac). CX 5.
Claimant testified that Dr. Churujiporn told him he should not return to “the environment” (TR
39); and the doctor’s two very brief notes do not discuss whether claimant should return to work
in Iraq. Dr. Churujiporn treated claimant 15 times, approximately once every other week,
through September 21, 2008 (CX 12), at which time claimant moved with his wife to his
family’s home in Canada. His wife returned to Thailand in December, 2008.
Claimant did not see a psychiatrist or therapist for his psychiatric problems in Canada
until mid-December, 2008, when he saw Dr. Carmichael, a clinical psychologist who specializes
in treating patients with PTSD. E.g., CX 11, at 1, 8. Claimant testified that he picked out Dr.
Carmichael from the telephone book, although Dr. Carmichael testified that he was asked to
examine the claimant by his attorney. TR 80; TRC at 15. These scenarios are not necessarily
inconsistent. See TRCC 8-9. Dr. Carmichael saw the claimant on December 13 and 15. TR 80;
TRCC 8. On December 13, Dr. Carmichael obtained a written history of the March 13, 2008
incident from the claimant and administered the Clinician Administered PTSD Scale for DSMIV
(CAPS test). CX 11, at 2. On December 15, Dr. Carmichael conducted a 68 minute
structured clinical interview. Id. He also administered four other tests – the Beck Depression
Inventory II (BDI); the Personality Assessment Inventory (PAI); the Trauma Symptom Inventory
(TSI); and the Multiscale Dissociation Inventory (MDI) – during these sessions. Id. Based on
all of this data, Dr. Carmichael concluded that the claimant suffers from PTSD and major
depression. Id. at 5; TRCC 23. He believed that claimant should start treatment as soon as
possible, and “should not engage in any work where his level of attentional and other
psychological processes pose a threat to his own safety and that of others.” CX 11, at 5. But Dr.
Carmichael was never asked to treat the claimant. TRC 15-16; TRCC 5. Nor is there any
evidence that claimant has sought treatment under the Canadian health insurance system, which
would have been free. TRC 51-53. Based on Dr. Carmichael’s recommendation, claimant did
not seek to return to work as a truck driver. TR 53-54.
However, subsequent to the hearing, claimant did return to work as an over-the-road
truck driver. On April 23, 2009, claimant was interviewed by phone by a vocational expert,
James Sullivan, who was employed by his attorney to offer an opinion regarding claimant’s loss
of wage-earning capacity for this case. During that interview, Mr. Sullivan learned that claimant
had gone back to work on March 13, 2009, exactly a year after the incident in Iraq, and was
earning $800.00 a week. CX 15, at 2. It is now well over a year since claimant returned to work,
and since claimant has not indicated otherwise, there is no reason to believe he has stopped
Average Weekly Wage
Claimant’s average weekly wage must be determined, in accordance with §10 of the Act.
First, the claimant’s average weekly wage must be based solely on his earnings in his job in Iraq
respective addresses, it cannot be assumed that EX 24 refers to the doctor who treated claimant in Thailand.
Accordingly, EX 24 has no probative value.
despite its temporary nature and extremely high wage rate. See K.S. v. Service Employer’s Int’l,
Inc. 43 BRBS 18, aff’d en banc, ___ BRBS ___, BRB No. 08-0583 (2009). Second, although
claimant worked the entire year before the injury as a truck driver for employer in Iraq, his
average weekly wage cannot be determined under §10(a) of the Act. Under §10(a), in order to
calculate claimant’s average weekly wage it is first necessary to calculate claimant’s average
annual earnings. Section 10(a) states that a claimant’s “average annual earnings shall consist of
three hundred times the average daily wage or salary for a six-day worker and two hundred sixty
times the average daily wage or salary for a five-day worker . . . .” But claimant was a seven-day
worker, and §10(a) does not provide a formula to calculate the average daily wage of a sevenday
worker. Accordingly, §10(a) does not apply in this case.
Similarly, §10(b) does not apply. Not only does it only provide a means to calculate the
average daily wage of a five or six-day worker, it also only applies when the worker did not
work in same employment during substantially the whole of the year prior to the injury.
