Carroll v. Virginia International Terminals
| Decision Date | 08 January 2018 |
| Docket Number | BRB 17-0368,17-0368A |
| Parties | KERMAN CARROLL Claimant-Petitioner Cross-Respondent v. VIRGINIA INTERNATIONAL TERMINALS and SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED Employer/Carrier-Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Decision and Order Awarding Benefits of Monica Markley, Administrative Law Judge, United States Department of Labor.
Charlene A. Morring (Montagna Klein Camden, L.L.P.), Norfolk Virginia, for claimant.
R John Barrett and Megan B. Caramore (Vandeventer Black L.L.P.), Norfolk, Virginia, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals, and employer cross-appeals, the Decision and Order Awarding Benefits (2016-LHC-00476) of Administrative Law Judge Monica Markley rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates Inc., 380 U.S. 359 (1965).
Claimant injured his left knee on November 16, 2014, during the course of his employment and underwent surgery on January 9, 2015. Employer paid claimant temporary total disability and medical benefits from the date of injury until September 3, 2015, ceasing because claimant refused to attend a functional capacity evaluation (FCE). Employer also asserted that claimant's treatment with Dr. Wardell, commencing in September 2015, was unauthorized.
Following a hearing on the matter, the administrative law judge found that claimant's original treating physician, Dr. Aboka, became unavailable, claimant requested authorization to treat with Dr. Wardell, employer did not act upon that request (and, thus, "refused" the request), and claimant was no longer required to seek authorization for treatment with Dr. Wardell. Therefore, the administrative law judge found that Dr. Wardell became claimant's treating physician. Decision and Order at 20. As Dr. Wardell was claimant's treating physician, it was reasonable for claimant to refuse to attend an FCE ordered by Dr. Aboka's former partner, Dr. Luciano-Perez. Id. at 22. The administrative law judge awarded claimant temporary total disability and medical benefits from September 4 through November 4, 2015. However, as of November 4, 2015, when Dr. Aboka opined that claimant had reached maximum medical improvement, needed no further treatment, and could return to his usual work without restrictions, the administrative law judge denied disability benefits and specific medical treatment prescribed by Dr. Wardell after November 4, 2015. Id. at 26. Claimant appeals, BRB No. 17-0368, and employer cross-appeals, BRB No. 17-0368A, the administrative law judge's Decision and Order. Each responds to the other, urging affirmance on the respective issues.
Employer, on cross-appeal, contends the administrative law judge erred in finding Dr. Wardell to be claimant's treating physician because Dr. Aboka, claimant's first choice of physician, referred claimant to Dr. Luciano-Perez upon Dr. Aboka's departure from the practice, making Dr. Luciano-Perez claimant's treating physician. Ergo, it avers, claimant's refusal to attend the FCE ordered by Dr. Luciano-Perez was unreasonable, and the administrative law judge should have suspended compensation benefits after September 3, 2015. See 33 U.S.C. §907(d)(4). Employer also asserts claimant's subsequent treatment with Dr. Wardell was unauthorized. Claimant responds, asserting that the administrative law judge applied the correct law to conclude that Dr. Wardell is his choice of physician and that his refusal to attend the FCE was not unreasonable.
An employer's liability for medical treatment is governed by Section 7 of the Act, 33 U.S.C. §907. The Act provides that an injured employee is permitted his initial free choice of physician to treat the work injury, 33 U.S.C. §907(b), but that he:
may not change physicians after his initial choice unless the employer, carrier, or [district director] has given prior consent for such change. Such consent shall be given in cases where an employee's initial choice was not of a specialist whose services are necessary for and appropriate to the proper care and treatment of the compensable injury or disease. In all other cases, consent may be given upon a showing of good cause for change.
