USDOL OALJ LHWCA Benchbook, Topic 7, Medical Benefits (2002)

     A claim for medical benefits is never time-barred. Colburn v. General Dynamics Corp. , 21 BRBS 219, 222 (1988). Employer has a continuing obligation to pay an injured employee's medical expenses, even if the claim for Section 8 compensation is time-barred by Section 12 or 13, Strachan Shipping Co. v. Hollis , 460 F.2d 1108 ( 5th Cir. ), cert . denied , 409 U.S. 887 (1972); Wilson v. Southern Stevedore Co. , 1 BRBS 123 (1974), if the employee is no longer employed by the employer, see Todd Shipyards Corp. v. Black , 717 F.2d 1280, 16 BRBS 13 (CRT) ( 9th Cir. 1983), aff'g 13 BRBS 682 (1981), cert . denied , 466 U.S. 937 (1984), or if employer is granted relief under Section 8(f).

Section 8(f) does not apply to Section 7 medical costs. Barclift v. Newport News Shipbuilding & Dry Dock Co. , 15 BRBS 418 (1983), vacated and remanded on other grounds sub nom . Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. , 737 F.2d 1295, 16 BRBS 107 (CRT) ( 4th Cir. 1984); Scott v. Rowe Mach. Works , 9 BRBS 198 (1978); Spencer v. Bethlehem Steel Corp. , 7 BRBS 675 (1978) (attendant care); Duty v. Jet America , 4 BRBS 523 (1976) (no dollar limit on employer's Section 7 liability).

     Similarly, an award for medical expenses is independent of awards for, or denial of, Section 8 compensation or Section 9 death benefits, Union Stevedoring Corp. v. Norton , 98 F.2d 1012 ( 3d Cir. 1938), and must be paid during the three days following the injury, which are non-compensable under Section 8. 33 U.S.C. � 906(a); Ocean S.S. Co. v. Lawson , 68 F.2d 55 ( 5th Cir. 1933).

     Medical benefits are available for workers who have suffered work-related hearing loss injury even if that injury does not satisfy the requirements for entitlement to disability benefits. Ingalls Shipbuilding, Inc. v. Director, OWCP , 991 F.2d 163 ( 5th Cir. 1993). However, the Fifth Circuit went on to state that, while the claimant is entitled to medical benefits, he could not receive an award for benefits absent evidence of medical expenses incurred in the past or treatment necessary in the future . The court added that the worker could file a claim for medical benefits if and when treatment becomes necessary in the future .

[ED. NOTE: In a non-LHWCA consolidated claim for 174 separate, but virtually identical civil actions filed by seaman allegedly exposed to asbestos on board vessels, the Ninth Circuit held that the Jones Act does not permit recovery for medical monitoring for plaintiffs who have no yet developed symptoms of disease. In Re: Marine Asbestos Cases v. American Hawaii Cruises, Inc. , 265 F.3d 861 ( 9 ^th Cir. 2001) (D.C. CV-97-77777-HG) (September 10, 2001). ]

     Depending on the circumstances, physician's fees may be recovered from employer either as costs of litigation under Section 28 or as medical expenses under Section 7. Gott v. National Steel & Shipbuilding Co. , 16 BRBS 190 (1984). See Bradshaw v. J.A. McCarthy, Inc. , 3 BRBS 195 (1976), petition for review denied mem ., 547 F.2d 1161 ( 3d Cir. ), vacated and remanded , 433 U.S. 905 (1977), petition for review denied mem ., 564 F.2d 89 ( 3d Cir. 1977).

     If the employer defaults, the Special Fund is responsible for paying medical expenses. 33 U.S.C. � 918(b); Duty , 4 BRBS at 530. (For more of Section 8(f) Special Fund Relief, see Topic 8.7.)

     It is the claimant's burden to establish the necessity of treatment rendered for his work-related injury. See generally Schoen v. U.S. Chamber of Commerce , 30 BRBS 112 (1996); Wheeler v. Interocean Stevedoring, Inc. , 21 BRBS 33 (1988); Ballesteros v. Willamette Western Corp. , 20 BRBS 184 (1988).

7.2 INTEREST AND PENALTIES ON LATE PAYMENTS

7.3.6 Medical Insurance

     An insurance carrier providing coverage for non-occupational injuries or illnesses may intervene to recover amounts erroneously paid for a work-related injury. Aetna Life Ins. Co. v. Harris , 578 F.2d 52 ( 3d Cir. 1978), vacating and remanding Harris v. Sun Shipbuilding & Dry Dock Co. , 6 BRBS 494 (1977). Similarly, a medical provider may intervene to recover medical benefits to the extent that the benefits are owed to the provider in satisfaction of unpaid bills. Hunt v. Director, OWCP , 999 F.2d 419 (9 ^th Cir. 1993), 27 BRBS 240 (CRT) (1993). In Hunt, the Ninth Circuit has held that there is no distinction between those cases in which a claimant seeks reimbursement for medical services and those cases where the employer owes payment to the medical provider directly. Hunt, 999 F.2d at 421 - 423; 27 BRBS at 87 - 89 (CRT).

