samedi 16 février 2019

Choice/Change of Physician

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An employer was not required to consent to a change of physicians where claimant, who sustained a pulmonary injury and initially chose to see a physician who was not a pulmonary specialist, later decided to undergo treatment from a pulmonary specialist, because the initial physician sent claimant to other specialists skilled in treating pulmonary injuries, and thus the initial physician provided the care of a specialist whose services are necessary for the proper care and treatment of the compensable injury pursuant to Section 7(b) and 20 C.F.R. §702.406(a). Senegal v. Strachan Shipping Co., 21 BRBS 8 (1988). Section 7(b) and its accompanying regulation, 20 C.F.R. §702.407, address the authority of the Secretary and the deputy commissioners to oversee an injured employee's medical care. The provisions, do not, however, address the issue of payment or reimbursement, which is governed by Section 7(d). Thus, where employer refuses to authorize a change in physician, claimant is entitled to reimbursement under Section 7(d) if the treatment subsequently procured on his own initiative is found to be necessary. Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989). The Board vacated an administrative law judge’s order for employer to pay “all reasonable and necessary medical expenses incurred to date and…such reasonable and necessary medical care and treatment, specifically, Dr. Roger Davis' pain clinic…as the claimant's work-related injury…may require.” While the administrative law judge has the authority to order payment for already incurred medical expenses and to generally order future medical treatment for a work-related injury, the administrative law judge erred in directing ongoing future treatment at the specified pain clinic. If authorization for such care is properly requested and the care is necessary and reasonable, employer may be liable for claimant's expenses at this clinic. However, ongoing treatment must be supervised by the district director as provided in the regulations. The Board held that the administrative law judge’s actions violated Section 7(b) of the Act and Sections 702.406 and 702.407 of the regulations, which authorize the Secretary and his designee, the deputy commissioner (district director), to oversee the provision of health care. McCurley v. Kiewest Co., 22 BRBS 115 (1989). The Board held that where the employer authorized treatment for claimant’s initial physician, who subsequently retired and turned his practice over to another physician, claimant need not seek authorization for treatment with the new physician. Moreover, there is no authority for requiring separate authorization for each medical treatment. Maguire v. Todd Pacific Shipyards Corp., 25 BRBS 299 (1992). The Board held that where claimant’s treating physician became unavailable due to his leaving private practice, claimant was not required to obtain approval from employer or the district director before treating with a new physician of his choosing. Good cause for


the change is established under these facts, pursuant to 20 C.F.R. §702.406(a). Lynch v. Newport News Shipbuilding & Dry Dock Co., 39 BRBS 29 (2005). The Board affirmed the administrative law judge's finding that claimant did not need to seek authorization for a change in physician where the initial physician referred claimant to the appropriate specialist. Armfield v. Shell Offshore, Inc., 25 BRBS 303 (1992) (R. Smith, J., dissenting on other grounds). The Board rejected claimant's contention that she was not permitted to select her own physician because the nature of her injury required that employer immediately select one for her. Section 7(b) and 20 C.F.R. §702.405, permitting employer to select a physician, contemplate severe injuries such as unconsciousness or other incapacity preventing claimant from making a selection. In this case claimant was not so incapacitated; employer suggested a doctor when claimant's initial choice was unavailable and claimant treated with this doctor for two years. Thus, he was her initial free choice. Moreover, employer was not required to consent to a change in physician as employer did not refuse to authorize continuing treatment from this doctor. Hunt v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 364 (1994), aff'd mem., 61 F.3d 900 (4th Cir. 1995). The Board rejected the Director’s contention that only the district directors, by delegation of the Secretary, have the authority to determine the appropriateness of medical care, in this case consisting of housekeeping assistance, under their authority to supervise medical care in Section 7(b) and 20 C.F.R. §702.412(b). The Board held that a claim for medical benefits that raises disputed factual issues such as the need for specific care or treatment for a work-related injury must be referred to an administrative law judge for resolution of the disputed factual issues in accordance with Section 19(d) of the Act and the APA. This interpretation is supported by the regulations at 20 C.F.R. §§702.315, 702.316. The Board distinguished its holding in Toyer, 28 BRBS 347, as that case involved solely a discretionary determination under Section 7(d)(2). Sanders v. Marine Terminals Corp., 31 BRBS 19 (1997)(Brown, J., concurring). The Board held that pursuant to Section 7(b) and Sections 702.406(b) and 702.407(b), (c), only the district director, and not the administrative law judge, has the authority to change claimant’s treating physician at the request of employer, if the district director determines that such change is necessary or desirable in the interest of the employee. The Board held that the language of the statute is discretionary, as in Toyer, 28 BRBS 347, and therefore there is no role for the administrative law judge to play in this determination. The Board distinguished Sanders, 31 BRBS 19. In this case, however, the district director failed to sufficiently explain his reasons for granting employer’s request and changing claimant’s physician; therefore, the Board vacated the decision and remanded the case to the district director for further consideration. Jackson v. Universal Maritime Service Corp., 31 BRBS 103 (1997) (Brown, J., concurring). Section 7 32 While active supervision of a claimant’s medical care is performed by


