Davis v. George Hyman Construction Co.

• Decision Date: 17 November 2003
• Docket Number: BRB 03-0210
• Parties: EARL C. DAVIS Claimant-Petitioner v. GEORGE HYMAN CONSTRUCTION COMPANY and LIBERTY MUTUAL INSURANCE COMPANY Employer/Carrier- Respondents
• Court: Longshore Complaints Court of Appeals

EARL C. DAVIS Claimant-Petitioner v. GEORGE HYMAN CONSTRUCTION COMPANY and BRB No. 03-0210

November 17, 2003

UNPUBLISHED OPINION

Appeal of the Decision and Order of Richard T. Stansell-Gamm Administrative Law Judge, United States Department of Labor.

Earl C. Davis, Clinton, Maryland, pro se.

James W. Greene and Matthew W. Carlson (Thompson, O'Donnell Markham, Norton & Hannon), Washington, D.C., for employer/carrier.

Before: SMITH, HALL and GABAUER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Claimant without the assistance of counsel, appeals the Decision and Order (2002-DCW-2) of Administrative Law Judge Richard T. Stansell-Gamm 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. (1982), as extended by the District of Columbia Workmen's Compensation Act, 36 D.C. Code §§501, 502 (1973) (the Act). In an appeal by a claimant without representation by counsel, the Board will review the administrative law judge's findings of fact and conclusions of law to determine if they are rational, supported by substantial evidence, and in accordance with law. If they are, they must be affirmed. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3); 20 C.F.R. §§802.211(e), 802.220.

On August 11, 1965, while working as a journeyman carpenter for employer, claimant sustained serious injuries to his legs and pelvis when the floor being constructed above him collapsed and he was buried by construction debris. In the years since claimant's injury, employer's carrier (Liberty Mutual) has paid claimant permanent total disability compensation pursuant to 33 U.S.C. §908(a), and has provided medical benefits pursuant to 33 U.S.C. §907, for medical costs arising as a result of claimant's work-related injury. The appeal presently before the Board involves disputes between claimant and Liberty Mutual over employer's liability for various medical expenses. The proceedings before the district director and the administrative law judge regarding these disputes were both protracted and complicated. The procedural history is set out in the administrative law judge's Decision and Order, and thus we need not relate in detail the proceedings before the district director and the administrative law judge that preceded this appeal. We must briefly address, however, the role that the United States District Court for the District of Columbia (District Court) has assumed in the enforcement of claimant's entitlement to Section 7 medical benefits. Due to repeated difficulties in obtaining payment or reimbursement for his ongoing medical care, claimant filed an action against Liberty Mutual, and in an Order issued on August 24, 1982, the District Court established procedures for claimant to obtain payment of his medical expenses by Liberty Mutual. By Order dated March 15, 2001, the District Court modified the provisions of its original Order. Specifically, the modified Order directed Liberty Mutual to separately itemize each medical condition, procedure, therapy, or medication requested by claimant with the corresponding amounts claimed and reimbursed. If a particular medical expense was to be rejected, Liberty Mutual was required to provide a legally sufficient reason for the rejection; where a medical expense was rejected, the district director was to attempt to resolve the dispute. ^[1]

The issues now before the Board are those addressed in the administrative law judge's Decision and Order dated October 21, 2002. ^[2] In that decision, the administrative law judge first dismissed claimant's claim for payment in full of the cost of medical treatment provided by Dr. Snow. Next, the administrative law judge declined to adjudicate the issue of the bill for claimant's treatment at Sibley Hospital in light of Liberty Mutual's attorney's representation that a settlement of that bill had been reached between Liberty Mutual and the hospital. The administrative law judge next approved claimant's request for reimbursement in full for prescription drugs, over-the-counter medication, mileage, and parking expenses. The administrative law judge denied claimant's request for an additional reimbursement for the cost of replacement exercise equipment above the amount previously paid by Liberty Mutual. Lastly, the administrative law judge denied claimant's request for authorization for the purchase of a powered wheelchair and van lift. ^[3]

On appeal, claimant, representing himself, challenges the administrative law judge's refusal to hold employer liable for the various medical charges submitted for reimbursement or authorization by claimant. ^[4] Employer responds, urging affirmance of the administrative law judge's decision in its entirety.

