### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 12-20228

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA; SERVICE EMPLOYEES INTERNATIONAL, INCORPORATED, Plaintiffs-Appellants
v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; GLEN VICKERS, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas

4:09-CV-01998

Before KING, SOUTHWICK, and GRAVES, Circuit Judges. PER CURIAM: * Plaintiffs-Appellants appeal from the district court’s judgment affirming

a decision of the Benefits Review Board that affirmed an Admini s tr ativ e Law Judge’s decision awarding temporary t o tal disability and medical benefits to Defendant-Appellant Glen Vickers. For the reasons that follow, we reverse the Board’s decision, vacate the award for Vickers’s polyneuropathy, and remand to U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 15 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion s houldnot * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 12-20228 Document: 00512144826 Page: 1 Date Filed: 02/15/2013No. 12-20228

the ALJ for a determination of whe ther Vickers’s polyneuropathy naturally or unavoidably resulted from the work-related arm injury cited in his claim.

I. FACTS AND PROCEDURAL HISTORY Defendant-Appellee Glen Vickers is a former employee of Pl ai ntiffAppellant Service Employees International, Inc. (“SEI”). While Vickers was working for SEI in Iraq as a logistics coordinator, his left ar m w a s severely injured in a tank fuel adapter explosion on August 14, 2004. Eleven days later, Vickers traveled t o T e x a s and had surgery on his left arm performed by Dr. Roger Sessions, an ortho pedic surgeon. Vickers was released to full duty in December 2004, and he returned to I r a q that January. In April or May 2005, Vickers developed a gastrointestinal illness that lasted four o r f iv e d ays. He returned to Texas in August 2005 and saw Dr. Ro ge r Sessions for another operation on his arm—a carpal tunnel syndrome release. Around November and December 2005, Vickers began to experience numbness, stinging, tingling, and pain in areas other than his left arm: mainly his right arm and shoulder, both of his legs, and his neck. On the basis of an EMG, Vickers was referred to Dr. Joseph Vau gh a n , a neurophysiologist, who di a gn o s ed him with an autoimmune disorder known as chronic inflammatory demyelinating polyneuropathy (“CIDP”). 1 On December 21, 2006, Vickers filed a claim for compensation seeking permanent total disability benefits from SEI and its insurance carrier, PlaintiffAp p e llant Insurance Company of the State of Pennsylvania (collectively

Als o call ed “chroni c infl amm atory dem yelinating polyradiculo neuro pathy,”CID P is 1
a rar e, acquired , im mun e-m edi ated infl amm atory dis ord er of the periphe ral nervou s sys tem

. The dis eas e is believed to be caus ed by im mun e cell s—which norm ally prote ct the body fr om for eign infe cti on—att acking the body’s nerves . Af f e c t e d nerves fail to res pond to stim uli, c a u s i ng pain , progres sive mus cle we ak nes s, tingli ng, and numbnes s. See Al l Abo ut CIDP, GBS/CID P Found atio n Internatio nal, htt p: //ww w. gbs- cidp. org/hom e/c idp/cidp ; Chroni c Inflam ma tory De my el ina ti ng Poly neuropa thy (CIDP) Infor ma tion Page , Nat ’l Inst

. of Neur ologic al Di so rd ers&S tro ke , htt p: //ww w. nind s. nih. gov/diso rd ers/c idp/c idp .ht m. 2 Case: 12-20228 Document: 00512144826 Page: 2 Date Filed: 02/15/2013No. 12-20228

“Plaintiffs”), under the Longshore and Harbor Wo rk e rs’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq. , as amended and extended by the Defense Base Act (“DBA”), 42 U.S.C. § 1651, et seq. Specifically, Vickers’s claim sought compensation f

