TOPIC 7

Topic  7.1       Medical Benefits--Medical Treatment Never Time Barred

Alexander v. Avondale Industries, Inc., 36 BRBS 142 (2002).

            At issue here was whether a subsequent "claim" for temporary disability in conjunction with medical benefits/surgery was timely. Here the claimant's original claim for permanent disability compensation had been denied as the employer had established the availability of suitable alternate employment which the claimant could perform at wages equal to or greater than his AWW. Additionally it should be noted that the claimant was not awarded nominal benefits. Several years later when the claimant underwent disc surgery the Employer denied a request for temporary total disability. The Board did not accept claimant's argument that Section 13 controlled as this was not a "new" claim. The Board then looked to Section 22 and found that while that section controlled, a modification request at this stage was untimely.

Topic  7.1       Medical Benefits--Medical Treatment Never Time Barred

Loew's L'Enfant Plaza v. Director (Baudendistel), (Unpublished) 2003 WL 471917 (D.C. Cir).

            The District of Columbia Circuit Court upheld Board and ALJ's rulings that where an employer gives a blanket authorization to a claimant to seek proper medical treatment for "any problems" resulting from the 1977 incident, the claimant was entitled to medical compensation for his later discovered ailments. Here the employer gave the broad authorization in 1977 for an electrical shock. In 1988 the claimant suffered from venous stasis ulcerations and sought medical treatment.

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Topic  7.3.1    Medical Benefits--Medical Treatment Provided By Employer—                         Necessary Treatment

Carroll v. M.Cutter Co., 38 BRBS 53 (En banc)(July 8, 2004), deny'g recon. of 37 BRBS 134 (2003). [See next entry.]

            The Board, en banc, upheld its previous panel decision wherein it found that under Section 7(a) an employer must pay for supervision of a claimant totaling 24 hours per day; family members need not assume some responsibility without pay for watching a claimant for portions of the day when they would be with him anyway. "Once the [ALJ] credited the undisputed evidence that as a result of his work injury claimant needs 24-hour care provided in part by professionals and in part by non-professionals, Section 7 established employer's liability for all of the required care." Section 7(a) bases the extent of liability exclusively on a determination of the care necessitated by the injury. "As the medical experts all agreed that claimant needs 24-hour supervision, the only legal conclusion that may be reached is that employer is fully liable for the prescribed 24-hour care pursuant to Section 7."

Topic  7.3.1    Medical Benefits--Medical Treatment Provided By Employer—                         Necessary Treatment

Carrol v. M.Cutter Co., ___ BRBS ___ (BRB Nos. 03-0189 and 03-0189A)(Oct. 30, 2003). [See Above.]

            At issue here was whether the employer had to pay for supervision 24 hours per day for a claimant who suffered a head injury resulting in cognitive impairment, especially affecting his short-term memory. (See Section 7(a) of the LHWCA noting that an employer shall furnish such medical, surgical, and other attendance or treatment…as the nature of the injury or the process of recovery may require.)

            According to the evidence, the claimant is capable of "performing the basic activities of caring for himself, such as eating, dressing, bathing and toileting. He also has the mobility to get around his house and his neighborhood." Nevertheless, the claimant's treating physician and the independent medical examiners all agree that he needs 24-hour supervision for several reasons: he is not always aware of his surroundings; he sometimes gets lost or, he forgets things (e.g., to take his medicine or to exercise). The uncontradicted testimony shows that the claimant sometimes engages in unsafe activities when he wanders around the house at night, such as putting a kettle on the stove, turning on the burner, and then going to sleep. Uncontroverted evidence further revealed that he has used power tools and become distracted, nearly severing his fingers, that he has gotten lost and needed to rely on his five-year-old granddaughter to find his way home from the store, and that he does not remember to take his medications on a regular basis. Additionally, it was noted that the claimant gained over 100 pounds after his injury because he would eat several times a day, having forgotten when he had previously eaten.

            The Board held that the ALJ erred in limiting the employer's liability to less than the 24 hours prescribed by the treating physician and recommended without contradiction by the other medical examiners. The Board stated that while the ALJ rationally found that the claimant does not need 24-hour paid licensed attendant care, it was nevertheless undisputed that he could not be left alone. The Board found that family members cannot be commandeered for services for free, regardless of their willingness to serve and that, to the extent that family members are willing to perform the services employer is obliged to provide, they must be paid, albeit at a reduced rate.