     In In the Matter of St. Mary's Hospital & Medical Center, Claimant v. Army & Air Force Exchange Service , 30 BRBS 894 (ALJ) (1996), the ALJ held that the medical provider/hospital was a "party in interest" under Section 7(d)(3) and could bring a separate claim for reimbursement under Sections 7(d)(3) and 19(c), and 5 U.S.C. � 8173. In St. Mary's , the medical provider treated the claimant after she settled her LHWCA claim (except fo medical benefits). The ALJ found that the provider had a right to bring this action even though the provider had not intervened in the claimant's LHWCA claim.

     In St. Mary's , the employer had contended that, as an arm of the United States Government, it was protected from suit in this case by the doctrine of sovereign immunity, and that St. Mary's only remedy was a suit in the Court of Federal Claims under the Tucker Act, 28 U.S.C. � 1346, or the Contract Disputes Act of 1978, 41 U.S.C. � 601 et seq. The ALJ, citing the Nonappropriated Fund Instrumentalities Act at 5 U.S.C.A. � 8173, noted that section not only waived sovereign immunity in actions brought by "any other person" entitled to damages as a result of the disability or death of an employee of a nonappropriated fund instrumentality, but says that St. Mary's is precluded from bringing its action, in contract or otherwise, against AAFES under any statute other than the LHWCA.

     An employer is not liable, however, to such third parties for medical services which are always gratis , Bender Welding , 558 F.2d at 764, and not liable to a claimant for expenses already paid by employer's non-occupational-injury carrier to prevent double recovery. Luker v. Ingalls Shipbuilding, Inc. , 3 BRBS 321 (1976). Distinguishing Luker , the Board has also held that a claimant may be reimbursed for sums paid by the claimant's private insurer. Employer is absolutely liable for furnishing medical expenses. Turner v. New Orleans (Gulfwide) Stevedores , 5 BRBS 418 (1977), rev'd and remanded on other grounds , 661 F.2d 1031, 14 BRBS 156 ( 5th Cir. 1981).

     In the more recent case of Nooner v. National Steel & Shipbuilding Co. , 19 BRBS 43 (1986), the Board held that an employer need reimburse a claimant only for his own out-of-pocket expenses for necessary medical care, not for care mistakenly paid for by private non-occupational insurers. However, the mistaken insurers may intervene and recover such payments. Id . at 46.

     In Quintana v. Crescent Wharf & Warehouse Co. , 18 BRBS 254, 257-58 (1986), the Board held that the claimant was not entitled to assert Medi-Cal's (Medicare of California) rights for reimbursement for medical services it provided to the claimant, since the claimant had no standing.

     On reconsideration, the Board modified its Decision and Order of May 5, 1986, holding that the ALJ erred in not allowing Medi-Cal to intervene for reimbursement of medical expenses. An insurance carrier providing coverage for non-occupational injuries can intervene and recover amounts mistakenly paid out for injuries determined to be work-related where the claimant is entitled to such expenses. Quintana v. Crescent Wharf & Warehouse Co. , 19 BRBS 52, 53 (1986) (Order on Reconsideration); Bazor v. Boomtown Belle Casino , ___ BRBS ___ (BRB No. 00-0928B)(July 11, 2001).

In Ozene v. Crescent Wharf & Warehouse Co. , 19 BRBS 9 (1986), the issue presented was whether a carrier has an independent right to reimbursement of medical costs where the employee does not comply with the statutory requirements, a matter of first impression before the Board. The Board held that the right to such reimbursement is solely derivative of a claimant's right to such expenses under the LHWCA.

     Thus, inasmuch as the ALJ had properly determined that the decedent had failed to request authorization for his medical treatment as required by � 7(d), the Board affirmed his finding that the carrier was not entitled to reimbursement of sums it mistakenly paid for decedent's occupationally-related condition. Ozene , 19 BRBS at 11.

     Similarly, a state's right to reimbursement for a claimant's medical expenses paid through a state compensation act is contingent upon the claimant obtaining an award of medical benefits under the LHWCA. McDougall v. E.P. Paup Co. , 21 BRBS 204, 211 (1988). In McDougall , the Board noted that while the State appeared to have an action against the claimant under state law, an intervenor's right to reimbursement of medical benefits under the LHWCA is a derivative right. Id .

7.3.7 Attendants

     Medical expenses may also include an attendant, where such services are necessary because the employee is totally blind, has lost the use of both hands or both feet, is paralyzed and unable to walk, or is otherwise so helpless as to require constant attendance. See 20 C.F.R. § 702.412(b). Fees for such an attendant are controlled by 20 C.F.R. § 702.413.

     It has been held that if an employee's injuries are so severe as to require domestic services, the employer must provide them, even to the extent of reimbursing a family member who performs them. Gilliam , 8 BRBS at 279-80; Timmons v. Jacksonville Shipyards , 2 BRBS 125 (1975) (wife as provider).

     In Falcone v. General Dynamics Corp. , 21 BRBS 145, 147 (1988), the Board found that the judge had properly held employer responsible for paying for home health care services where the claimant would be "better off" remaining with his family than being cared for in a nursing home.

     In Sanders v. Marine Terminals Corp. , 31 BRBS 19 (1997), the Board found that initially the district director has the jurisdiction to determine if medical care is appropriate; however, once there is a disputed factual issue the matter transfers to the jurisdiction of the OALJ for a full evidentiary hearing and determination of the issue. 31 BRBS at 21-23; 33 U.S.C. �919(d); see generally Toyer v. Bethlehem Steel Corp. , 28 BRBS 347 (1994) (McGranery, J., dissenting) (the excusing of late filing of a physician's first report is a discretionary function of the district director); Maine v. Brady-Hamilton Stevedore Co. , 18 BRBS 129, 131 (1986); 702.412(b). The Board went on to uphold the judge's determination that home health care was an appropriate medical treatment where the treating physician had recommended home care to prevent the aggravation of an existing work related injury.