or Vickers’s arm injury and for injuries to “other parts of [his] body , [ a n d] other related problems associated with [his] injury and working conditions in Iraq.” The Administrative Law Judge (“ALJ”) awarded Vickers temporary total disability benefits for the injury to his arm and for his CIDP. The ALJ invoked the 33 U.S.C. § 920(a) presump ti o n (the “Section 20(a) presumption”) that Vickers’s CIDP was work-related based on Dr. Vaughan’s testimony that Vickers’s gastritis, in c o nj u nction with the surgeries for his work-related arm injury, could have precipitated his CIDP. The ALJ found that the opinion of one Dr. Maudlin—who reviewed Vicke r s’s conditions based upon documents that Plaintiffs provided—was sufficient to rebut the presumption that the arm injury caused Vickers’s polyneuropathy. H owever, the ALJ also found that Dr. Maudlin di d not address the effect of Vickers’s gastritis or his surgeries on th e development of his CIDP, and thus, that the Section 20(a) presumption linking this condition to his employment was not rebutted. Plaintiffs appealed to the Benefits Review Board (“B R B”), and sought reversal on the grounds that the ALJ erred in finding the evidence sufficient to invoke the Section 20(a) presum p ti o n a s to Vickers’s CIDP and in finding the evidence insufficient to establish rebuttal of the presumption. The BRB affirmed the ALJ’s decision. Plaintiffs then filed a motion for r e c o nsideration, arguing that our decision in Amerada Hess Corp. v. Dir., OWCP, 543 F.3d 755 (5th Cir. 2008), which was decided after the BRB’s decision , m a n d ated reversal of the ALJ’s decision. The BRB found Amerada H es s distinguishable from this case because the claim Vickers filed included the “sequ e l a e of the arm injury.” In summary, the BRB’s a n aly s i s consisted of the following steps: first, the BRB
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made the legal de t e r mination that employers are liable for sequelae resulting from the original injury alleged in the claim filed; second, it found that Vickers made a claim for se qu e lae, including his CIDP, by claiming injuries to “other parts of [his] body, [and] other related problems associated with [his] injury and

w o rking conditions in Iraq”; and third, it determined that the ALJ properly

a p p lied the presumption to conditions “that were part of the claim filed, ” including Vickers’s CIDP, in light of Dr. Vaughan’s testimony that Vickers’s “disabling CIDP could have been precipitated by his initial ar m inj ury or the subsequent surgeries therefore.” Thus, it denied the motion for rehearing. Plaintiffs timely filed a notice of appeal in the district court, challenging the benefits granted to Vickers for his CIDP, and asking it to reverse the BRB’s decision as to this alleged claim. On February 29, 2012, the district court denied Plaintiffs’ request for reversal and affirmed the BRB’s decision. Plaintiffs timely appealed to this court raising four issues concerning the benefits awarded to Vickers for his CIDP. First, Plaintiffs contend that the ALJ erred by not applying the Amerada Hess s t a n dard and correspondingly, by

a pplying the Section 20(a) presumption to Vickers’s CIDP, which, Plaintif f s claim, is a secondary condition to which the presumption does not apply. Second, Plaintiffs ar gu e th at the inclusion of a catch-all clause in Vickers’s claim for compensation did not convert potential allegati o ns of illness or secondary conditions (such as his CIDP) into primary claims subject to the Section 20(a) presumption. Third, Plaintiffs argue that the ALJ erred in finding that Vickers established a prima facie case thro ugh Dr. Vaughan’s testimony, because Dr. Vaughan did not pinpoint the cause of Vickers’s gastritis and polyneuropathy. Finally, Plaintiffs argue that the ALJ erred in f i n din g that they did not offer substantial evi d e nce to rebut Vickers’s prima facie case, even though, they maintain, the record contains expert testimony that Vickers’s CIDP was not related to his working conditions in Iraq.

4 Case: 12-20228 Document: 00512144826 Page: 4 Date Filed: 02/15/2013No. 12-20228 II. STANDARD OF REVIEW I n an appeal of a claim under the LHWCA as extended by the DBA, we review the decisions of the BRB to determine whether it adhered to the proper scope of review: namely, “whether the ALJ’s findings of fact are supported by substantial evidence and are consistent with th e law.” Gulf Best Elec., Inc. v. Methe , 396 F.3d 601, 603 ( 5 th C ir. 2004). Under the LHWCA, the BRB must uphold the factual findings of the ALJ if they are rational a nd supported by substantial evidence in the record taken as a whole. 33 U.S.C. § 921(b)(3); Gulf Best , 396 F.3d at 603. Substa nti al evidence is “that relevant evidence—more than a scintilla but less than a preponderance—that would cause a reasonable
person to accept the fact finding.” Coastal Prod. Servs., Inc. v. Hudson , 555 F.3d 426, 430 (5th Cir. 2009). As the factfinder, the ALJ is exclusive ly e ntitled to