Topic  7.3.1    Medical Benefits--Medical Treatment-Necessary Treatment

Weikert v. Universal Maritime Service Corp., 36 BRBS 38 (2002).

            The requirements of Section 8 of the LHWCA do not apply to a claim for medical benefits under Section 7 of the LHWCA. The Board held that a claimant need not have a minimum level of hearing loss (i.e., a ratable loss pursuant to the AMA Guides) to be entitled to medical benefits.

            The Board also reject the employer's assertion that this case was controlled by Metro-North Commuter Railroad v. Buckley, 521 U.S. 424 (1997). Buckley involved a railroad employee who had been exposed to asbestos and sought to recover under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA), medical monitoring costs he may incur as a result of his exposure. Because Buckley had not been diagnosed with any asbestos-related disease and was not experiencing any symptoms, the Supreme Court held that he was not entitled to medical monitoring. Besides coming under another act, the Board specifically noted that in the instant longshore case, the ALJ specifically found that the claimant has trouble hearing and distinguishing sounds and, thus, has symptoms of hearing loss.

            Next the Board addressed the ALJ's delegation to the district director the issue as to whether hearing aids were a necessity in this matter. While noting that there are several instances where the district director has authority over certain medical matters, the Board stated that it has "declined to interpret the provisions of Section 7(b) of the [LHWCA], or Section 702.407 of the regulations,..., in such a manner as to exclude the [ALJ] from the administrative process when questions of fact are raised." Thus, the Board found, "the issue of whether treatment is necessary and reasonable, where the parties disagree, is a question of fact for the [ALJ]."

            The Board also stated that, "Contrary to employer's contention, the absence of a prescription for hearing aids from a medical doctor, as required by Virginia law, does not make claimant ineligible for hearing aids, or medical benefits, under the [LHWCA]. While claimant must comply with specific provisions under Virginia law before he is able to obtain hearing aids, claimant's compliance or non-compliance with state requirements does not affect the authority of the [ALJ] to adjudicate claimant's entitlement to medical benefits under the [LHWCA]."

Topic  7.3.1    Medical Benefits--Necessary Treatment

[ED. NOTE: The following is for informational purposes only.]

Stone Container Corp. v. Castle, Iowa Supreme Court No. 02/01-1291 (February 26, 2003).

            The state supreme court found that a lap top computer is a reasonable and necessary appliance that must be provided to a double amputee who must stay in a temperature-controlled environment. In so holding, the court rejected the employer's argument that a covered appliance had to be necessary for medical care. The court ruled that an appliance is covered when it "replaces a function lost by the employee as a result of the employee's work-related injury. The court reasoned that the lap top provided the employee with access to the outside world.

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Topic  7.3.2    Medical Benefits--Treatment Required by Injury

Carroll v. M.Cutter Co., 38 BRBS 53 (En banc)(July 8, 2004), deny'g recon. of 37 BRBS 134 (2003). [See next entry.]

            The Board, en banc, upheld its previous panel decision wherein it found that under Section 7(a) an employer must pay for supervision of a claimant totaling 24 hours per day; family members need not assume some responsibility without pay for watching a claimant for portions of the day when they would be with him anyway. "Once the [ALJ] credited the undisputed evidence that as a result of his work injury claimant needs 24-hour care provided in part by professionals and in part by non-professionals, Section 7 established employer's liability for all of the required care." Section 7(a) bases the extent of liability exclusively on a determination of the care necessitated by the injury. "As the medical experts all agreed that claimant needs 24-hour supervision, the only legal conclusion that may be reached is that employer is fully liable for the prescribed 24-hour care pursuant to Section 7."

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Topic  7.3.2    Medical Benefits--Treatment Required By Injury

Carrol v. M.Cutter Co., 37 BRBS 134 (2003).  [See Above.]

            At issue here was whether the employer had to pay for supervision 24 hours per day for a claimant who suffered a head injury resulting in cognitive impairment, especially affecting his short-term memory. (See Section 7(a) of the LHWCA noting that an employer shall furnish such medical, surgical, and other attendance or treatment…as the nature of the injury or the process of recovery may require.)