33 U.S.C. §907(c)(2); 20 C.F.R. §702.406. Thus, if a claimant wishes to change physicians after his initial choice, he must obtain prior written approval from the employer, carrier, or the district director. 33 U.S.C. §907(b), (c); Jackson v. Universal Maritime Services Corp., 31 BRBS 103 (1997) (Brown, J., concurring); Hunt v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 364, aff'd mem., 61 F.3d 900 (4th Cir. 1995); 20 C.F.R. §702.406. However, where a claimant's chosen physician becomes unavailable, the claimant is not required to obtain approval from the employer, the carrier, or the district director before treating with a new physician of his choosing. Good cause for the change is established under these facts, pursuant to Section 7(b) of the Act and 20 C.F.R. §702.406(a). Lynch v. Newport News Shipbuilding & Dry Dock Co., 39 BRBS 29 (2005); Maguire v. Todd Pacific Shipyards Corp., 25 BRBS 299 (1992); see n.4, infra.
In this case, there is no dispute that Dr. Aboka was claimant's choice of treating physician for his November 2014 knee injury - he performed the initial examinations, the surgery, and the follow-up. CX 8; EX 1. In a letter dated August 6, 2015, two weeks after claimant was last seen in his office, Dr. Aboka informed claimant that he was "leaving the practice" as of August 31 and transferring claimant's case to his partner, Dr. Luciano-Perez.[1] EX 1 at 46. In a letter dated August 18, 2015, claimant notified employer that Dr. Aboka "has retired or left the practice" and that he would like authorization to transfer to Dr. Wardell. CX 1. On August 31, 2015, claimant informed the district director that he had attempted to obtain authorization from employer because Dr. Aboka had left his practice, and he wanted to choose Dr. Wardell as his treating physician.[2] CX 2. Because claimant last saw Dr. Aboka on July 24, 2015, prior to his departure from the practice, and the notes from that date are silent as to any discussion regarding Dr. Aboka's leaving his practice, EX 1 at 43-44, the administrative law judge found that Dr. Aboka did not refer claimant to anyone at that time and claimant, contrary to Dr. Aboka's deposition testimony, did not express any desire to stay with the practice or encourage the referral, see EX 2 at 15-16. Decision and Order at 19. Therefore, the administrative law judge found that claimant did not choose to stay with Dr. Luciano-Perez. Id.
Employer also contends that Dr. Aboka's referral requires Dr. Luciano-Perez to become claimant's treating physician. Employer relies on the Board's decision in Maguire, 25 BRBS 299, as support. Therein, the Board stated:
Claimant's initial physician, Dr. Gray, had retired from practice and was no longer available to see claimant, and he had made arrangements for his patients to pass to Dr. Linder through referral. Under these circumstances, we agree with the administrative law judge that claimant was not required to obtain employer's consent to this change of physician. Given that claimant was referred by his authorized physician, Dr. Gray, to Dr. Linder upon the cessation of Dr. Gray's medical practice, the reasonable conclusion is that claimant's initial physician provided the care of another physician whose services were necessary for the proper care and treatment of claimant's compensable injury[.] . . . We conclude that where the authorized physician has retired and referred his patients to a new doctor, that doctor must be considered to be the physician authorized to provide medical treatment.
Maguire, 25 BRBS at 301-302 (internal citations omitted) (emphasis added). The administrative law judge rejected employer's interpretation of this language, finding it too broad. Decision and Order at 17.
In Maguire, the claimant's treating physician retired and referred his patients to another doctor. Without obtaining the employer's authorization, the claimant treated with that physician. The employer refused to pay medical expenses because the claimant did not obtain its authorization. The Board held that such authorization was not needed, as the claimant was permitted to treat with that new, referred, physician once his treating physician became unavailable. Maguire, 25 BRBS at 301-302. The administrative law judge, here, rationally found that employer's reading of Maguire took its holding out of context, i.e., that the claimant is required to treat with the referred physician whether the claimant wishes to treat with him or not. Decision and Order at 17; see Lynch, 39 BRBS 29.
In Lynch, the claimant treated with an orthopedist who closed his private practice. The claimant then chose his family physician as his treating physician, but the employer stated that he should see an orthopedic specialist. At that point, the claimant chose an orthopedist he had seen previously for a different injury, but the employer objected stating he should choose a spine specialist. The Board held that, because the claimant was not seeking to change his treating physician, but, rather, to select a new one because his doctor became unavailable, the claimant was not required to obtain...
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