     In Jackson v. Universal Maritime Service Corp. , 31 BRBS 103 (1997), the Board held that the granting of a change in physician is a purely discretionary act under the sole power of the district director. See also 33 U.S.C. �907(b). The case revolved around the employer's request for a formal change of physician to the doctor who's treatment was most successful. The Board found that the request was appropriate since the employer or the director can request a change of physician, against the employee's wishes, where it is in his best interest. 33 U.S.C. �907(b). This is distinguished from the Sanders scenario where there is a question of fact as to whether the actual treatment is required.

7.4 FREE CHOICE OF PHYSICIAN

7.4.1 Authorization by Secretary

     The claimant has the right to choose an attending physician authorized by the Secretary to provide the required medical care. The Secretary is required to actively supervise the medical care provided and to receive periodic reports about it. The Secretary, through the district director, has the authority to determine the necessity, character, and sufficiency of present and future medical care, and may order a change of physicians or hospitals if the Secretary deems it desirable or necessary to the claimant's interest, either on the director's own initiative, or at employer's request. See 33 U.S.C. � 907(b).

      Active supervision of the injured employee's medical care is to be performed by the Director through the district directors (formerly called deputy commissioners) and their designees. 20 C.F.R. § 702.407. See Roulst v. Marco Constr. Co. , 15 BRBS 443 (1983) (the Board held that the deputy commissioner may order a change of physicians under Section 7(b)). The 1984 Amendments add a provision that the Secretary may also order such a change where the charges exceed those prevailing in the community for the same or similar services or exceed the provider's customary charge. 33 U.S.C. � 907(a).

     The term "physician" includes doctors of medicine, surgeons, podiatrists, dentists, clinical psychologists, optometrists, osteopaths, and chiropractors, within the scope of their practice, as defined by state law. [ For more on chiropractors, see Topic 7.3.4 , supra ]

     A pastoral counselor must document his credentials to show whether he is a physician within the meaning of the regulation or qualified to perform "other" compensable treatment. Turner , 16 BRBS at 258.

     Under Section 7(b) and (c), the employer bears the burden of establishing that physicians who treated an injured worker were not authorized to provide treatment under the LHWCA. Roger's Terminal & Shipping Corp. v. Director, OWCP , 784 F.2d 687, 18 BRBS 79 (CRT) ( 5th Cir. ), cert . denied , 479 U.S. 826 (1986).

     The 1972 version of Section 7(c) allowed the Secretary to designate the physicians who were authorized to render medical care under the LHWCA and required her to make available to employees the names of the authorized physicians in their community. This subsection was amended by the 1984 Amendments, and now requires the Secretary to annually prepare a list of physicians and health care providers in each compensation district who are not authorized to render medical care or services under the Act and to make this list available to employees and employers in each compensation district. See 33 U.S.C. � 907(c)(1).

7.4.2 Emergencies

     If the employee cannot choose an attending physician due to the nature of his injury and the injury requires immediate treatment, the employer is to select a physician for him.

     If the employer selected a physician in an emergency situation, the employee may change physicians when he is able to make a selection, on written authorization from the employer, or, if employer withholds consent, from the deputy commissioner. See 20 C.F.R. § 702.405. The regulation contemplates severe injuries, unconsciousness, or similar incapacity in order for the employer to select a physician due to the necessity of immediate treatment. Bulone v. Universal Terminal & Stevedoring Corp. , 8 BRBS 515, 517 (1978).

     Medical services provided by physicians or health care providers who are on the list published pursuant to Section 7(c)(1) shall not be reimbursable except in emergency situations. 33 U.S.C. � 907(c)(1)(C). It is the employer's burden to establish physicians providing treatment were not authorized. Roger's Terminal & Shipping Corp. v. Director, OWCP , 784 F.2d 687, 18 BRBS 79 (CRT) ( 5th Cir. ), cert . denied , 479 U.S. 826 (1986).

7.5 CHANGE OF PHYSICIANS

     Prior to the 1984 Amendments, the regulation at 20 C.F.R. § 702.406 detailed the procedures to be followed to obtain a change in physicians once a claimant has made his initial free choice of physicians pursuant to Section 7(b). The 1984 Amendments incorporated this regulation into Section 7(c)(2) of the LHWCA.

     Section 7(c)(2) of the 1984 LHWCA provides that when the employer or carrier learns of its employee's injury, either through written notice or as otherwise provided by the LHWCA, it must authorize medical treatment by the employee's chosen physician. Once a claimant has made his initial, free choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. See 33 U.S.C. � 907(c)(2); 20 C.F.R. § 702.406.

