Maryland Shipbuilding and Drydock Co. v. Jenkins

• Decision Date: 22 March 1979
• Docket Number: No. 77-2321,77-2321
• Citation: 594 F.2d 404
• Parties: MARYLAND SHIPBUILDING AND DRYDOCK COMPANY, Employer and Self-Insurer, Petitioner, v. Daniel L. JENKINS, Claimant, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 404

594 F.2d 404

MARYLAND SHIPBUILDING AND DRYDOCK COMPANY, Employer and Self-Insurer, Petitioner, v.Daniel L. JENKINS, Claimant, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Intervenor.

No. 77-2321.

United States Court of Appeals Fourth Circuit.

Argued Nov. 15, 1978.

Decided March 22, 1979.

Benjamin R. Goertemiller, Towson, Md. (Pamela P. Wassmann, Semmes, Bowen & Semmes, Towson, Md., on brief), for petitioner.

Franklin Freeman, Baltimore, Md., for respondents.

Before WINTER and PHILLIPS, Circuit Judges, and HOFFMAN, ^*Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

This is a petition under § 921(c) of the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C. §§ 901, Et seq.(the Act), for review of a final order of the Benefits Review Board affirming an administrative law judge's (ALJ) award of medical expenses to Daniel L. Jenkins, claimant-respondent, under § 907 of the Act.Maryland Shipbuilding and Drydock Company(employer), the petitioner herein, contends that Jenkins did not comply with § 907 of the Act and therefore is not entitled to the payment of medical expenses.Specifically, the employer contends that Jenkins incurred expenses for medical treatment from private physicians without first requesting the employer to provide medical care or to authorize such treatment, that Jenkins unreasonably refused to submit to a physical examination during this treatment, that there was no evidence that the private physicians were authorized by the Secretary of Labor to render treatment under the Act, and that the physicians failed to submit reports to the Secretary as required by the Act.We find that the Benefits Review Board and the ALJ completely disregarded the statutory requirements of § 907 of the Act and regulations promulgated thereto.Accordingly, we reverse that portion of the Board's order pertaining to the award of medical expenses.

On February 14, 1973, Jenkins, a welder at the Maryland Shipbuilding and Drydock Company, slipped on some ice on the bottom rung of a ladder on board the ORE NEPTUNE, bumping his knee on the ladder.Jenkins reported the injury and was taken to South Baltimore General Hospital, where he was x-rayed, treated, advised to put ice on the knee, and released with an elastic bandage on his knee.After receiving treatment at the hospital, Jenkins did not return to work, nor did he contact his employer to obtain authorization for further medical treatment.Instead Jenkins contacted his lawyer, who referred him to a Dr. Berman.Dr. Berman examined Jenkins on February 19, five days after the injury, and referred him to a physiotherapist, who first treated Jenkins on March 12.Jenkins received nineteen treatments from the physiotherapist between March 12 and April 23.

The employer established that it provided medical treatment for Jenkins on February 14, the day of the injury, at which time there was no reason to believe that further treatment would be necessary.On February 22, the employer wrote to counsel for Jenkins and requested that Jenkins report for a physical examination by Dr. Tan, a company doctor.Jenkins alleged that he had no confidence in Dr. Tan because of Dr. Tan's poor reputation among company personnel.Jenkins failed to keep the February 22 appointment.On March 2, the company again contacted Jenkin's lawyer, by letter, in order to arrange an examination for March 6.It was stated in the letter that if treatment was required, Jenkins would be furnished with the proper authorization.Jenkins did not report for the examination.On April 23, the company sent Jenkins a letter advising him that, if he did not report for work, his employment would be terminated due to his unexcused absences.Jenkins returned to work on April 25 and performed all the regular duties required of him.On April 26 Jenkins was examined by a company doctor, Dr. deGuzman, who reported that Jenkins' use of the knee was normal, and who opined that most of the extended physiotherapy was "entirely unnecessary."

Section 907 of the Act was amended in 1972 to allow employees greater freedom in choosing physicians to administer medical care.A procedure was formulated, however, to insure supervision by the Secretary of Labor.Section 907(b) gives the employee the right to choose an attending physician authorized by the Secretary of Labor to provide care under this chapter.The Secretary is required to actively supervise the medical care rendered injured employees by means of regular reports from the physician.Under § 907(d)¹ an employee is not entitled to recover any amount expended by him for medical services unless he shall have requested the employer to furnish such treatment or to authorize the provision of medical services.The physician must provide the Secretary with a report of the injury and treatment within ten days following the first treatment, although the Secretary may excuse the failure to furnish such report when necessary "in the interest of justice."If at any time the employee unreasonably refuses to submit to an examination by a physician selected by the employer, the Secretary may suspend the payment of further compensation during the period of such refusal.Section 920² of the Act creates a presumption in favor of an employee that his claim comes within the provisions of the Act and that sufficient notice of the claim was given.

The Benefits Review Board has interpreted § 907 in such a manner as to read all meaning out of the statute.The Board held that the § 907(d) requirement of prior request to the employer before seeking outside medical attention applies only when an employee is seeking reimbursement for medical expenses already paid by him.This interpretation borders on the ridiculous.Liability for medical services is incurred when the service is rendered, not when payment is tendered or when a workman's compensation award is made.Although the Act should be interpreted liberally, the plain terms of the statute may not be disregarded.Pillsbury v. United Engineering Co., 342 U.S. 197, 200, 72 S.Ct. 223, 96 L.Ed. 225(1952).When Jenkins declined to request his employer to furnish additional medical services or to authorize such services, he failed to bring himself within the coverage of the Act.Nardella v. Campbell Machine Co., 525 F.2d 46, 50-51(9th Cir.1975).Jenkins' failure to comply with the Act is exacerbated by the fact that he obtained legal advice prior to seeking medical assistance, and therefore has no excuse for failing to obtain authorization from his employer.

Concerning Jenkins' failure to submit to...