Claimant worked the entire year prior to the injury for employer.
That leaves §10(c), which applies when §§10(a) and (b) do not. Although both parties
contend that claimant’s average weekly wage should be calculated under §10(a), neither party’s
calculation of claimant’s average weekly wage follows the procedure set out in that section of
the Act. They both skipped the step of calculating an average daily wage and arriving at the
average annual earnings by applying a multiplier to that figure based on the numbers of days a
week claimant worked. In effect, both applied §10(c) even though they contend that §10(a)
Section 10(c) gives the judge great latitude in determining a claimant’s average annual
earnings. Employer contends that claimant’s average weekly wage should be based on the one
year’s earnings of $83,382.66 listed on EX 2. Divided by 52, this would produce an average
weekly wage of $1603.51. However, although EX 2 lists a year’s earnings, it is not exactly the
year prior to the injury. Rather, it starts with claimant’s earnings in April, 2007,5 not March 13,
2007, and includes earnings through March 29, 2008 instead of stopping at March 13.6 Claimant
contends that his average weekly wage is $1,701.69. He calculates this amount by figuring that
the $83,382.66 in earnings listed on EX 2 represents his earnings for only 49 weeks, since it
includes almost the full month of March, 2008, and he only worked 13 days that month. But
claimant fails to deduct the pay he received for the period subsequent to March 13, 2008 from
the $83,382.66 in earnings listed on that exhibit, which artificially elevates his average weekly
I find that claimant’s average weekly wage equals $1,633.50. Since claimant did work
for the employer the entire year before he was injured in Iraq, and the record contains substantial
records of claimant’s earnings during that year, it seems to me that the most reasonable approach
5 EX 2 lists pay by pay period, not the month. Further, each pay period generally covers most of the previous
month’s work plus a few days from the next previous month. For example, Pay Period 02/2008 actually covers the
claimant’s earnings from December 30, 2007 through January 26, 2008. Compare EX 2 with CX 6.
6 Although claimant last worked on March 13, 2008, there is no evidence he was removed from the payroll on that
date, and there is no reason to believe that he was. In fact, his claim form states that his pay stopped on March 28,
2008. CX 1.
to take is to follow §10(a) and find claimant’s average daily wage but multiply that amount by
366, since claimant worked the entire year before he was injured. Using the figures on EX 2, I
calculated that the claimant earned $77,747.28 from April, 2007 through February, 2008. The
year from March 14, 2007 to March 13, 2008 has 366 days.7 Since the record does not provide
claimant’s earnings specifically for March 14, 2007 through March 31, 2007, and March 1, 2008
through March 13, 2008, a total of 31 days, I subtracted 31 days and divided $77,747.28 by 335
to determine claimant’s average daily wage of $232.08. Multiplying that by 366 yields
claimant’s average yearly wage of $84,941.80. Dividing that sum by 52 yields an average
weekly wage of $1633.50.
Injury Arising Out of and in the Course of Employment
The overriding issue in this case is whether the claimant suffered a psychiatric injury as a
result of the incident at the checkpoint in Baghdad on March 13, 2008. Specifically, claimant
seeks compensation for PTSD and depression. A psychiatric injury is an injury under the Act.
Brannon v. Potomac Electric Power Co., 607 F. 2d 1378, 10 BRBS 1048 (D.C. Cir. 1979). In
order to prove that he suffered an injury within the scope of the Act, claimant must establish that
he suffers from one or both of these conditions and that working conditions existed at his job
which could have caused the injury. If claimant establishes an injury and an accident or suitable
working conditions, then he is entitled to a presumption under §20(a) of the Act that his injury
arises out of his employment. Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981). Claimant
need only present affirmative medical evidence that his employment could have caused the
injuries for which he claims compensation, not that his employment actually caused his injuries,
to invoke the §20(a) presumption. O’Kelly v. Dep’t of Army/NAF, 34 BRBS 39, 40 (2000).