     Employer is ordinarily not responsible for the payment of medical benefits if a claimant fails to obtain the required authorization. Slattery Assocs. v. Lloyd , 725 F.2d 780, 787, 16 BRBS 44, 53 (CRT) ( D.C. Cir. 1984); Swain v. Bath Iron Works Corp. , 14 BRBS 657, 664 (1982). Failure to obtain authorization for a change can be excused, however, where the claimant has been effectively refused further medical treatment. Lloyd , 725 F.2d at 787, 16 BRBS at 53 (CRT); Swain , 14 BRBS at 664; Washington v. Cooper Stevedoring Co. , 3 BRBS 474 (1976), aff'd , 556 F.2d 268, 6 BRBS 324 ( 5th Cir. 1977); Buckhaults v. Shippers Stevedore Co. , 2 BRBS 277 (1975). ( See refusal of treatment discussion at Section 7(d)).

     Where the authorized physician withdraws/retires from the practice of medicine and refers his patients to a new doctor, no new authorization is required. According to the Board, the reasonable conclusion is that the claimant's initial physician provided the care of another physician whose services were necessary for the proper care and treatment of the claimant's compensable injury, and the new doctor must be considered to be the physician authorized to provide medical treatment. Maguire v. Todd Pac. Shipyards Corp. , 25 BRBS 299, 301-02 (1992).

7.5.1 Specialists

     Consent to change physicians shall be given when the employee's initial free choice was not of a specialist whose services are necessary for, and appropriate to, proper care and treatment. Consent may be given in other cases upon a showing of good cause for change. Slattery Assocs. v. Lloyd , 725 F.2d 780, 16 BRBS 44 (CRT) ( D.C. Cir. 1984); Maguire , 25 BRBS at 301-02; Swain v. Bath Iron Works Corp. , 14 BRBS 657 (1982). The regulation only states that an employer may authorize a change for good cause; it is not required to authorize a change for this reason. Swain , 14 BRBS at 665.

     In Senegal v. Strachan Shipping Co. , 21 BRBS 8, 11 (1988), the Board held that an employer was not required to consent to a change of physicians where the 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. The employer was not required to give consent because the initial physician had sent the claimant to other specialists skilled in treating pulmonary injuries (resulting from the exposure to fumes), 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).

     In contrast, in Armfield v. Shell Offshore , 25 BRBS 303, 309 (1992), the Board affirmed the judge's conclusion that the claimant was not required to seek prior authorization for her psychiatric treatment where the evidence indicated that the claimant had been referred to the psychiatrist by her treating physician. The initial physician was thus providing the care of a specialist whose services were necessary for the proper care and treatment of the compensable injury pursuant to � 7(b) and (c)(2) of the LHWCA. Id .

7.6 REIMBURSEMENT

     Section 7(d)(1) details when a claimant who has paid his own medical expenses can be reimbursed by the employer. Section 7(d)(1) of the LHWCA, as amended in 1984, states:

An employee is not entitled to reimbursement of money which he paid for medical or other treatment or services unless:

(A) his employer refused or neglected to provide them and the employee has complied with subsections (b) and (c) and the applicable regulations, or

(B) the nature of the injury required the treatment and services and, although his employer, supervisor, or foreman knew of the injury, he neglected to provide or authorize them.

33 U.S.C. � 907(d)(1).

     Prior to the 1984 Amendments, the LHWCA provided that a claimant could not be reimbursed unless he requested authorization for such services and the employer refused to provide them, or, if treatment was required for an injury, the employer, having knowledge of the injury, refused or neglected to provide treatment.

     An employee cannot receive reimbursement for medical expenses under this subsection unless he has first requested authorization, prior to obtaining the treatment, except in cases of emergency or refusal/neglect. 20 C.F.R. § 702.421; Shahady v. Atlas Tile & Marble Co. , 682 F.2d 968 ( D.C. Cir. 1982) (per curium), rev'g 13 BRBS 1007 (1981), cert . denied , 459 U.S. 1146 (1983); McQuillen v. Horne Bros., Inc. , 16 BRBS 10 (1983); Jackson v. Ingalls Shipbuilding Div., Litton Sys. , 15 BRBS 299 (1983); Schoen v. U.S. Chamber of Commerce , 30 BRBS 112 (1996).

     The Fourth Circuit has reversed a holding by the Board that a request to the employer before seeking treatment is necessary only where the claimant is seeking reimbursement for medical expenses already paid; the court held that the prior request requirement applies at all times. Maryland Shipbuilding & Drydock Co. v. Jenkins , 594 F.2d 404, 10 BRBS 1 ( 4th Cir. 1979), rev'g 6 BRBS 550 (1977).

     A claimant's right to an initial free choice of physician pursuant to subsection (b) does not negate the prior request requirement. Beynum v. Washington Metro. Area Transit Auth. , 14 BRBS 956 (1982); Betz v. Arthur Snowden Co. , 14 BRBS 805 (1981) (prior request requirement applies to treatment rendered by claimant's first physician of choice); Shahady v. Atlas Tile & Marble Co. , 13 BRBS 1007 (1981) (overruling Bulone ), rev'd on other grounds , 682 F.2d 968 ( D.C. Cir. 1982), cert . denied , 459 U.S. 1146 (1983).

     Additionally, the Section 7(d) requirement of prior request is not excused because claimant is not aware that his illness is work-related at the time of seeking outside treatment. Mattox v. Sun Shipbuilding & Dry Dock Co. , 15 BRBS 162, 171-72 (1982). Before an employer could be said to have neglected to provide care, there must first have been a request for such care. Jackson v. Navy Exch. Serv. Center , 9 BRBS 437 (1978).

