Jones v. Huntington Ingalls, Inc., BRB 16-0690

CourtCourt of Appeals of Longshore Complaints
Writing for the CourtGREG J. BUZZARD, Administrative Appeals Judge
Decision Date29 July 2021
Docket NumberBRB 16-0690

CLARENCE W. JONES, JR. Claimant-Petitioner



BRB No. 16-0690

Court of Appeals of Longshore

July 29, 2021

Appeal of the Decision and Order and the Order Denying Motion fo r Reconsideration of Lee J. Romero, Jr., Administrative Law Judge, United States Department of Labor.

Isaac H. Soileau, Jr., and Ryan A. Jurkovic (Soileau & Associates, LLC), New Orleans, Louisiana, for Claimant.

Traci Castille (Franke & Salloum, PLLC), Gulfport, Mississippi, for self-insured Employer.

Sarah M. Hurley (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.


Amie Peters (Workers' Injury Law and Advocacy Group), Manchester, New Hampshire, for amicus.

Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges. [1]


GREG J. BUZZARD, Administrative Appeals Judge

Claimant has filed a timely motion for reconsideration of the Benefits Review Board's decision in Jones v. Huntington Ingalls, Inc. (Ingalls Operations), 51 BRBS 29 (2017). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. He contends the Board erred in holding he does not have the statutory right to choose his treating audiologist under Section 7(b) of the Longshore and Harbor Workers' Compensation Act (Act), 33 U.S.C. §907(b). He moves the Board to reverse. The Workers' Injury Law and Advocacy Group (WILAG)[2]and the Director, Office of Workers' Compensation Programs (Director) (collectively, with Claimant, "the moving parties"), respond in support. Employer responds, requesting the Board deny Claimant's motion. Claimant filed a reply brief.

In this claim for benefits for hearing loss, the Board affirmed the administrative la w judge's denial of disability benefits but reversed the denial of medical benefits, holding the parties' stipulations establis h Claimant suffered a work-related hearing loss and Employer accepted liability for medical benefits, including hearing aids. Analogizing audiologists to pharmacists pursuant to Potter v. Elec. Boat Corp., 41 BRBS 69 (2007), it further held claimants do not have a right to choose their own audiologists under 33 U.S.C. §907(b) because "audiologists" are not specifically listed under the regulatory definition of the term


“physician” at Section 702.404, 20 C.F.R. §702.404.[3]

The moving parties argue the 1984 congressional amendment of Section 8(c)(13)(C) of the Longshore Act (Act), 33 U.S.C. §908(c)(13)(C) -- occurring after the agency last amended Section 702.404 of the regulations in 1977 -- supports their contention that the Act treats audiologists as physicians for the purposes of Section 7(b). They further contend the legislative history of that amendment confirms Congress intended to equate audiologists and physicians, and, in practice, claimants have long been given their choice of audiologists to provide medical care for hearing loss, regardless of the fact that the agency did not formally amend Section 702.404. The moving parties thus conclude the Board's interpretation of Section 702.404 as excluding a claimant's initial choice of an attending audiologist for the diagnosis and treatment of hearing loss contradicts the structure of the Act and congressional intent.

We agree and grant Claimant's motion for reconsideration and the relie f requested. 20 C.F.R. §802.409. As a matter of statutory construction, audiologists are appropriately considered "physicians" within the meaning of Section 7(b) as the proper fulfillment of congressional intent. To the extent the regulatory history of Section 702.404 as tied to the administration of a separate workers' compensation program under the Federal Employees' Compensation Act ("FECA") suggests otherwise, as our dissenting colleague suggests, it cannot trump the congressional will expressed in Section 8(c)(13)(C) of the Longshore Act. See, e.g., United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371 (1988) ("A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings


produces a substantive effect that is compatible with the rest of the law.").[4]

I. Statutory and Regulatory Background

A. Choice of physician under the Act

Since the inception of the Act, Section 7(a) has provided, in part, that employers shall furnish "medical, surgical, and other attendance or treatment . . . for such period as the nature of the injury or the process of recovery may require." 33 U.S.C. §907(a). Since 1972, Section 7(b) has provided, in turn, that the "employee shall have the right to choose an attending physician authorized by the Secretary to provide medical care under this chapter as hereinafter provided." 33 U.S.C. §907(b); see also 20 C.F.R. §702.403.[5]

An employee's initial choice of physician plays a vital role in developing a claim with lasting implications for the treatment of his work injury. Once the "initial, free choice of attending physician" is selected, a claimant "may not thereafter change physicians without the prior written consent of the employer . . . or the district director" unless the "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."