assess the weight of the evidence and credibility of witnesses. Ceres Gulf, Inc. v. Dir., OWCP, 683 F.3d 225, 228 (5th Cir. 2012) (citations omitted); see Mendoza

v. Marine Pers. Co

. , 4 6 F.3d 498, 500-01 (5th Cir. 1995) (citing Mijangos v. Avondale Shipyards , 948 F.2d 941, 945 (5th C ir. 1991) (holding that the BRB may not reweigh evidence or make its own credibility de t e r m i n ations)). We review the BRB’s legal conclusions de novo. Tarver v. Bo–Mac Contractors, Inc. , 384 F.3d 180, 1 8 1 ( 5 th Cir. 2004). Moreover, we accord no deference to the district court’s conclusion as to whether the record supports the administrative determination. H.B. Zachry Co. v. Quinones , 206 F.3d 474, 477 (5th Cir. 2000). III. DISCUSSION Plaintiffs contend that the BRB erred in affirming the ALJ ’ s decision as to Vickers’s CIDP bec au s e the ALJ’s findings with respect to this illness were unsupported by substantial evidence and inconsistent with th e law. Plaintiffs raise four issues concerning Vickers’s CIDP: (1) whether the ALJ’s application of the Se c tion 20(a) presumption to Vickers’s CIDP was proper; (2) whether CIDP was properly included in Vickers’s cl aim for compensation; (3) whether
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Vickers made a prima facie case that his CIDP was a work-related injury; and (4) whe th e r Plaintiffs presented substantial evidence in rebuttal of the presumption. We address the first and second issues together, and do the same for the third and fourth. A. Section 20(a) Presumption 1. Relevant LHWCA Provisions The LHWCA provides that “compensation shall be payable under this chapter in respect of disability

. . . of an employee, but only if the disability . .

. results from an injury occurring” at a covered situs 33 U.S.C. § 90 3 (a). “Disability” is defined, in relevant part, as an “incapacity because of injury.” 33 U.S.C. § 902(10). And “injury” is defined as an “accidental injury or death arising

o ut o f and in the course of employment, and such occupational disease or infection as arises naturally o ut o f such employment or as naturally or
unavo i d ab ly r e sults from such accidental injury

. . . .” 33 U.S.C. § 902(2). The Supreme Court has determined that the phr a s e s “ arising out of” and “in the

course of” are separate requirements for establishi n g a n injury: “the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury.” Se e U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615, (1982) (hereinafter U.S. Industries). “Not only m u st the injury have been caused by the employment, it also must have arisen during the employment.” Id. To make a c l aim for compensation under the LHWCA, an injured employee “must timely file a claim with the Deputy Commissioner” that gives notice of the injury and contains “a statement of the time, plac e , n atur e , and cause of the injury.” Id. (quoting 33 U.S.C. § 912(b)). The LHWCA also specifies the order of p roof in compensation cases. Section 20( a) of the Act provides: “[in] any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence

o f s ub stantial evidence to the contrary

. . . [t]hat the claim comes within the
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provisions of thi s ch a pter.” 33 U.S.C. § 920(a). To invoke the presumption, a claimant must offe r a prima facie case that he (1) suffered a “harm,” and (2) a workplace condition “could have caused, aggravated, or accelerated” the harm. Conoco, Inc

. , v . D i r ., OWCP, 194 F.3d 684, 687 (5th Cir. 1999). I f the claimant

e s tablishes a prima facie case, “the burden shifts to the employer to reb ut it through facts—not mere speculation—that the harm was not work-related.” Id. at 687-88. If the employer rebuts the presumption, it drops out of the case, and the ALJ must weigh the totality of the evidence to determine whether the injury

arose out of the claimant’s employment. Del Vecchio v. Bowers , 296 U

. S. 280, 2 8 6 -87 (1935); U.S. Indus. , 455 U.S. at 612 n.6 (noting that it seems f air t o
assume that the Section 20(a) presumption is of the same nature as the presumption created under Section 20(d) of the LHWCA, as construed in Del Vecchio); Amerada Hess , 543 F.3d at 761. Throughout this b ur d e n -shifting process, the claimant retains the burden of persuasion. 2. Amerada Hess The ALJ applied th e S ection 20(a) presumption to Vickers’s CIDP. In affirming the ALJ’s deci s io n, the BRB also found the presumption applicable. Plaintiffs argue that the BRB erred in affirming th e ALJ ’ s d ecision because Vick e r s ’ s CIDP was not included in his claim, and at most was a secondary injury to which the Section 20(a) presumpti on does not apply under the reasoning in Amerada Hess

