Hird v. Bath Iron works Corp.
| Decision Date | 29 September 1995 |
| Docket Number | BRB 90-1720,90-1720A |
| Parties | CHARLES B. HIRD, JR. Claimant-Petitioner Cross-Respondent v. BATH IRON WORKS CORPORATION and COMMERCIAL UNION INSURANCE COMPANY Employer/Carrier-Respondents Cross-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Awarding Benefits of Martin J Dolan, Jr., Administrative Law Judge, United States Department of Labor.
Marcia J. Cleveland (McTeague, Higbee, Libner, MacAdam, Case & Watson), Topsham, Maine, for claimant.
Stephen Hessert and Michelle Jodoin LaFond (Norman, Hanson & DeTroy), Portland, Maine, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals and employer cross-appeals the Decision and Order Awarding Benefits (88-LHC-2349) of Administrative Law Judge Martin J. Dolan, Jr., 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 findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant a maintenance mechanic for employer, was injured on December 28, 1977, while attaching a new dry dock to the pier. Claimant testified that as he was reaching down to pick up a steel I-beam frame, he felt a sharp pain in his low back and legs. He was referred by the yard hospital to Dr. Giustra, who recommended physical therapy and cortisone injections. When this treatment proved ineffective, claimant consulted with Dr. Swengel, a neurologist, who diagnosed an acute lumbosacral strain. In May 1978, Dr. Swengel performed two facet rhizotomies intended to relieve claimant's pain. Although claimant missed several days of work when the rhizotomies were performed, his condition improved after the second procedure, and he was able to return to his job as a maintenance mechanic. Tr. at 32-33. Claimant was treated for minor back problems in November 1979 and October 1981 in employer's first-aid department, which caused him to lose a short time from work. Tr. at 34-35. In 1980, claimant was promoted to the salaried position of leadman.
On March 16, 1982, claimant experienced a sharp pain in his low back and legs and was unable to move after bending over to pick up a small piece of wood at home. His family doctor referred him to Dr. Mehalic, a neurosurgeon, who diagnosed a herniated nucleus pulposus. Dr. Mehalic subsequently performed four surgical procedures in 1982 for excision of the herniated disc and for ensuing complications. Claimant returned to work, but continued to suffer from dull pain in his back and numbness on the inside of both calves and feet. Claimant worked until August 13, 1984, when his pain and numbness became too severe for him to continue and Dr. Mehalic advised claimant not to return to work. Employer voluntarily paid claimant temporary total disability compensation under the Longshore Act from May 20, 1978, until August 15, 1978. Claimant filed a claim for compensation under the Longshore Act on July 14, 1982, and under the Maine Workers' Compensation Act on September 8, 1982. Although claimant was initially awarded benefits under the Maine Act, the award was reversed on appeal on the basis that the claim was untimely.[1] Hird v. Bath Iron Works Corp., 512 A.2d 1035 (Me. 1986). By Order dated September 18, 1989, the Maine Workers' Compensation Commission ordered claimant to repay $36, 000 in state disability compensation, but not $40, 000 in medical benefits, he had received. Claimant has appealed the order to repay the disability benefits.
In a Decision and Order dated May 29, 1990, the administrative law judge initially rejected employer's argument that relitigation of the statute of limitations question is barred pursuant to the doctrines of collateral estoppel and full faith and credit by the Maine Supreme Judicial Court's determination that claimant's claim is untimely. Finding the July 14, 1982, Longshore Act claim timely filed, the administrative law judge awarded claimant additional temporary total disability benefits for various periods and permanent total disability compensation commencing July 17, 1984. He further found that although claimant was not entitled to reimbursement of his past medical expenses because he failed to seek authorization prior to obtaining treatment, he was entitled to future medical benefits. 33 U.S.C. §907. Employer was awarded relief from continuing compensation liability pursuant to Section 8(f), 33 U.S.C. §908(f).
