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                                    BRB No. 00-0537
                                         
JAMES ARNOLD, JR.                       )
                                        )
          Claimant-Petitioner           )
                                        )
                                        )
                                        )
NABORS OFFSHORE DRILLING,               )    DATE ISSUED:   02/15/2001
                                             
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER


     Appeal of the Decision and Order Denying Benefits of Clement J.
     Kennington, Administrative Law Judge, United States Department of Labor. 
     
     Tony B. Jobe, Madisonville, Louisiana, for claimant.

     Thomas J. Smith and J. Geoffrey Ormsby (Galloway, Johnson, Tompkins,
     Burr & Smith), New Orleans, Louisiana, for self-insured employer.

     Before: SMITH and McATEER, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits (99-LHC-819) of
Administrative Law Judge Clement J. Kennington 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 if they 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, who worked for employer as a roustabout on an offshore oil rig,
injured his back on September 8, 1997, while attempting to lift a stabilizer off
of the rig floor.  He continued to work until September 11, 1997, when his seven-day shift ended, and returned to offshore duty on September 19, 1997, but ceased
working due to pain on either September 20 or 21, 1997.  Dr. Duval diagnosed
claimant as suffering from a lumbar strain, and placed him on light duty with a 35
pound lifting restriction.  Claimant went on light duty in employer's Transitional
Education Program (TEP) from October 6, 1997, through October 27, 1997.  On October
27, 1997, employer offered claimant a job as a motorman, which was allegedly within
claimant's physical limitations.  When claimant failed to report for duty on
October 31, 1997, employer terminated him.  Claimant has not worked since that time
due to his back pain, and filed a claim under the Act for permanent total
disability compensation.

     Subsequent to the hearing in this matter, claimant filed with the
administrative law judge a Motion to Seal the Record and Expunge the Record of
Illegally Disclosed Evidence and Testimony, contending that claimant's medical
records pertaining to his drug and alcohol treatment were obtained in violation of
Section 290dd-2 of the Public Health Service Act, 42 U.S.C. §290dd-2; 42
C.F.R. Part 2.  Claimant requested that the administrative law judge seal the
record, expunge from the record all references to information concerning claimant's
drug and alcohol treatment at Pauline Faulk Center for Behavioral Health and other
unspecified mental health facilities, and determine whether a violation of this law
had occurred, and if so, refer the matter to the United States Attorney's office
for review.  Specifically, claimant alleged that although he signed general consent
forms allowing the release of his mental health records during the course of
discovery, these waivers did not meet the requirements under 42 C.F.R. §2.31,
and were therefore deficient.  Claimant also filed a Motion in Limine to exclude
from the record all evidence relating to his pre-existing bipolar disorder.  In his
Decision and Order, the administrative law judge, without deciding the merits of
claimant's motions, determined that all information related to claimant's mental
health was not relevant to the claim, and that his decision would be based solely
on claimant's alleged physical condition.  The administrative law judge noted that
claimant may refer employer's alleged misconduct to the United States Attorney's
office for further action.  
     With regard to the merits of claimant's claim under the Act, the
administrative law judge found that claimant suffered a back strain as a result of
the September 8, 1997, accident, and was therefore entitled to invocation of the
presumption at Section 20(a) of the Act, 33 U.S.C. §920(a); he further found
that employer failed to establish rebuttal of the presumption.  The administrative
law judge next determined that claimant reached maximum medical improvement on
October 22, 1997, and that any further back problems claimant has are a result of
a fight claimant was involved in on February 22, 1998, and not the September 8,
1997, work injury.  As claimant was placed on physical restrictions by Drs. Duval
and Cenac, the administrative law judge determined that claimant established a
prima facie case of temporary total disability, but that employer
established suitable alternate employment by virtue of its light duty program, its
offer of a motorman position, and the labor market survey of its vocational
counselor Dr. Stokes.  Accordingly, the administrative law judge determined that
employer is not liable for continuing temporary total disability compensation under
the Act.  33 U.S.C. §908(b).  Lastly, the administrative law judge found that
employer was not required to consent to the treatment by Dr. Raffai, and that
employer is not liable for any treatment by Dr. Raffai, as claimant's current back
condition is unrelated to his work-related injury. 

     On appeal, claimant contends that the administrative law judge committed
reversible error by refusing to rule on his Motion to Seal the Record and Expunge,
by condoning the violation of 42 U.S.C. §290dd-2 and allowing claimant's drug
and alcohol treatment records into the record, and by refusing to rule on
claimant's Motion in Limine to exclude records relating to claimant's pre-existing
bipolar disorder, which claimant alleges was obtained in violation of the Americans
With Disabilities Act (ADA).  For these reasons, claimant requests that the case
be remanded for reconsideration and assigned to a different administrative law
judge.  With regard to the merits, claimant contends that the administrative law
judge erred in finding that employer is not liable for continuing disability
compensation; specifically, claimant asserts that the administrative law judge
erred in finding that his current back condition is the result of an intervening
cause.  Claimant further avers that the administrative law judge erred in finding
that employer is not liable for the treatment provided by Dr. Raffai.  Employer
responds, urging affirmance of the administrative law judge's decision.  Claimant
submitted a reply brief, wherein he reiterates his contentions that the
administrative law judge committed error by allowing evidence into the record in
violation of 42 U.S.C. §290dd-2, and that the administrative law judge's
denial of benefits is not supported by substantial evidence.