     A decedent's failure to comply with the Section 7(d) request for authorization requirement bars the claimant widow's right to reimbursement of medical expenses. Lustig v. Todd Shipyards Corp. , 20 BRBS 207, 210 (1988).

     A misdiagnosis by the employee's chosen physician does not excuse the employee's failure to request treatment. Jackson v. Navy Exch. Serv. Center , 9 BRBS at 439. See also Baker v. New Orleans Stevedoring Co. , 1 BRBS 134 (1974) (employer's offer of treatment by one of its panel of physicians and its employee's failure to request treatment preclude reimbursement).

     It has been held that transfer of the employee's records to her private physician could constitute authorization, when the employer should have known that the military hospital to which it originally sent her could provide only emergency care to ineligible civilians. Base Billeting Fund, Laughlin Air Force Base v. Hernandez , 588 F.2d 173, 9 BRBS 634 ( 5th Cir. 1979); see also Rieche v. Tracor Marine , 16 BRBS 272, 275 (1984) (employer's paramedic referred the employee to employee's own physician--tantamount to refusal or neglect to provide treatment).

     Similarly, an employer's failure to object to its employee's resorting to a physician other than the one authorized, when the authorized physician was unavailable in an emergency situation, has been found equivalent to authorizing later treatment by him and his chosen hospital and nurse. Bethlehem Shipbuilding Corp. v. Monahan , 62 F.2d 299 ( 1st Cir. 1932); see also White v. Sealand Terminal Corp. , 13 BRBS 1021 (1981) (employee need not request authorization for emergency treatment).

7.6.1 Employer Refuses

     Once the employer has refused to provide treatment or to satisfy a claimant's request for treatment, the claimant is released from the obligation of continuing to seek employer's approval. Pirozzi v. Todd Shipyards Corp. , 21 BRBS 294 (1988); Betz , 14 BRBS at 809. See generally Lloyd , 725 F.2d 780, 16 BRBS 44 (CRT). The claimant then need only establish that the treatment subsequently procured on his own initiative was necessary for treatment of the injury, in order to be entitled to such treatment at the employer's expense. Rieche , 16 BRBS at 275; Beynum , 14 BRBS at 958.

     In Wheeler v. Interocean Stevedoring , 21 BRBS 33 (1988), the Board stated that for medical expenses to be compensable, an employee need not seek the employer's authorization of medical treatment once the employer has unreasonably refused to provide treatment or to satisfy the employee's request for treatment. This standard, however, is incorrect. The employer's refusal need not be unreasonable for the employee to be released from the obligation of seeking his employer's authorization of medical treatment. See generally 33 U.S.C. � 907(d)(1)(A). Accordingly, Betz , 14 BRBS 805, and other decisions setting forth the "unreasonable refusal" standard should not be cited in discussions of this authorization issue.

     The proper standard is set forth in Wheeler , 21 BRBS 33, as corrected by an errata sheet issued by the Board on May 26, 1988. ( see 6/3/88 slip-opinion packet--corrected page apparently not published in BRBS).

     In Wheeler (corrected version), the Board reiterated the standard for compensable medical expenses: although medical services must generally be authorized by the employer to be compensable, an employee is released from the obligation of seeking employer authorization once the employer has refused to provide treatment or to satisfy the employee's request for treatment. In this situation, the employee need only establish that the unauthorized medical services were necessary to treatment of his work injury for the services to be compensable. Id .

     Where a claimant first saw a doctor for evaluation purposes, then selected another physician and requested treatment which employer refused to authorize, the Fifth Circuit affirmed the award of medical expenses for treatment by the selected doctor and a specialist to whom he referred the claimant. Roger's Terminal , 784 F.2d at 693, 18 BRBS at 86 (CRT).

     The employee need not request treatment when such a request would be futile, Shell v. Teledyne Movable Offshore , 14 BRBS 585, 590 n.2 (1981), such as when an employer fires its employee because it did not believe the employee's medical complaints. Mitchell v. Sun Shipbuilding & Dry Dock Co. , 7 BRBS 215 (1977), aff'd mem . in pert . part , 588 F.2d 823 ( 3d Cir. 1978).

     If an employer has no knowledge of the injury, it cannot have neglected to provide treatment, and the employee therefore is not entitled to reimbursement for any money spent before notifying the employer. McQuillen v. Horne Bros., Inc. , 16 BRBS at 16.

     An employer is considered to have knowledge when it knows of the injury and has facts that would lead a reasonable person to conclude that it might be liable for compensation and should investigate further. Harris v. Sun Shipbuilding & Dry Dock Co. , 6 BRBS 494 (1977), rev'd on other grounds sub nom . Aetna Life Ins. Co. v. Harris , 578 F.2d 52 ( 3d Cir. 1978).

     An employer has not, however, neglected to provide or authorize treatment after the employer is aware of the injury if the claimant never gave employer the opportunity to refuse or authorize treatment. Marvin v. Marinette Marine Corp. , 19 BRBS 60 (1986); Mattox , 15 BRBS at 172. In Mattox , the employer's mere knowledge did not establish neglect or refusal because the claimant never requested care. Id .