On appeal, claimant challenges the administrative law judge's denial of reimbursement of his past medical expenses, arguing that since employer paid claimant's medical bills under the state act from 1977 until 1985, it is obvious that he requested authorization. In the alternative, claimant contends that because employer refused to provide further medical benefits after the state award was overturned on appeal, he was relieved of the obligation of having to obtain prior authorization from employer for medical care under the Longshore Act. Claimant also contends that the administrative law judge should be instructed on remand to modify his decision to reflect that claimant is subject to a state order requiring him to repay disability compensation, as employer was awarded a credit for the compensation benefits claimant received under the Maine Act. Employer responds, urging that the denial of reimbursement of past medical expenses be affirmed and that the Decision and Order not be modified to reflect the state order to repay, arguing that doing so would be premature, given that the order is currently on appeal.
On cross-appeal, employer reiterates the collateral estoppel and full faith and credit arguments it made below. In the alternative, employer asserts that the administrative law judge erred in finding that the July 14, 1982, claim was timely filed. Claimant responds, urging that the administrative law judge's finding regarding the timeliness of the claim be affirmed.
Claimant initially argues on appeal that the administrative law judge erred in determining that he is not entitled to past medical expenses because he did not seek employer's prior authorization for treatment. Inasmuch as a claim for medical benefits is never time-barred, we need not resolve the collateral estoppel argument raised by employer regarding the timeliness of the claim prior to considering claimant's argument. See Ryan v. Alaska Constructors, Inc., 24 BRBS 65 (1990). Section 7(d), 33 U.S.C. §907(d)(1988), requires that an employee request employer's prior authorization for the medical services performed by any physician, including claimant's initial free choice.[2] See Shahady v. Atlas Tile & Marble Co., 13 BRBS 1007 (1981), rev'd on other grounds, 682 F.2d 968 (D.C. Cir. 1982), cert. denied, 459 U.S. 1146 (1983). If claimant's request for authorization is refused by employer, claimant may still establish entitlement to medical treatment at employer's expense if he establishes that the treatment he subsequently procured on his own initiative was necessary for treatment of the injury. See generally Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).
Claimant avers that the administrative law judge's summary conclusion that the evidence indicates claimant did not request prior authorization for medical treatment under the Longshore Act from either employer or the district director does not comport with the requirements of the Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A), because the administrative law judge failed to explain the basis for his finding. We reject this contention as claimant introduced no documentary or testimonial evidence that a request for authorization was made, and it therefore was not possible for the administrative law judge to make more detailed findings. Claimant also asserts that the administrative law judge's finding ignores the fact that employer paid benefits both voluntarily and pursuant to the state award from 1977 until 1985. Although claimant maintains that since employer paid medical benefits, it is obvious that he had requested treatment, neither employer's voluntary payment of medicals benefits nor its payment of benefits pursuant to the state award mandates a finding, in the absence of affirmative evidence, that claimant requested prior authorization for medical treatment under the Longshore Act.
Claimant alternatively argues that he was released from the obligation of obtaining employer's prior authorization because in 1985, subsequent to the Maine Compensation Commission Appellate Division's decision overturning the state award, employer refused further payment of medical benefits under the state act. As this argument, which was raised below but not addressed by the administrative law judge, requires fact-finding outside the Board's scope of review, we vacate the denial of past medical benefits and remand the case for the administrative law judge to consider this issue de novo.[3] See generally Burns v. Director, OWCP, 41 F.3d 1555, 29 BRBS 28 (CRT) (D.C.Cir. 1994); LaFaille v. Benefits Review Board, 884 F.2d 54, 22 BRBS 108 (CRT) (2d Cir. 1989).
We now direct our attention to employer's contention on cross-appeal that the administrative law judge erred in failing to find that the claim is time-barred under the doctrine of collateral estoppel. Specifically, employer argues that the administrative law judge erred by not according full faith and credit to the ...
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