If the §20(a) presumption is invoked, it may be rebutted with “substantial evidence that
claimant’s condition was not caused or aggravated by his employment.” O’Kelly, 34 BRBS at
41. Substantial evidence “is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1084 (D.C.
Cir. 1976). To rebut the presumption, Employer need not prove “another agency of causation.”
O’Kelly, 34 BRBS at 41. A physician’s credible testimony that “no relationship exists between
an injury and a claimant’s employment” suffices to rebut the presumption. Id. If Employer
successfully rebuts the §20(a) presumption, the presumption falls out of the case, and the ALJ
“must weigh all of the evidence and resolve the issue based on the record as a whole.” Id.
Claimant testified that prior to March 13, 2008, he had not suffered from either PTSD or
depression. TR 83. He had never suffered from sleeplessness, irritability or anger problems. TR
36. He had never been treated by a mental health professional, and had never taken
antidepressant medications. TR 54. He testified that the incident at the checkpoint made him
“very upset and very scared and very nervous”, and he was unable to complete his shift that
night. TR 29, 32. He felt stressed out and was suffering from indigestion. CX 10, at 126. Later
that night he could not fall asleep and he had a nightmare in which he relived the shooting. TR
32. These symptoms persisted when he arrived in Thailand, and by June or July he started
feeling depressed. TR 36, 71. By the time he left Thailand, after having undergone six months
of psychiatric treatment, Claimant’s nightmares and anger incidents had become less frequent.
7 2008 was a leap year.
TR 68, 70. At the hearing, Claimant testified that the frequency of his nightmares had decreased
even further, down to one or two every two weeks. TR 69. But he still gets very irritable and
angry for no reason about once a week. TR 69-70. In addition, he testified that he cannot
concentrate for long periods and is restless. TR 76.
The record contains evidence from two psychiatrists , Drs. Griffith and Churujiporn, and
a clinical psychologist, Dr. Carmichael. Drs. Griffith and Carmichael wrote lengthy reports and
provided extensive deposition testimony. Dr. Churujiporn provide two very short treatment
In regard to Dr. Griffith, to put it bluntly, he was a terrible witness. He was sarcastic,
arrogant, argumentative and flippant, and often refused to answer the questions put to him. On
his own, he assumed facts for which there was no support in the record, and then offered his
opinion based on these assumed facts. For example, he assumed that the Claimant was at fault in
the incident where his truck was shot at (e.g., TRG 142-48), that Claimant was worried that he
would have to pay $17,000 to repair the truck (e.g., TRG 35), and that Claimant was depressed
due to his three divorces (TRG 48-49, 312). He provided different answers to substantially
similar questions throughout his testimony. As an example, his testimony regarding whether
Claimant is malingering or exaggerating changed constantly, to the point that his opinion
regarding this question is incomprehensible. See, e.g., TRG 49-53, 309-10, 317. Further, he
believes that anyone in Claimant’s shoes would be trying to collect compensation rather than
work, since he believes “no one feels like working”. E.g., TRG 442.8 He also believes that if
the Claimant actually was suffering from PTSD, the carrier would not be opposing the claim.
TRG 161. Moreover, his medical judgment is clouded by his belief that PTSD is a highly
overused diagnosis. TRG 317.
The full flavor of Dr. Griffith’s testimony can only really be appreciated by reading the
entire 490-page transcript and viewing the videotape of his May 8, 2009 deposition; but reading
pages 29-35 of the transcript would be a good starting point. His bias against Claimants; his
irrationality; and his unwillingness to provide a straight answer to a question; are exhibited
throughout his testimony. Dr. Griffith’s opinion in this case is not credible and has no probative
In regard to Dr. Churujiporn, his notes contain little history and virtually no explanation,
and have extremely limited probative value.