            According to the evidence, the claimant is capable of "performing the basic activities of caring for himself, such as eating, dressing, bathing and toileting. He also has the mobility to get around his house and his neighborhood." Nevertheless, the claimant's treating physician and the independent medical examiners all agree that he needs 24-hour supervision for several reasons: he is not always aware of his surroundings; he sometimes gets lost or, he forgets things (e.g., to take his medicine or to exercise). The uncontradicted testimony shows that the claimant sometimes engages in unsafe activities when he wanders around the house at night, such as putting a kettle on the stove, turning on the burner, and then going to sleep. Uncontroverted evidence further revealed that he has used power tools and become distracted, nearly severing his fingers, that he has gotten lost and needed to rely on his five-year-old granddaughter to find his way home from the store, and that he does not remember to take his medications on a regular basis. Additionally, it was noted that the claimant gained over 100 pounds after his injury because he would eat several times a day, having forgotten when he had previously eaten.

            The Board held that the ALJ erred in limiting the employer's liability to less than the 24 hours prescribed by the treating physician and recommended without contradiction by the other medical examiners. The Board stated that while the ALJ rationally found that the claimant does not need 24-hour paid licensed attendant care, it was nevertheless undisputed that he could not be left alone. The Board found that family members cannot be commandeered for services for free, regardless of their willingness to serve and that, to the extent that family members are willing to perform the services employer is obliged to provide, they must be paid, albeit at a reduced rate.

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Topic  7.3.7    Medical Benefits--Attendants

Carroll v. M.Cutter Co., 38 BRBS 53 (En banc)(July 8, 2004), deny'g recon. of 37 BRBS 134 (2003). [See next entry.]

            The Board, en banc, upheld its previous panel decision wherein it found that under Section 7(a) an employer must pay for supervision of a claimant totaling 24 hours per day; family members need not assume some responsibility without pay for watching a claimant for portions of the day when they would be with him anyway. "Once the [ALJ] credited the undisputed evidence that as a result of his work injury claimant needs 24-hour care provided in part by professionals and in part by non-professionals, Section 7 established employer's liability for all of the required care." Section 7(a) bases the extent of liability exclusively on a determination of the care necessitated by the injury. "As the medical experts all agreed that claimant needs 24-hour supervision, the only legal conclusion that may be reached is that employer is fully liable for the prescribed 24-hour care pursuant to Section 7."

Topic  7.3.7    Medical Benefits--Attendants

Carrol v. M.Cutter Co., 37 BRBS 134 (2003).  [See Above.]

            At issue here was whether the employer had to pay for supervision 24 hours per day for a claimant who suffered a head injury resulting in cognitive impairment, especially affecting his short-term memory. (See Section 7(a) of the LHWCA noting that an employer shall furnish such medical, surgical, and other attendance or treatment…as the nature of the injury or the process of recovery may require.)

            According to the evidence, the claimant is capable of "performing the basic activities of caring for himself, such as eating, dressing, bathing and toileting. He also has the mobility to get around his house and his neighborhood." Nevertheless, the claimant's treating physician and the independent medical examiners all agree that he needs 24-hour supervision for several reasons: he is not always aware of his surroundings; he sometimes gets lost or, he forgets things (e.g., to take his medicine or to exercise). The uncontradicted testimony shows that the claimant sometimes engages in unsafe activities when he wanders around the house at night, such as putting a kettle on the stove, turning on the burner, and then going to sleep. Uncontroverted evidence further revealed that he has used power tools and become distracted, nearly severing his fingers, that he has gotten lost and needed to rely on his five-year-old granddaughter to find his way home from the store, and that he does not remember to take his medications on a regular basis. Additionally, it was noted that the claimant gained over 100 pounds after his injury because he would eat several times a day, having forgotten when he had previously eaten.

            The Board held that the ALJ erred in limiting the employer's liability to less than the 24 hours prescribed by the treating physician and recommended without contradiction by the other medical examiners. The Board stated that while the ALJ rationally found that the claimant does not need 24-hour paid licensed attendant care, it was nevertheless undisputed that he could not be left alone. The Board found that family members cannot be commandeered for services for free, regardless of their willingness to serve and that, to the extent that family members are willing to perform the services employer is obliged to provide, they must be paid, albeit at a reduced rate.

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Topic 7.6.3                 Physician’s Report

ERRATA

            The second paragraph under this subtopic should read as follows:

            The Secretary may excuse the physician’s failure to do so if he finds it to be in the interest of justice.  See 33 U.S.C. § 907(d)(2). The pre-1985 version of 20 C.F.R. § 702.422 delegated the Secretary’s authority to the deputy commissioner [district director] and the the judge.  See Lloyd, 725 F.2d at 787, 16 BRBS at 54(CRT).  In Roger’s Terminal, 784 F.2d at 694, 18 BRBS at 87(CRT), a finding of no prejudice was affirmed.