20 C.F.R. §702.406(a)[6]

Physician choice in the worker's compensation arena "balance[s] two desirable values." 8 Lex K. Larson and Thomas A. Robinson, Larson's Workers' Compensation Law §94.02[2] (2018). The first involves "allowing an employee, as far as possible, to choose his or her own doctor" stemming from "the confidential nature of the doctor-patient relationship" and the "desirability of the patient's trusting the doctor." Id. The second value involves "achieving the maximum standards of rehabilitation by permitting the compensation system to exercise continuous control of the nature and quality of medical services from the time of injury." Id.

Prior to 1972, the Act required an injured employee to select a physician from a panel chosen by hi s employer. 33 U.S.C. §907(b) (1970); Act of Sept. 13, 1960, Pub. L. No. 86-757, 74 Stat. 900. The 1972 Amendment, however, permitted the injured worker to choose from a list of physicians authorized by the Department of Labor (Department). Congress made the change to keep "in line with modern practice" at the "recommendation of the National Commission [on State Workmen's Compensation Laws]." S. Rep. No. 92-1125 (92d Cong.), Sept. 13, 1972. Modern practice moved towards expanding patient choice to emphasize confidentiality and trust and away from employer control. The National Commission therefore recommended "the worker be permitted the initial choice of physician, either from among all licensed physicians in the State, or from a panel of physicians selected or approved by the workman's compensation agency." John F. Burton, Jr., Workers' Compensation Resources, 1972 Report of the National Commission on State Workmen's Compensation Laws, Ch. 4, (last viewed July 23, 2021). Congress implemented the recommendation in amending Section 7(b). 33 U.S.C. §907(b).[7]


B. Definition of physician under the Act and regulations

The Act does not define "attending physician" for the purposes of 33 U.S.C. §907(b). Nor does it define the term "physician" in any of the thirty-three other instances the term is used in four sections of the Act. See 33 U.S.C. §§907, 908(c)(13)(C), 919, 928. But Section 702.404 of the regulations, 20 C.F.R. §702.404, does define physician, broadly.

Originally promulgated in 1938 and administered by the United States Employees' Compensation Commission, one regulatory definition covered the term for both the FECA and the Longshore Act and its extension acts. 20 C.F.R. Ch. 1, Subch. A, Part 2, §2.1(b) (1938). The Department transferred administration of the Longshore Act and the FECA to the Office of Workers' Compensation Programs (OWCP) in 1974. OWCP, for a time, continued to model the Longshore Act's regulatory definition of physician on the FECA definition. Last revised in 1977 to incorporate changes to the FECA definition, the relevant part of the current Longshore regulation states:

The term physician includes doctors of medicine (MD), surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. . . . Naturopaths, faith healers, and other practitioners of the healing arts which are not listed herein are not included within the term "physician" as used in this part.

20 C.F.R. §702.404.[8]

After the agency last amended Section 702.404, however, Congress amended the Longshore Act, equating certified audiologists with physicians for the diagnosis and treatment of hearing loss. 33 U.S.C. §908(c)(13)(C); see 20 CFR §702.401(a). As originally enacted in 1927, Section 8(c)(13) of the Act read "Loss of hearing: Compensation for loss of hearing of one ear, fifty-two weeks. Compensation for loss of hearing of both ears, two hundred weeks." 33 U.S.C. §908(c)(13) (Suppl. 7 1925); 69 P.L. 803, 44 Stat. 1424, 69 Cong. Ch. 509. In 1984, however, Congress amended the section to


grant special status to audiograms performed by certified audiologists and otolaryngologists. Amended Section 8(c)(13)(C) accords audiograms presumptive evidentiary weight regarding the amount of hearing loss sustained if: 1) they are "administered by a licensed or certified...

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