Office of Workers' Compensation Programs (OWCP)
Division of Longshore and Harbor Workers' Compensation (DLHWC)
CHAPTER 5-200 CARE/SUPERVISION/REHABILITATION
1. Purpose and Scope. This Chapter establishes procedures for the determination and acquisition of appropriate medical care and qualified physicians for the treatment and/or evaluation of injured employees under the LHWCA. It explains the requirements of effective supervision to insure that timely assessments and determinations are made on the necessity, character, and sufficiency of medical care services, and/or rehabilitation services provided the injured worker. Medical care, services, and supplies for injured workers, as well as the responsibility for the management of the LHWCA program, are defined in Chapter 5-100.
2. Authorized Care/Services.
(1) In cases where the DD determines that there is a question as to the necessity, character, or sufficiency of medical care being furnished, or to be furnished the injured employee, the question should be resolved as promptly as possible. The DD should make use of available medical references, seek the advice of the OWCP District Medical Advisor where available, or consult the attending physician.
(2) If the injured employee is under the care of a qualified physician authorized or approved to provide medical care and there is any question concerning the attending physician's medical management of the case, e.g., the use of prolonged therapeutic measures of questionable value, it is proper to tactfully request the physician's comments regarding the need to continue the questionable treatment. It is contrary to medical ethics to tell a physician how to treat his patient; however, there should be no hesitation in requesting discussion of the medical problem involved.
(3) It is within the scope of the DD's supervisory functions and responsibilities to seek consultation services with other experts in specialized fields of medicine. In such instances, the attending physician must be advised of the action contemplated and informed that the results of any consultations will be made available to the physician.
3. Identification and Recognition of Need.
(1) An employee will not be entitled to recover any money spent for medical or other treatment or services, unless:
(a) The employee has requested the employer to furnish or authorize such treatment or service by a physician selected by the employee, or
(b) The employer, having knowledge of an injury requiring treatment or services, has refused or neglected to authorize or provide necessary treatment.
(2) For any special examination required of an employee by the DD, the employee shall submit to such examination at such place as he/she is to report, but the place so selected must be reasonably convenient for the employee. Failure to submit to a lawfully ordered examination can result in the suspension of any claim proceedings, and no compensation otherwise payable shall be paid for any period during which the employee refuses to submit to such examination.
(3) If, at any time, the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the DD (acting for the Secretary) or an ALJ may, by order, suspend the payment of further compensation during such time as the refusal continues. No compensation shall be paid at any time during the period of suspension, unless the circumstances justified the refusal (20 C.F.R. section 702.410 and section 7(d)(4) of the Act).
(a) Two-prong Test. The Benefits Review Board has held that application of this provision involves a two-prong test. The refusal must be both "unreasonable" and not "justified" by the circumstances. The burden of proof is on the employer to show that the refusal was unreasonable; if carried, the burden shifts to the employee to show circumstances justify the refusal.
(b) The board additionally defined reasonableness of refusal as an objective inquiry (i.e., what course would an ordinary person in the claimant's position pursue?), and justification as a subjective inquiry (i.e., focusing on the individual claimant's particular reasons for refusal).
4. Choice of Physicians.
5. Change of Physician at Claimant's Request.
6. Change of Physician - Request of Physician. If the attending physician requests to be relieved from continuing responsibility in a case, the request will be granted. However, the physician will be requested to furnish a report stating reasons for withdrawing from the case, describing the patient's condition at the time and any other recommendation the physician may have.
7. Change of Physician - Initiated by the DD. A change of the treating physician should be ordered by the DD if one or more of the following situations exist:
8. Procedure for Change of Physician. The primary reasons for changing physicians are to ensure that the best medical treatment possible is obtained and that medical reports are regularly and promptly submitted. The exercise of sound judgment in ordering a change of physicians is of prime importance. Liberal use of special examinations to resolve medical questions is encouraged. Great care should be taken not to interfere with treatment necessary for the well-being of the employee. If the treating physician expresses the opinion that a change of physician is desirable or necessary, the physician may make the referral if he desires and should notify the DD and EC when doing so. The physician may also request the OWCP to designate another physician and make a direct referral. A change in medical management will usually be accomplished by written notification to all parties or by memorandum following an informal conference. However, under authority of section 7(b), the DD may order a change of physician or treatment by issuing a formal order.
9. Conflict in Medical Evidence. In any case in which controversy arises with respect to the degree of an employee's physical impairment, diagnosis, or the extent and effect of treatment, an evaluation of such questions will be made by appointing one or more eminently qualified physicians to examine the employee.
10. Impartial Medical Examinations.
(1) The DDs should also utilize the section 7(e) procedures in cases where medical questions arise regarding the necessity for medical treatment, indications for or against medical procedures, the duration of required treatment, or the effectiveness of such treatment as may have been provided.
(2) The procedures in section 7(e) may and should be used when a question arises as to the degree of "the employee's physical impairment". However, questions as to the nature and extent of disability, other than where either section 8(c)(1)-(19) or section 8(c)(23) is the operative provision, are not solely medical questions, but involve both economic and medical concepts. The physician conducting the examination for estimating a claimant's physical impairment cannot and should not be asked to evaluate employee's economic disability.