While active supervision of a claimant’s medical care is performed by the Secretary of Labor and her delegates, the district directors, the Board reiterated that there are some medical issues which remain in the domain of the administrative law judge: specifically, those issues which involve factual disputes as opposed to those which are purely discretionary. In this case, the parties disputed claimant’s entitlement to hearing aids for his non-ratable work-related hearing loss; however, the administrative law judge did not address the issue but instead remanded the case for the district director to do so. The Board vacated the administrative law judge’s order of remand, and remanded the case to the administrative law judge for resolution of whether hearing aids are necessary and reasonable treatment for claimant’s hearing loss, as such are factual issues for the administrative law judge. Weikert v. Universal Maritime Service Corp., 36 BRBS 38 (2002). The Board held that while claimant had good cause to choose a new treating physician, and thus employer’s consent was not required, the district director had the authority to address employer’s objection to claimant’s choice of physician on the ground that he was not a specialist in treating spinal injuries. Inasmuch as the claims examiner’s conclusion that claimant’s chosen physician is not a spine specialist raised a disputed question of fact, the administrative law judge had the authority to make findings on this issue. The administrative law judge’s decision, however, must be based on the evidence of record. The administrative law judge purported to rely on the “testimony” of claimant’s counsel at the hearing to find that claimant’s chosen physician treats spinal injuries. Claimant’s counsel was a not a witness, and his statements at the hearing or in briefs are not part of the evidentiary record. The Board therefore vacated the administrative law judge’s finding that claimant’s chosen physician was an appropriate spine specialist as it was not supported by substantial evidence. As claimant had ample opportunity to put in evidence on this issue, the Board declined to remand the case to the administrative law judge to allow claimant an additional opportunity but remanded it to the district director to issue an order addressing and resolving the parties’ contentions regarding claimant’s chosen physician consistent with the Act and regulations governing medical issues. Lynch v. Newport News Shipbuilding & Dry Dock Co., 39 BRBS 29 (2005). The Board held that claimants do not have a statutory right to select their own pharmacy or provider of prescriptions, as pharmacies are not included in the definition of “physician” contained in 20 C.F.R. §702.404, and thus are not encompassed within Section 7(b)’s right to choose a physician. Pursuant to 20 C.F.R. §702.407(b), the district director, and not the administrative law judge, has the authority to address the choice of pharmacy issue raised by the parties, as the district director supervises the medical care of injured employees. The parties did not raise any factual issues requiring adjudication by an administrative law judge. Potter, et al. v. Electric Boat Corp., 41 BRBS 69 (2007). In this hearing loss case, claimant was examined by an audiologist of his choice, as well as an audiologist selected by employer. Both recommended hearing aids. In agreeing to pay for claimant’s hearing aids,
employer authorized claimant to get his hearing aids from a third audiologist, one nearer to his home. The Board rejected claimant’s assertions that he has a statutory or regulatory right to his choice of audiologist and the case should be remanded for the administrative law judge to address whether claimant’s choice is reasonable. Rather, relying on Potter v. Electric Boat Corp., 41 BRBS 69 (2007), the Board held that audiologists are not among those defined as “physicians” under 20 C.F.R. §702.404, and, as the selection of an audiologist who will dispense hearing aids falls within the “character and sufficiency” of medical care, the issue concerning the selection of an audiologist is delegated to the district director. Accordingly, the Board remanded the case to the district director to address the details of claimant’s audiological care. Jones v. Huntington Ingalls, Inc., 51 BRBS 29 (2017).

The Board held that where a claimant sustains a second work-related injury, she is entitled to a new choice of attending physician pursuant to Section 7(b) for reasonable and necessary treatment resulting from the new injury; the selection of a new attending physician for the new injury does not constitute a request for a change in physician pursuant to Section 7(c)(2). L.W. [Washington] v. Northrop Grumman Ship Systems, 43 BRBS 27 (2009).
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