That leaves the report and testimony of Dr. Carmichael. It is Dr. Carmichael’s opinion
that the Claimant is suffering from both PTSD and depression due to the incident in Iraq on
March 13, 2008. He bases this conclusion on the results of the CAPS, TSI and PAI, all of which
produced scores consistent with PTSD; his clinical observations; Claimant’s persistent reexperiencing
of the incident; and the absence of any earlier episodes of PTSD or symptoms of
depression, among other things. CX 11. He also concluded, based primarily on the PAI, TSI,
and Resnick criteria, that Claimant is not malingering or exaggerating his symptoms. CX 11, at
3; TRC 26-28, 88-92; TRCC 9. It also is Dr. Carmichael’s opinion that, since the PTSD and
8 This raises the question of why Dr. Griffith, who indicates he is well off financially, continues to work at the age of
78. EX 27, at 437.
depression result in sleeplessness, inattention, lack of concentration and suicidal ideations, it was
not safe for the Claimant to drive a truck, or even a car. TRC 45- 46, 67-69; TRCC 23-24.
Accordingly, he recommended that Claimant not return to work driving a truck. He added that,
in his experience, people with PTSD usually are occupationally disabled. TRC 94.
Dr. Carmichael believed that, with appropriate treatment, claimant should recover
sufficiently in three to six months to return to work. TRC 52-53. Dr. Carmichael agreed that
some people suffering from PTSD improve simply with the passage of time. TRC 84-85. But he
added that recovery is faster with treatment. TRC 84.
I give great weight to Dr. Carmichael’s opinion. It is clear and well-explained, and he
was subject to extensive cross-examination. Further, he specializes in treating people with
PTSD, adding to the probative value of his opinion. Dr. Carmichael’s testimony and report
clearly invoke the §20(a) presumption of an injury arising out of and in the course of
employment. Moreover, there is no credible evidence in the record to rebut that presumption.
Therefore, I find that Claimant sustained a work-related psychiatric injury on March 13, 2008.
Nature and Extent of Disability
Claimant testified that he was not fit to go to work in the days immediately following the
shooting incident. He was upset, scared and very nervous. TR 32. After arriving in Thailand,
he continued to have problems with insomnia, avoidance behavior, irritability and anger. TR 35-
36; CX 5. Claimant testified that Dr. Churujiporn believed he should not go back to work, so he
stayed in Thailand and did not look for a job. TR 39, 72.9 He did not seek employment from
the time he returned to Canada in September, 2008 through the date of the hearing, which was
January 7, 2009. TR 54. The record does not indicate when claimant started looking for work
subsequent to the hearing. Claimant’s vocational expert, Mr. Sullivan, states that claimant
returned to work despite Dr. Carmichael’s recommendation not to because he was in dire
financial circumstances. CX 15, Vocational Rebuttal Report at 1.
I find that the claimant was temporarily and totally disabled through March 12, 2009. It
was Dr. Carmichael’s opinion that claimant could not return to his previous job for employer in
Iraq at the time he examined him, since it would exacerbate his symptoms (EX 11, at 4); and no
evidence has been presented that anything has changed in the interim. Since claimant cannot
return to his previous employment, the burden shifts to employer to prove that claimant has a
wage-earning capacity and is not totally disabled. Claimant went back to work as a truck driver
on March 13, 2009, and apparently is still working in the same job more than a year later. He
does not contend that he has been totally disabled subsequent to his return to work on March 13,
2009. See Claimant’s Closing Argument Brief [“Claimant’s Brief”] at 31-32. Therefore, I find
that the Claimant was totally disabled from March 13, 2008 through March 12, 2009. Since
there is no evidence that claimant has reached maximum medical improvement, I find that his
impairment has not become permanent.
The next issue is claimant’s post-injury wage-earning capacity. The only evidence
regarding claimant’s post-injury earnings comes from claimant’s vocational expert, James
9 Dr. Churuliporn’s short notes do not discuss whether the claimant could return to work.
Sullivan. Sullivan reported that claimant informed him he was being paid $800.00 a week. CX
15, Vocational Rebuttal Report at 1. Claimant accepts this figure as his post-injury wage-earning
capacity. Claimant’s Brief at 31-32. Employer, assuming that claimant has established a workrelated
injury, cannot return to his job in Iraq, and cannot work as an over-the-road truck driver,
argues that claimant’s post-injury wage-earning capacity is “at least $781.25.” 10
Employer/Carrier’s Post Hearing Brief at 20. Employer bases this contention on the report of its
vocational expert, Wallace Stanfill. EX 19. Since claimant is earning $800.00 a week working
as an over-the road truck driver, I find that this is his post-injury wage earning capacity.