Pursuant to Section 7 of the Act, 33 U.S.C. '907, employer is liable for medical expenses for the reasonable and necessary treatment of a claimant's work-related injury. ^[5] The claimant has the burden of establishing the elements of a claim for medical benefits. See Schoen v. United States Chamber of Commerce, 30 BRBS 112 (1996). In order for a medical expense to be assessed against employer, the expense must be both reasonable and necessary, and must be related to the injury at hand. See Pardee v. Army & Air Force Exch. Service, 13 BRBS 1130 (1981); 20 C.F.R §§701.401(a), 702.402.

In the instant case, the administrative law judge considered a number of disputed medical expenses, which we will separately address. The administrative law judge first considered claimant's request that employer make full payment of the medical bills for treatment provided by Dr. Snow. ^[6] Prior to the March 7, 2002, hearing in this case, the administrative law judge remanded to the district director the issue regarding Dr. Snow's medical bills, for an investigation of whether Dr. Snow's fees exceed the prevailing community charge or Dr. Snow's customary charge. Decision and Order at 6-8; Remand Order issued October 19, 2001. This issue was remanded because the district director had not exercised his supervisory authority to determine whether the charges made by Dr. Snow exceeded those permitted under the Act. ^[7] 33 U.S.C. §907(b), (g); 20 C.F.R. §702.407(b). The applicable regulations establish a framework for resolving disputes regarding the reasonableness of the amount charged by the medical providers. Specifically, Section 702.414, 20 C.F.R. §702.414, states that the district director "may, upon written complaint of an interested party... investigate any fee for medical treatment... that appears to exceed prevailing community charges...." ^[8] The district director then makes specific findings on whether the fee exceeds the prevailing community charges and provides notice of his or her findings to the interested parties. 20 C.F.R. §702.414(c). If a party disputes this finding or the proposed action, it has a right to request an administrative hearing before an administrative law judge pursuant to 5 U.S.C. §556. 20 C.F.R. §§702.415, 702.416, 702.417; see Newport News Shipbuilding & Dry Dock Co. v. Loxley, 934 F.2d 511, 24 BRBS 175(CRT)(4^th Cir. 1991), cert. denied, 504 U.S. 910 (1992). Following the administrative law judge's remand of this issue, however, the district director expressly declined to conduct an investigation of the reasonableness of Dr. Snow's charges. See Recommendation of Claims Examiner Lisa Baxter dated November 1, 2001. ^[9] At the formal hearing before the administrative law judge which was subsequently held on March 7, 2002, neither Dr. Snow nor a representative of the district director was present, nor was evidence presented on the issue of whether Dr. Snow's fee exceeds the prevailing community charge.

In his October 21, 2002 Decision and Order, the administrative law judge found that claimant, as an interested party, was entitled to seek a hearing on the issue of whether Dr. Snow's fees exceed the prevailing community charges. See Decision and Order at 7; Hearing Tr. at 31; 20 C.F.R. §702.415. The administrative law judge further found, however, that pursuant to 20 C.F.R. §702.416, the two necessary parties for a hearing on this issue are the affected physician and the district director, and that neither of these parties appeared at the hearing conducted in this case. The administrative law judge concluded that because the necessary parties were not present at the March 7, 2000 hearing and because the record lacks any evidence regarding the issue of whether Dr. Snow's bills exceed the prevailing community charge, claimant's request that Dr. Snow's bill be paid in full must be dismissed. Decision and Order at 8.

We affirm the administrative law judge's refusal to address claimant's request for full payment of the balance of Dr Snow's bill, on the facts of this case. As the administrative law judge correctly stated, neither Dr. Snow nor the district director, the two necessary parties, appeared at the hearing. See 20 C.F.R. §702.416; Loxley, 934 F.2d at 516-517, 24 BRBS at 184-186(CRT). Moreover, no evidence was adduced which could serve as a basis for a decision by the administrative law judge as to whether Dr. Snow's fees exceed the prevailing community charges. See 20 C.F.R. §§702.413, 702.414. The administrative law judge correctly recognized that the only court to have addressed this issue has held that the employer challenging the fee charged by the medical provider does not bear the burden of demonstrating that the requested fee exceeds the prevailing community charge. See Loxley, 934 F.2d at 517, 24 BRBS at 186(CRT). Because the record before the administrative law judge provided no basis for him to render a determination as to whether Dr. Snow's charges exceed the...