     An employer's physician's statement that the employee is recovered and discharged from treatment may be tantamount to the employer's refusing to provide treatment. Shahady , 682 F.2d at 970; Walker v. AAF Exch. Serv. , 5 BRBS 500 (1977); Buckhaults v. Shippers Stevedore Co. , 2 BRBS 277 (1975), as may be testimony by employer's physicians at the hearing opposing the treatment request, Atlantic & Gulf Stevedores v. Neuman , 440 F.2d 908 ( 5th Cir. 1971), a mistaken diagnosis, Cooper Stevedoring v. Washington , 556 F.2d 268, 6 BRBS 324 ( 5th Cir. 1977), aff'g 3 BRBS 474 (1976); Matthews v. Jeffboat, Inc. , 18 BRBS 185 (1986); McGuire v. John T. Clark & Son, Inc. , 14 BRBS 298 (1981), or employer's physician urging that the employee return to work. Rivera v. National Metal & Steel Corp. , 16 BRBS 135 (1984).

     Where an employer's physician's actions constitute a refusal of treatment, the employee is justified in seeking treatment elsewhere, without the employer's authorization, and is entitled to reimbursement for necessary treatment subsequently procured on his own. Matthews , 18 BRBS at 189; Rivera , 16 BRBS at 138.

     In Slattery Associates v. Lloyd , 725 F.2d 780, 16 BRBS 44 (CRT) ( D.C. Cir. 1984), rev'g 15 BRBS 100 (1980), the court reversed the Board's holding that a physician's conduct constituted a refusal of treatment. The court stated that the physician's positive diagnosis and release for work did not amount to a refusal of treatment; an employer is not considered to have refused to provide treatment merely because its physician proposes a different method of treatment from a claimant's physician, unless the treatment is demonstrably improper and medically unacceptable.

     The court additionally held that the Board erred in concluding that the physician was "employer's physician" so that the physician's "refusal" could be imputed to employer. A chain of referrals does not necessarily establish this relationship, if the physicians are independent; neither does the employer's calling the physician as a witness. Lloyd , 725 F.2d at 78, 16 BRBS at 52 (CRT).

     A physician's letter stating to the employer's workers' compensation carrier, and not to the employee, that the employee is recovered is not a refusal. Betz , 14 BRBS at 809. A discharge from treatment does not imply that a request for pain medication would be futile. Scott , 9 BRBS at 824.

     The Board has affirmed a finding that a physician's misdiagnosis and recommendation that the claimant return to work was tantamount to a refusal to treat, thereby excusing the claimant's failure to get the employer's authorization and consent to obtain medical treatment, and the physician's failure to file the required reports with employer. Thus, an award of medical benefits was affirmed. Matthews , 18 BRBS at 189.

7.6.2 Employer Ignores

     Where an employer takes no action on a claimant's request to be examined by a physician, the employer has effectively refused or at least neglected to provide treatment or services within the meaning of the LHWCA. Rogers v. Pal Servs. , 9 BRBS 807, 801-11 (1978).

7.6.3 Physician's Report

     For the claim to be valid and enforceable against the employer, the employee's treating physician must furnish the employer and the deputy commissioner, within 10 days following the first treatment, with a report of the injury or treatment on a form prescribed by the Secretary. Such notice must also be provided when the claimant is hospitalized. Holmes v. Garfield Memorial Hosp. , 123 F.2d 166 ( D.C. Cir. 1941).

     The Board has held that even if employer explicitly refused treatment, the employee is still obligated to file reports. Mattox , 15 BRBS at 172.

      The burden of proof regarding compliance with this requirement is on the employee. Jenkins , 594 F.2d at 407, 10 BRBS at 8.

     The Secretary may excuse the failure to comply with the provisions of Section 7(d)(2) in the interest of justice. See Roger's Terminal Roger's Terminal & Shipping corp. v. Dir., OWCP , 784 F.2d 687, 18 BRBS 79(CRT)(5th Cir.), cert. denied , 479 U.S. 826 (1986); Force v. Kaiser Aluminum & Chemical Corp. , 23 BRBS 1, 6-7 (1989), aff'd in part , rev'd in part sub nom . Force v. Director, OWCP , 938 F.2d 981, 25 BRBS 13 (CRT) ( 9th Cir. 1991); 20 C.F.R. §702.422. Under Section 7(d)(2) and Section 702.422(b), only the Director, through his delegates, the district directors, has the authority to make a determination as to whether claimant should be excused from complying with the requirements of Section 7(d)(2). See Krohn v. Ingalls Shipbuilding, Inc. , 29 BRBS 72 (1995); Toyer v. Bethlehem Steel Corp. , 28 BRBS 347 (1994); see also Ferrari v. San Francisco Stevedoring Co. , 34 BRBS 78 (2000). By contrast, the pre-1985 version of 20 C.F.R. §702.422(b) delegated the Secretary's authority to the deputy commissioner [district director] and the judge. See Slattery Assocs. v. Lloyd , 725 F.2d 780, 16 BRBS 44(CRT)(D.C. Cir. 1984), rev'g 15 BRBS 100 (1980). Once the district director makes his determination, his decision is directly appealable to the Board and the issue will not go before an ALJ. Toyer , 28 BRBS at 353.

