samedi 16 février 2019

Necessary Treatment and Reasonable Expenses/Distance

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The Board remanded the case for the administrative law judge to address the proximity of a physician's office to claimant's residence in determining whether claimant was entitled to the services of Dr. LaRocca, a Board-certified orthopedic surgeon to whom claimant was referred by her treating physician, as Dr. LaRocca's practice is some 313 miles distant from claimant's home, employer offered the services of a nearby specialist and Section 702.403 provides that 25 miles is generally a reasonable travel distance for medical care. Welch v. Pennzoil Co., 23 BRBS 395 (1990). The Board affirmed the denial of medical benefits where the administrative law judge rationally found that the doctor's treatment was duplicative of the treatment claimant was receiving from other doctors and therefore was unnecessary. Hunt v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 364 (1994), aff'd mem., 61 F.3d 900 (4th Cir. 1995). The Board affirmed the administrative law judge’s conclusion that treatment allegedly administered by Dr. Vogel was unreasonable and unnecessary as substantial evidence supported the findings that claimant saw Dr. Vogel with regard to an unrelated state court claim, the record contained no treatment records by Dr. Vogel or any indication that claimant went to Dr. Vogel for continued treatment of his work-related condition, and claimant was referred to Dr. Vogel by his attorney and not by any treating physician. The administrative law judge, moreover, rationally concluded that it was not reasonable for claimant to seek treatment with Dr. Vogel because of the considerable distance between claimant’s residence in Houma, Louisiana, and Dr. Vogel’s office, located in New Orleans, especially since other equally qualified physicians who were chosen by claimant, were in the Houma area. Ezell v. Direct Labor, Inc., 37 BRBS 11 (2003). Claimant is not afforded the benefit of a presumption of reasonableness of treatment under Section 7 by virtue of Section 20(a) of the Act. Although neither Section 7 of the Act nor the regulations explicitly assigns the burden of proof, claimant is not relieved of the burden of proving the elements of her claim for medical benefits. In determining the reasonableness of the costs of treatment claimant, a resident of Austin, Texas, procured at a pain center in Boston, the administrative law judge did not err by comparing the costs of the Boston treatment to that of similar treatment available in Houston, Texas. Although 20 C.F.R. §702.413 requires that a provider's fees are limited to prevailing community charges for similar care in the community in which the medical care is located, that regulation acts as a ceiling for compensable fees and does not preclude the administrative law judge from awarding a lesser amount where comparable less expensive treatment was available to claimant locally. While the proximity of the medical care to claimant's residence is a factor to be considered in determining the reasonableness of medical treatment, where competent care is available locally, claimant's medical expenses may reasonably be limited to those costs which would have


y reasonably be limited to those costs which would have Section 7 19 been incurred had the treatment been provided locally. In the instant case, the administrative law judge compared treatment available at a local pain center in Houston with the treatment procured by claimant in Boston, and, after considering the treatment available, the professional accreditations and success rates, and the experience of each clinic's director, rationally determined that adequate comparable treatment was available locally at a lesser cost. Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996). The Board affirmed the administrative law judge’s finding that employer is not liable for the treatment provided by Dr. Raffai, as the administrative law judge rationally found that claimant’s work-related back condition had resolved prior to the treatment, and it was within the administrative law judge’s discretion to find that Dr. Raffai’s treatment was not necessary for claimant’s work-related back condition. Arnold v. Nabors Offshore Drilling, Inc., 35 BRBS 9 (2001), aff’d mem., 32 Fed. Appx. 126 (5th Cir. 2002). The Ninth Circuit held that, although the employer is not required to pay for unreasonable and inappropriate treatment, when the patient is faced with two or more valid medical alternatives, it is the patient, in consultation with his own doctor, who has the right to choose his own course of treatment. The administrative law judge may not find that the course chosen by claimant is unreasonable or unwarranted if no doctor states that the treatment is unnecessary or unreasonable. In this case, the administrative law judge credited employer’s examining physician over claimant’s treating physician. The court vacated the administrative law judge’s finding that proposed surgery is not necessary, based on the examining physician’s testimony, as the treating physician’s opinion is entitled to greater weight, and as employer’s physician acknowledged that surgery was a judgment call. Amos v. Director, OWCP, 153 F.3d 1051 (1998), amended, 164 F.3d 480, 32 BRBS 144(CRT) (9th Cir. 1999), cert. denied, 528 U.S. 809 (1999). The Board affirmed the administrative law judge’s finding that when presented with two valid options for treatment, the decision should be left with the claimant to choose between them, and employer is liable for the option she chooses. Claimant’s doctor recommended surgery, employer’s doctor stated surgery was not necessary and would be malpractice, and an independent examiner did not recommend surgery but said many doctors would find surgery a viable option for claimant’s condition. The administrative law judge noted the credentials of the physicians and rationally found that employer is liable for claimant’s choice of treatment. Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005). The administrative law judge has the authority to determine the necessity of medical care based on the evidence of record. The administrative law judge’s finding that claimant is entitled to hearing aids for both ears is supported by substantial evidence. However, neither party is entitled, by statute or regulation, to choose which hearing aid is to be procured. The Board affirmed the administrative law judge’s finding that the lower cost hearing aid was a reasonable and necessary treatment for claimant’s binaural hearing


loss, based on its cost and functionality, as it is supported by substantial evidence. Green v. Ceres Marine Terminals, Inc., 43 BRBS 173 (2010), rev’d on other grounds, 656 F.3d 235, 45 BRBS 67(CRT) (4th Cir. 2011).
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