A formal hearing in this matter held in Newport News, Virginia on June 18, 2009 at which time all parties were afforded full opportunity to present evidence and argument as provided in the Longshore Act and the applicable regulations. The undersigned issued a Decision and Order denying benefits on October 28, 2009. The Claimant appealed that decision and in an order issued July 29, 2010, the Benefits Review Board (“the Board”) remanded the case. A Decision and Order on Remand was issued on May 3, 2011. The Claimant appealed that decision and the Board again remanded on April 19, 2012. In its remand, the Board found that Employer had failed to rebut the Section 20(a) presumption and thus determined that Claimant’s hypersomnolence is work-related as a matter of law.
In the record, a treating physician described how hypersomnolence can be sleep related:
On August 2, 2007, Dr. Ripoll explained the work note that he gave the Claimant in July:
I want to make it clear that you suffer from daytime hypersomnolence and that this problem is secondary to a sleep-related impairment. You suffer from two different sleep-related diseases. The first one is obstructive sleep apnea, which is corrected with positive airway pressure, the second one is shift work sleep disorder and the only way to correct that problem is to stop doing shift work. It is important that you change the hours that you work or you change occupation to work steady shifts, either days only or nights only, preferably days only. Shift work sleep disorder is a medical condition and daytime hypersomnolence is a serious problem, which could cause a security problem for you and others around you.
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