     However, a dispute as to whether a physician's report was filed in a timely manner is a factual matter within the administrative law judge's authority to resolve. Weikert v. Universal Maritime Serv. Corp. , 36 BRBS 38 (2002), citing Sanders v. Marine Terminals Corp. , 31 BRBS 19 (1997); Toyer , 28 BRBS at 353 (noting potential bifurcation problems). If the ALJ were to find it to be untimely filed, the case would then have to be remanded to the district director for the discretionary determination as to whether the untimely filing should be excused for good cause shown. Toyer , 28 BRBS at 353; see also Krohn , 29 BRBS at 73. In an unpublished decision, the Board vacated an ALJ's finding that the district director implicitly excused claimant's failure to comply with the reporting requirements of Section 7(d)(2), stating that the district director's recommendation did not refer to the physicians in question and, moreover, it was incumbent upon the ALJ to remand the case to the district director once employer raised the issue of claimant's non-compliance with the reporting requirement. Simms v. Pneu-Elect, Inc. , BRB No. 03-0401 (Feb. 25, 2004).

     In Roger's Terminal , the Fifth Circuit held that a treating physician's failure to provide the employer with a report of the worker's injury within 10 days following the first treatment did not prejudice the employer, who remained liable for the injured worker's medical expenses. In that instance, a full report had been delivered 15 days after the first treatment, the employer had actual notice of the injury on the day of its occurrence, and the employer was notified of treatment by telephone prior to submission of the written report. Roger's Terminal , 784 F.2d at 693-94, 18 BRBS at 87. ( The Fifth Circuit found that the employer had not suffered prejudice, since, prior to receiving the initial care report, the employer had actual notice of the injury on the day it occurred.)

     Similarly, in Maguire v. Todd Pacific Shipyards Corp. , 25 BRBS 299 (1992), the Board found that although the physician, who had taken over treatment of the claimant when the claimant's authorized physician retired, had failed to provide a report to employer within 10 days of the first treatment, the employer had not provided any evidence to suggest that the treatment was unnecessary or unrelated to the claimant's work injury. Thus, the Board concluded that an excusal of the delay was in the interests of justice. Id .

     On the other hand, in Force v. Kaiser Aluminum & Chemical Corp. , 23 BRBS 1, 6-7 (1989), aff'd in part , rev'd in part sub nom . Force v. Director, OWCP , 938 F.2d 981, 25 BRBS 13 (CRT) ( 9th Cir. 1991), the Board affirmed a finding that the decedent's spouse was not entitled to reimbursement of decedent's medical expenses where she had not notified the employer during the period of treatment and the decedent's physician had not filed the requisite first report of injury.

7.7 UNREASONABLE REFUSAL TO SUBMIT TO TREATMENT

     Section 7(d)(4) of the LHWCA as amended in 1984 provides that the Secretary or judge may, by order, suspend the payment of all further compensation to an employee during any period in which he unreasonably refuses to submit to medical or surgical treatment, or to an examination by the employer's chosen physician, unless the circumstances justified the refusal. Furthermore, Section 7(d)(4) cannot be applied retroactively. It is inconsistent with the statutory language and case law to apply Section 7(d)(4) to terminate payments for a period prior to the employer's raising the issue. Dodd v. Newport News Shipbuilding & Dry Dock Co. , 22 BRBS 245 (1989).

     The Board has held that this is a two-prong test . The refusal must be both "unreasonable" and not "justified" by the circumstances. Further, the Secretary has discretion to suspend compensation or not, even if the employee fails both prongs. Pettus v. American Airlines , 6 BRBS 461 (1977). The Fourth Circuit vacated Pettus , however, holding that the Board was bound to suspend compensation based on a Virginia state workers' compensation proceeding which found the employee's refusal to be unjustified under the Virginia Act. Pettus v. American Airlines , 587 F.2d 627, 8 BRBS 800 ( 4th Cir. 1978), cert . denied , 444 U.S. 883 (1979).

     In Hrycyk v. Bath Iron Works Corp. , 11 BRBS 238 (1979), the Board followed its holding in Pettus and held that 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 that the circumstances justify the refusal. 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). Hrycyk , 11 BRBS at 241-42.

[ED. NOTE: The Board has dubbed the Section 7(d)(4) test as the "Hrycyk Test." This is a dual test for determining whether benefits may be suspended as a result of a claimant's failure to undergo surgical treatment. First, the employer must make an initial showing that the claimant's refusal to undergo surgical treatment is unreasonable; the reasonableness of the claimant's actions must be appraised in objective terms. Second, if the employer meets this burden, the burden shifts to the claimant to show that the circumstances justify his refusal; appraisal of the justification of the claimant's actions is a subjective inquiry. ]

     It has been held reasonable, as a matter of law, for an employee to refuse surgery when no physician says that it would be helpful and the treating physician advises the claimant not to undergo it. Adams v. Brookfield & Baylor Constr. Co. , 5 BRBS 512 (1977). Similarly, if the judge finds that the employee never received notice of a scheduled examination, no "unreasonable refusal" took place. Toraiff v. Triple A Mach. Shop , 1 BRBS 465 (1975).

     The Board has held that Section 7(d) does not allow suspension of compensation if a claimant refuses to undergo rehabilitation evaluation or training . Simpson v. Seatrain Terminal , 15 BRBS 187 (1982) (evaluation) (Ramsey, J., dissenting); Morgan v. Asphalt Constr. Co. , 6 BRBS 540 (1977) (training); see Carpenter v. Potomac Iron Works , 1 BRBS 332 (1975), aff'd mem ., 535 F.2d 1325 ( D.C. Cir. 1976) (held, refusal to undergo vocational rehabilitation reasonable because state and federal authorities advised that rehabilitation was not indicated). But see Naimoli v. Sun Shipbuilding & Dry Dock Co. , 5 BRBS 590 (1977) (reluctance to undergo rehabilitation treatment should be pursued under Section 7(d)).