. 543 F.3d at 761-62. In Amerada Hess , the claimant sought benefits for a heart condition that allegedly resulted from treatment—steroid use a nd surgery—for work-related back and groin injuries. Id. at 758-59. The ALJ invoked the Section 20(a) presumption, found th at th e employer did not rebut the presumption, and awarded compensation and medical bene f it s related to claimant’s heart condition. Id. at 759. The BRB affirmed, holding that if th e c l ai m a nt’s heart

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problems arose as a consequenc e o f th e steroid injections he received as treatment for his work injury, then his heart problems were work-related. Id. We reverse d the BRB’s decision in that case for reasons that mirror the issues Plaintiffs now raise on ap p e al. First, we found that the ALJ and BRB

e rred in applying the Section 20(a) presumption to claimant’s alleged heart condition because it was not part of his original claim, which was for his back and groin injury. Id. at 761 (noting that th e p r esumption applies to the claim) (citing U.S. Indus. , 455 U.S. at 613). Second, we decided that the Section 20(a)
p r e sumption did not apply to claimant’s heart condition because it was a secondary injury to which the presumption did not apply: In sum, we hold that the statute does not support a p r e s u m p ti on that any medical condition that an injured claimant suffers after a work

- r e l ated injury is caused by the work-related injury. Furthermore, not all “secondary” injuries are c ov e r ed under the LHWCA simp ly because the claimant demonstrates a subsequent harm that could have stemmed from the covered injury. Instead, to receive b e n e fits under the LHWCA for a subsequent injury, the claimant must present substantial evidence that the secondary condition “naturally or unavoidably” resulted from the first covered injury, as is required by the statute. Id. at 763 (citation omitted). As discussed, Plaintiffs argue that Vickers did not refer to his CIDP in his claim, and that his CIDP is at most a secondary injury subject to the “naturally or unavoidably” causation standard we articulated in Amerada Hess . Since these issues are related, we address them together. 3. Analysis Vickers’s claim requested compensation for his arm injury of August 14, 2004, and for “other related problems associated with [this] injury and working conditions in Iraq.” Plaintiffs argue that this catch-all c l au s e did not convert potential all e gations of illness or secondary conditions (such as his CIDP) into primary claims subject to the Section 20(a) presumption. We agree.

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The Supreme Court has stated clearly that the Section 20(a) presumption applies to the claim. U.S. Indus. , 455 U.S. at 612-13. In addition, the Court has stated that “[a] pri m a facie ‘claim for compensation,’ to which the statutory presumption refers, must at least all e ge a n i njury that arose in the course of employment as well as out of e mployment.” Id. at 615. In other words, “the
pre s u m p ti o n cannot apply to a claim that has never been made.” Id. at 614. Rather, the clai m must contain “a statement of the time, place, nature, and

c au s e o f th e injury.” Id at 613. A general reference to a nonspecific injury or illness will not suffice: This statement must be more than a mere declaration that the employee has received an injury or is suffering from an illness that is related to his employment; it must contain enough details about the nature and extent of the injury or disease to allow the employer to conduct a prompt and complete investigation of the claim so that no prejudice will ensue. Id. at 613 n.6 (internal quotations and citation omitted). Alth o u gh th e Act’s pleading requirements have some flexibility, “there is a point beyond which the sweeping-aside of ‘technicalities’ cannot go.” Id. at 613 n.7

. An d in this case, Vickers’s claim went beyond that threshold. Vickers’s claim for “other

. . . p roblems associated with [his arm] injury and working conditions in Iraq” is exactly the sort of vague declaration that the Supreme Court in U.S. Industries deemed insufficient to constitute a “claim” to which the Secti o n 20(a) presumption applies. Although Defendants maintain that this case is distinguishable from U.S. Industries in that the claimant in that

case filed a claim for a specific injury, and did not leave open the possibility that the claim coul d include other, related injuries, this reasoning is unpersuasive. The conclusion that the vague allegation s in that claim should not receive the statutory presumption was not contingent on the claimant’s failure to allege a catch-all category of injury. Inde e d , trying to differentiate these cases on this