Claimant is entitled to compensation for the difference between his average weekly wage at the
time of the injury – $1633.50 – and his post-injury wage-earning capacity – $800.00. However,
under the case law, one additional calculation has to be made. Claimant’s 2009 wages must be
reduced to what they would have been at the time of the injury to provide a true loss of wageearning
capacity. The National Average Weekly Wage increased 3.47% between March 13,
2008 and March 13, 2009. Reducing $800.00 by 3.47% equals $772.24. Accordingly, I find
that claimant’s loss of wage-earning capacity is $861.26 ($1633.50 minus $772.24).
Therefore, claimant is entitled to compensation for temporary total disability from March
13, 2008 through March 12, 2009 based on an average weekly wage of $1633.50, and
compensation for temporary partial disability based on a loss of wage-earning capacity of
$861.26 a week from March 13, 2009 and continuing.
Since I have found that his psychiatric injuries are compensable, claimant is entitled to
medical benefits under §7 of the Act. Respondent has not provided claimant with any medical
benefits once he left Iraq. Claimant is entitled to reimbursement of his payments to Dr.
Churujiporn, who treated him for PTSD in Thailand. Of the 15 times he was treated by Dr.
Churujiporn, he was charged 700 Bhat the first three times and 1200 Bhat thereafter. CX 12.
The only evidence of how much this would have been in U.S. currency was Claimant’s
testimony that his visits with Dr. Churujiporn converted to U.S. currency cost about $28-30
dollars each. TR 81. It is Claimant’s burden to substantiate his medical expenses. Based on his
testimony, I split the difference and find that he was charged the equivalent of $29 for his last 12
visits. However, he was charged less for the first three visits, i.e., 7/12 of the charge of his last
12 visits. Doing the necessary math produces a sum of $16.92 for the first three visits.
Therefore, claimant is entitled to reimbursement for his 12 visits at 1200 Bhat – $348 – and three
visits at 700 Bhat – $50.76 – which totals $398.76.
However, I find that claimant is not entitled to reimbursement as a medical benefit under
§7 of Dr. Carmichael’s charge of $895.00 for his examination of the claimant on December 13
and 15, 2008. See CX 11, at 9. The purpose of this examination was to obtain evidence for trial,
not medical treatment. See id. at 1; TRC 15. In fact, it does not appear that claimant has sought
any treatment for his psychiatric injuries since he returned to Canada. Claimant also requests
that Dr. Carmichael be designated his free choice physician. Since employer has not offered to
provide any medical treatment to the claimant, and his initial choice of a physician, Dr.
10 Employer did not offer any evidence regarding claimant’s wage-earning capacity assuming he could work as an
over-the-road truck driver.
Churujiporn, is no longer available to him since claimant is living in Canada, claimant is free to
select another treating doctor, be it Dr. Carmichael or any other qualified psychiatrist or
therapist. Claimant also seeks reimbursement of expenses for medications and travel expenses
for medical treatment. But he submitted no bills for medications or for transportation for
Attorney’s fees and costs
Since the claimant was successful in this case, he is entitled to attorney’s fees and costs.
Claimant’s counsel may file his petition for fees and costs as soon as practicable. Employer shall
file its response to claimant’s counsel’s fee petition within 20 days of receipt.
IT IS ORDERED that Employer shall pay to the Claimant:
1. Compensation for temporary total disability from March 13, 2008 through March 12,
2009, based on an average weekly wage of $1633.50, and temporary partial disability at a rate of
$861.26 per week from March 13, 2009 and continuing.
2. Medical benefits in the amount of $398.76, and future medical benefits as provided by
§7 of the Act relating to post traumatic stress disorder and depression arising from the March 13,
2008 incident in Iraq.
3. Interest on all unpaid compensation from the date due until paid in accordance with 28
Administrative Law Judge