Section 7(d) does, however, apply to a refusal to be examined by employer's chosen physician for purposes of a medical vocational rehabilitation evaluation . Mendez v. Bernuth Marine Shipping , 11 BRBS 21, 27 (1979), aff'd mem ., 638 F.2d 1232 ( 5th Cir. 1981).

     Judge Ramsey dissented in Simpson , and stated that he would hold that where a claimant unreasonably refuses to undergo a rehabilitation evaluation, the deputy commissioner can suspend compensation under Section 7(d). 15 BRBS at 193. Cf . Villasenor v. Marine Maintenance Indus. , 17 BRBS 99, motion for recon . denied , 17 BRBS 160 (1985) (held, refusal to undergo rehabilitation evaluation is a factor which must be considered in evaluating the extent of disability). See also Calicutt v. Sheppard Air Force Base Billeting Fund , 16 BRBS 111 (1984) (affirmed deputy commissioner's finding that Section 7(d) does not apply where the claimant was physically incapable of undergoing the rehabilitation evaluation at the time requested).

     A judge cannot excuse a claimant's failure to cooperate with employer's chosen examining physician on the grounds that the claimant lacks confidence in the physician, although that might be a valid reason to refuse him as a treating physician. Jenkins , 594 F.2d at 407; 10 BRBS at 8-9. See also McCabe v. Ball Builders , 1 BRBS 290 (1975) (bitterness towards employer's physician).

     A judge may not award compensation when suggested surgery could significantly alter the degree of the claimant's disability and the deputy commissioner has not yet ruled on whether the claimant's refusal of surgery is reasonable under Section 7(d). Rucker v. Lawrence Mangum & Sons, Inc. , 18 BRBS 74, 76 (1986).

     Under the pre-1984 amended LHWCA, reasonableness of refusal can only be decided by a deputy commissioner; a judge may not make such a finding under Section 7(d). Hike v. Billeting Fund, Robins Air Force Base , 13 BRBS 1059 (1981); Jonson v. C & P Tel. Co. , 13 BRBS 492 (1981); Ogundele v. American Sec. & Trust Bank , 15 BRBS 96 (1980). Accordingly, a judge cannot delegate to the employer the right to suspend compensation, as he himself does not have the power to do so. Murphy v. Honeywell Inc. , 8 BRBS 178 (1978), clarifying Unger v. National Steel & Shipping Co. , 5 BRBS 377 (1977).

     Before remanding a case to the deputy commissioner to make a Section 7(d) finding, however, a judge may make a finding as to the nature of the disability, that is, whether it will be permanent or temporary, if the proposed treatment would only effect the extent thereof. Dionisopoulos v. Pete Pappas & Sons , 14 BRBS 523 (1981), overruling in part Hrycyk v. Bath Iron Works Corp. , 8 BRBS 300 (1978). Cf . Rucker v. Lawrence Mangum & Sons, Inc. , 18 BRBS 74 (1986) (ALJ may not award compensation where surgery could significantly alter the degree of disability and the deputy commissioner has not yet ruled on whether the refusal to undergo surgery was reasonable). The judge may decide the other issues before remanding the claim. Murphy , 8 BRBS at 181-82.

     New Section 7(d)(4), as amended in 1984, allows the judge to make unreasonableness/suspension findings. Dodd v. Newport News Shipbuilding & Dry Dock Co. , 22 BRBS 245 (1989).

     In Mitchell v. Randolph Air Force Base , (BRB No. 99-0380)(Dec. 23, 1999)(Unpublished), the ALJ held, and the Board affirmed under Section 7(d)(4), that it was "unreasonable to expect [the claimant] to maintain a regimen [to lose weight] that she did not embrace prior to her injury." The claimant's treating physician noted that the claimant was "corpulent" at the time of her injury, and she had been unable to lose weight given her background of unsuccessful diet programs.

7.8 IMPARTIAL EXAMINER (IME)

     Under Section 7(e), if medical questions are raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive from the physician a report estimating the claimant's physical impairment and other appropriate information. Any party dissatisfied with the report may request a review or a reexamination of the employee by one or more different physicians employed or chosen by the Secretary, which the Secretary shall order, unless the Secretary finds it clearly unwarranted, and which shall be completed within two weeks from the date ordered, unless the Secretary finds that extraordinary circumstances require a longer period. See 20 C.F.R. §� 702.408, 702.409. See generally Grbic v. Northeast Stevedoring Co. , 13 BRBS 282 (1980).

     The district director may order an examination of the claimant by an independent medical examiner when a medical question exist with regards to the claimant's diagnosis. Augillard v. Pool Co. , 31 BRBS 62, 64 (1997). The Board, hearing the issue of what constituted a medical question for the first time, applied a "plain meaning of the term" analysis to determine what constituted a medical question. They held that a medical question clearly existed whenever the treating physician recommended a claimant consult a second physician regarding some aspect of the claimant's condition or injury. Id .

     The Secretary may charge the cost of examination or review to the employer, if self-insured; to the carrier, if appropriate; or to the Special Fund. See Duty , 4 BRBS at 530; 20 C.F.R. § 702.412(a).