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Topics  7.7      Medical Benefits--Unreasonable Refusal To Submit To Treatment

Rodriguez v. Columbia Grain, Inc., (Unpublished)(BRB No. 03-0376)(February 23, 2004).

            Here the Board vacated an ALJ’s Order to compel Appearance at Medical Examination.  When the employer replaced a scheduled panel’s psychiatrist with a neuropsychologist the claimant refused to attend, arguing that his claim was only for a purely physical injury.  When the ALJ issued an Order to Compel, the claimant appealed.    While finding that an ALJ has broad discretion, the Board noted that Section 18.14(a) of the OALJ Rules of Practice mandates that matters sought to be discovered be relevant to the subject matter involved in the proceeding.  “The [ALJ’s] summary conclusion in his Order does not sufficiently explain how the psychological component of the examination is relevant to these proceedings.  Moreover, claimant specifically raised this question below, asserting that since his claim for benefits under the Act is based upon a physical injury alone, an employer-sponsored psychological examination is not relevant to his claim of a work-related back injury.  The [ALJ] did not discuss claimant’s arguments in this regard or explain how the psychological evaluation of claimant is relevant to his claim.  As the [ALJ] did not address claimant’s assertions, which go directly to the relevancy of employer’s discovery request, the case must be remanded.”

Topic  7.7       Medical Benefits--Unreasonable Refusal to Submit to Treatment

Dodd v. Crown Central Petroleum Corp., 36 BRBS 85 (2002).

            This remand involved both a traumatic as well as psychological injury. Although finding the claimant to be entitled to total disability benefits, the ALJ ordered the benefits suspended pursuant to Section 7(d)(4), on the ground that the claimant unreasonably refused to submit to medical treatment, i.e., an examination which the ALJ ordered and the employer scheduled. The Board noted that Section 7(d)(4) requires a dual inquiry. Initially, the burden of proof is on the employer to establish that the claimant's refusal to undergo a medical examination is unreasonable; if carried, the burden shifts to the claimant to establish that circumstances justified the refusal. For purposes of this test, reasonableness of refusal has been defined by the Board as an objective inquiry, while justification has been defined as a subjective inquiry focusing narrowly on the individual claimant.

            Here the Board supported the ALJ's finding that the claimant's refusal to undergo an evaluation was unreasonable and unjustified, citing the pro se claimant's erroneous belief that he has the right to determine the alleged independence and choice of any physician the employer chooses to conduct its examination or can refuse to undergo the examination because the employer did not present him with a list of doctors in a timely manner, and the claimant's abuse of the ALJ by yelling and insulting the integrity of other parties. (The Board described the telephone conference the ALJ had with the parties as "contentious.") The Board held that the ALJ did not abuse his discretion by finding that the claimant's refusal to undergo the employer's scheduled examination was unreasonable and unjustified given the circumstances of this case. However, the Board noted that compensation cannot be suspended retroactively and thus the ALJ was ordered to make a finding as to when the claimant refused to undergo the examination.

            The Board further upheld the ALJ's denial of the claimant's request for reimbursement for expenses related to his treatment for pain management. The ALJ rejected the claimant's evidence in support of his request for reimbursement for pain management treatment pursuant to 29 C.F.R. § 18.6(d). That section provides that where a party fails to comply with an order of the ALJ, the ALJ, "for the purpose of permitting resolution of the relevant issues may take such action thereto as is just," including,

(iii) Rule that the non-complying party may not introduce into evidence...documents or other evidence...in support of... any claim....

(v) Rule...that a decision of the proceeding be rendered against the non-complying party.

            In a footnote, the Board noted that medical benefits cannot be denied under Section 7(d)(4) for any other reason than to undergo an examination. However, the Board went on to note, "The Act also provides for imposition of sanctions for failure to comply with an order. Under Section 27(b), the [ALJ] may certify the facts to a district court if a person resists any lawful order. 33 U.S.C. § 927(b). As these provisions are not inconsistent with the regulation at 29 C.F.R. § 18.6(d)(2), the [ALJ] did not err in applying it in this case."

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