Injured worker can move on from employer-chosen treating doctor

by Matthew H. Ammerman on September 12th, 2018

   The LHWCA provides that the Secretary of Labor shall allocate regional administration of the LHWCA to district directors.[1] District directors are not judges, and most are not lawyers. But they have discretion over limited questions such as a LHWCA worker’s change of treating physician.[2] The director’s decision is reviewed on appeal under a broad, abuse-of-discretion standard.

   An injured worker is entitled to one free choice of physician within each specialty.[3] Such a worker cannot change treating physicians, whose opinions are often provided great weight by administrative law judges,[4] unless his employer or the presiding district director permits a change.[5] These competing rules act to minimize doctor-shopping by the worker or his employer.

   When the injured worker does not make a choice of physician and treats with a physician selected by his employer, he may still be unable to change physicians if he has acquiesced to treatment by that physician.[6]

  The Fifth Circuit in Ports America Louisiana, Inc. v. Director, OWCP [Scott],[7] tackles the question of when a LHWCA worker may switch treating physicians from an employer-chosen physician. Alexander Scott injured his hip and lower back in a forklift accident at work with Ports America. He consented to treatment from Ports America's physician, Dr. Steiner, that lasted approximately five months. Dr. Steiner then told Scott he had reached maximum medical improvement, did not need additional treatment, and was capable of full-duty work without medical restrictions.[8] Scott’s complaints of back pain persisted. He consulted other physicians but later returned to Dr. Steiner who assessed subjective complaints and maintained his released to full-duty work. But Dr. Steiner recommended a lumbar MRI. Scott was then examined by Dr. Bostick, who recommended he not return to work and undergo further treatment.

   Ports America refused to pay for treatment with Dr. Bostick. Ports America viewed Dr. Steiner as Scott’s treating physician and did not consent to a change. The district director for the Seventh Compensation District ordered Ports America to pay for Dr. Bostick’s treatment and for a Special Examination by a physician chosen by the director. Ports America refused and appealed to the Benefits Review Board, which affirmed the director’s decision.

   The Fifth Circuit was not writing on a clean slate. The court held in Atlantic & Gulf Stevedores, Inc. v. Neuman that when an injured worker is released by an employer-chosen physician, he has, in effect, been refused treatment by the employer.[9] The employer must pay medical treatment the worker thereafter procures if the worker shows it was necessary treatment for the injury. Here, Ports America argued that Dr. Steiner did not refuse to treat Scott, and, in fact, had sent him for an MRI. Therefore, Scott should be required to continue treatment with Dr. Steiner. The Fifth Circuit reasons that the preponderance of the evidence at the time the district director made his decision was that Dr. Steiner did not have any further medical treatment to offer Scott. Consequently, the director did not abuse his discretion in ordering Ports America to pay for treatment by Scott’s choice of physician, Dr. Bostick.[10] Ports America was also required to pay for the director-ordered Special Examination because Dr. Steiner disagreed whether Scott required more treatment and should return to work.

   The key points from this case: (1) the Director, OWCP, has considerable discretion when ordering a change of treating physician under the LHWCA; and, (2) this was a special case in which the worker’s initial treating physician was chosen by the employer, and, consequently, that physician’s release was viewed as a “refusal” of treatment by the employer.[11] It is unlikely that if the same worker chose his treating physician without the employer’s input that a change would have been granted under the same circumstances.

[1] 33 U.S.C. § 939(b); (viewed 7/1/2018).
[2] 33 U.S.C. § 907(b)( “… and [the district director] may, on his own initiative or at the request of the employer, order a change of physicians or hospitals when in his judgment such change is desirable or necessary in the interest of the employee ….”).
[3] 33 U.S.C. §§ 907(a).
[4] Petron Indus. v. Dir., OWCP [Courville], 2015 U.S. App. LEXIS 16230, *10 (5th Cir. 2015)(within ALJ’s discretion to afford greater weight to treating physicians).
[5] 33 U.S.C. §§ 907(b), (c)(2).
[6] See, e.g., Hunt v. Newport News Drydock & Shipbuilding Company, 28 BRBS 364 (1994).
[7] 714 F. App'x 398, 2018 AMC 350 (5th Cir. 2018).
[8] Id. at *2.
[9] 440 F.2d 908, 911 (5th Cir. 1971).
[10] Ports America, 714 F. App'x 398, *7-8.
[11] 33 U.S.C. § 907(d)(2)(worker may recover self-procured medical treatment where his employer refuses or neglects to provide treatment after a request for same).

Posted in not categorized    Tagged with LHWCA, change of physician, Section 7, 5th Circuit



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