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basis requires circular reasoning (i.e., the catch-all statement in Vickers’s claim is unproblematic because the claim in U.S. Industries did not involve a catch-all

s tatement). U.S. Industries is apposite, and pursuant to the Court’s reasonin g therein, Vickers did not assert a primary claim for gastroint e s ti n al symptoms or CIDP to which the Section 20(a) presumption applies. Because the Section 20(a) presumption does not apply to Vickers’s CIDP, the BRB and ALJ erred in applying it to that illn e s s. Since Vickers’s CIDP allegedly resulted from an autoimmune response owing to some combination of the gastritis he contracted in Iraq and the surgeries for his arm, th e y s h o ul d have applied the more stringent “naturally or unavoidably” causation standard used to a s s e s s whether secondary conditions are eligible for benefits. See Amerada Hess , 543 F.3d at 763. In Amerada Hess , we echoed the determination in U.S. Industries that the Section 20(a) presumption applies only to injuries specifically referenced in the claim. Id. at 761-62. Moreover Amerada Hess held that where the alleged injury does not arise “out o f a n d in the course of” employment, it is a secon d ary injury subject to the “naturally or unavoidably” standard. Id. at 763. As we explained in Amerada Hess , the LHWCA “does not support a presumption that a ny medical condition that an injured claimant suffers after a work-related injury is caused by the work-rel ated injury,” and “not all ‘secondary’ injuries are covered under the LHWCA simply because the claimant demonstrates a subsequent harm that could have stemmed from the

cover e d injury.” Id. Rather, “to receive benefits under the LHWCA for a subsequent injury, the claimant must present s ub stantial evidence that the secondary conditi o n ‘naturally or unavoidably’ resulted from the first covered injury, as is required by the statute.” Id. Just as the claimant in Amerada Hess failed to reference a work-related injury i n hi s c laim, Vickers’s description of “other related problems” was insufficient to trigge r the Section 20(a) presumption. And just as in Amerada
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H ess , where the claimant’s heart problem was deemed “secondary,” Vick e r s ’ s C I D P i s properly understood as a secondary injury because it allegedly arose from an autoimmune response to the surgeries related to his work-related arm injury refer e nc ed in the claim and the gastritis he allegedly contracted due to working conditions in Iraq. Accordingly, we hold that Vickers’s CIDP is subject to the causation s t andard for secondary injuries. Id. at 761-62. In order to

recover for his CIDP, Vickers must “present substantial evidence” that it “‘naturally or unavoidably’ resulted from the first covered injury”—namely, his

arm injury. Id. at 763. Whether his CIDP “naturally or unavoidably” r e s ulted from his work-related arm injury is a question for the ALJ to decide on remand. B. Prima Facie Case and Rebuttal Because the preceding analysi s forms the basis for our judgment, we do not need to address the final two issues that Plaintiffs have raised: that the ALJ erred in finding that Vickers established a prima facie case through Dr. Vaughan’s testimony, and that the ALJ erred in finding that Plaintiffs did not present substantial evidence in rebuttal concerning Vickers’s prima facie case. These issues involv e the application of the Section 20(a) presumption, which does not apply to Vickers’s CIDP for the reasons discussed. IV. CONCLUSION For the reasons provided, we REVERSE the BRB’s decision and order, VACATE the ALJ’s award of t e m p orary total disability benefits for Vickers’s CIDP, and REMAND to the ALJ for a d e t e r m i n ation of whether his CIDP naturally or unavoidably resulted from his work-related arm injury.

11 Case: 12-20228 Document: 00512144826 Page: 11 Date Filed: 02/15/2013JAMES E. GRAVES, JR., Circuit Judge, concurring.

I agree with the majority that Amerada Hess mandate s reversal. Nevertheless, I believe the Amerada Hess majority erred in fi n ding that the presumption created by § 20(a) of the LHWCA is inapplicable to a “secondary” injury or an injury not exp ressly listed on the original claim form. In that connection, I find Judge Reavley’s concurrence persuasive. See Amerada Hess Corp. v. Dir., OWCP, 543 F.3d 755, 764-66 (5th Cir. 2008) (Reavl e y, J., concurring) (no ti n g that, for purposes of the § 20(a) presumption, because worker’s injury listed on original claim form arose out of his employment, “any injury resulting from treatment for that injury should also be presumed to have arisen out of the employment and the primary injury.”). Case: 12-20228 Document: 00512144826 Page: 12 Date Filed: 02/15/2013