(3) An impartial medical evaluation should also be utilized to resolve any outstanding medical questions in a case where section 8(f) relief is an issue. The questions may involve: the extent of permanent disability, the date of maximum medical improvement, and the contribution (if any) of the pre-existing condition to the subsequent disability or death.
(1) The services of all available and qualified Boardcertified specialists will be used to the extent practicable to eliminate any possible inference of bias or partiality. However, many general practitioners specializing in industrial medicine are well qualified to treat routine work-related injuries and conduct examinations under section 7(e).
(2) Section 7(i) provides that unless the parties agree, no physician shall be employed or selected to conduct examinations and reviews pursuant to section 7(e) who is an employee of an insurance carrier, or who during the period of two years prior to such employment has been employed by or accepted or participated in any fee related to a worker's compensation claim from any insurance carrier. This restriction does not disqualify all doctors who have been paid by insurers for treatment of patients during the preceding two years, but only those who have received fees from carriers or self-insured employers for formulating opinions about cases during that period.
(3) Where the parties participate in the selection of a physician, the DD will prepare a list of three or more Board-certified specialists for submission to the parties from which list the parties will be asked to agree on the physician to be selected. In selecting physicians to be submitted to the parties, or where the selection is made by the DD, a rotation system shall be followed.
(4) If there is reason to consider a specialist's views or opinions to be reasonably predictable because of the specialist's writings and/or reputation in the specialty, or otherwise, the specialist will not be selected. In making this determination, the OWCP District Medical Advisor, if available, will be consulted.
(5) In the following situations, the DD may order impartial examinations under section 14(h). These situations include a case in which payments are being made without an award or:
(a) Where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation, or from the employer, that the right to compensation is controverted;
(b) When no physician qualified under section 7(i), or acceptable to the parties can be identified.
(6) Where an impartial evaluation is to be used to clarify medical issues in a case where section 8(f) is an issue, the examination should be arranged by the DD. This is not to be done by the parties. The claimant should be examined by the impartial medical specialist. The DD should frame the questions to be answered by the specialist and the report of the specialist should be sent first to the DD. This procedure should be followed so that the specialist's evaluation will be impartial and not simply reflect the views of the parties.
(1) Any party dissatisfied with the report of the impartial examiner may request a review or re-examination of the employee by one or more different physicians employed or selected by the DD, and such review or re-examination must be completed within two weeks from the date ordered unless it is impossible to complete the review and render a report within this time period. Upon receipt of the report of this additional review and re-examination, a recommendation should be made for the consideration of the parties. (Also see PM 5-400.7, 5-400.12, and 3-301.7.)
(2) If the parties are unable to reach an agreement on the medical question(s) after the review or re-examination, the DD or CE shall nevertheless make a recommendation in accordance with PM 4-200. If the recommendation is not accepted, and if requested, the case should then be prepared for referral to the ALJ for a formal hearing on the issue. The DD, howeer, has authority to determine the necessity, character and sufficiency of any medical aid furnished or to be furnished to injured employees. He/she may order a change of physicians or hospitals when, in his/her judgment, such change is desirable or necessary, or where the charges exceed those prevailing within the community or exceed the provider's customary charges (section 7(b) of the Act), and may order the EC to pay for particular medical services.
11. Cost of Special Examination.
12. Rehabilitation. Effective supervision of the care and treatment of injured workers includes rehabilitation, both medical and vocational. The OWCP rehabilitation program assists disabled employees who are covered under the LHWCA to minimize their disabilities and return to gainful work. Rehabilitation helps injured workers to become self-supporting and productive, and saves money by elimination or reducing workers' compensation payments.
(1) Provide professional direction to the district office's rehabilitation program;
(2) Oversee the provision of services to individual injured workers, ensuring that quality and timeliness standards are met;
(3) Ensure compliance with OWCP contractual requirements on the part of Rehabilitation counselors (RC's), issuing warnings and termination notices when violations occur and ensuring that changes in OWCP policy are communicated promptly to RC's;
(4) In conjunction with Division of Planning, Policy and Standards (DPPS), ensure that as far as possible an adequate number of qualified counselors are certified in the office's area of jurisdiction to provide good quality services to injured workers;
(5) Maintain a complete and accurate RTS data base and provide data monthly and quarterly as required to DPPS;
(6) Through Claims Examiner referrals or using computer-generated lists, screen and open cases in sufficient numbers to achieve program plan goals;
(7) Through personal visits and telephone contact, maintain a fruitful working relationship with employers in the office's jurisdiction to promote the reemployment of injured workers;
(8) Provide ongoing direction to counselors on individual rehabilitation cases in the office's jurisdiction, ensuring timely and good quality services.
(1) Section 7 (a) of the LHWCA states that the employer shall provide medical care for such periods as the nature of a covered work injury or the process of recovery may require.
(2) Section 39 (c) provides that the Secretary shall direct the vocational rehabilitation of permanently disabled employees, and may use the Special Fund established by section 44 to procure vocational rehabilitation services and appliances necessary for an injured employee to resume work.
(3) Section 8(g) provides for maintenance allowance of up to $25 per week for an employee undergoing rehabilitation, to be paid from the Special Fund.
(4) Section 39(c)(1) requires the Secretary to provide information on vocational rehabilitation services and assist covered employees in obtaining the best such services.
(5) The Regulations at 20 DFR 702.501 - 508 govern the rehabilitation process.
(6) OWCP Rehabilitation Procedure Manual.
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