     As a threshold matter, we first address claimant's contentions regarding the
administrative law judge's allowance of references to claimant's drug and alcohol
treatment into the record.  Pursuant to 20 C.F.R. §702.338, an administrative
law judge has a duty to inquire fully into the matters at issue and receive in
evidence any documents or testimony relevant to such matter.  An administrative law
judge is not bound by the formal rules of evidence. See 33 U.S.C.
§923(a); 20 C.F.R. §702.339; Powell v. Nacirema Operating Co., 19
BRBS 124 (1986).  Moreover, it is well-established that an administrative law judge
has great discretion concerning the admission of evidence and any decisions
regarding the admission or exclusion of evidence are reversible only if arbitrary,
capricious, or an abuse of discretion. See Ezell v. Direct Labor, Inc., 33
BRBS 19 (1999).  However, the admission of records which are federally protected
by a confidentiality privilege may constitute an abuse of discretion. See Cybok
v. Niagra Machine & Tool Works, 1990 WL 182126 (E.D.Pa. 1990).      

     With regard to Section 290dd-2, claimant's argument contains two elements. 
First, claimant asserts that the administrative law judge erred by not holding a
hearing to determine whether employer had violated 42 U.S.C. §290dd-2 and 42
C.F.R. Part 2, with regard to records concerning claimant's drug and alcohol
treatment.  Had the administrative law judge made such a determination, claimant
argues that the administrative law judge would have been required to refer the
matter to the United States Attorney.  The refusal to hold a hearing, claimant
contends, is itself a violation of Section 290dd-2.  Second, claimant asserts that
the administrative law judge erred by not expunging information regarding his drug
and alcohol treatment from the record.  We address each contention in turn.

     By way of background, the Drug Abuse Office and Treatment Act of 1972 was enacted to coordinate federal drug
abuse prevention efforts.  Essential to that endeavor was the confidentiality of medical records in conjunction with substance
abuse treatment programs. See H.R. Rep. Nos. 92-775, 920, 92nd Cong., 2d Sess. (1972), reprinted in 1972
U.S.C.C.A.N. 2045, 2062, 2072.  Without guarantees of confidentiality, many individuals with substance abuse problems
may be reluctant to participate in the programs. See Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d 1005, 1010
(1st Cir. 1987).  In 1992, the provisions were recodified into the present Section 290dd-2, which provides: 

     Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection
     with the performance of any program or activity relating to substance abuse education, prevention, training,
     treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any
     department or agency of the United States shall . . . be confidential . . . .

42 U.S.C. §290dd-2(a).  Section 290dd-2(b) provides that these records may be disclosed "in accordance with the
prior written consent of the patient."  42 U.S.C. §290dd-2(b).  Pursuant to 42 C.F.R. §2.31, a written consent
must contain (1) the specific name of the program permitted to make the disclosure, (2) the name or title of the person or
organization to which disclosure is made, (3) the name of the patient, (4) the purpose of the disclosure, (5) how much and
what kind of information is to be disclosed, (6) the signature of the patient, (7) the date on which consent is signed, (8) a
statement that the consent is subject to revocation at any time, and (9) the date, event, or condition upon which the consent
will expire if not revoked before.  Section 290dd-2(f) establishes a criminal penalty applicable to "[a]ny person who violates
any provision of this section or any regulation issued pursuant to this section."  42 U.S.C. §290dd-2(f).

     In the instant case, employer, during the course of discovery, sought information regarding claimant's mental health,
including information with respect to claimant's drug and alcohol treatment.  Towards this end, employer requested that
claimant sign consent forms in order to disclose records from various medical facilities.  Claimant did not seek a protective
order and signed these consent forms.  In particular, claimant signed a consent 
form with regard to the disclosure of records from the Pauline Faulk Center for Behavioral Health/American Legion
Hospital.  While several documents were disclosed during the course of discovery, only portions of claimant's records from
the Pauline Faulk Center were submitted into the formal record. See Emp. Ex. 19.  Claimant contends that 42
U.S.C. §290dd-2(b) and 42 C.F.R. §2.31 were violated as the consent forms claimant signed were deficient
under the regulations, and asserts that the administrative law judge erred by not holding a separate hearing to make this
determination.[1]   We reject claimant's assertion, and hold that the administrative
law judge does not have the authority to hold such a hearing.  The Act vests jurisdiction in an administrative law judge over
"a claim of compensation."  33 U.S.C. §919(a), (d).  An administrative law judge has "full power and authority to
hear and determine all questions in respect of such a claim." Id.; see generally Equitable Equipment Co. v.
Director, OWCP, 191 F.3d 630, 33 BRBS 167 (CRT)(5th Cir. 1999), aff'g 32 BRBS 200 (1998).    In the
instant case, a hearing to determine whether 42 U.S.C. §290dd-2(b) and 42
C.F.R. §2.31 were violated does not concern "a claim of compensation" under
Section 19(a) of the Act, 33 U.S.C. §919(a).  Moreover, federal courts have
held that Section 290dd-2 does not provide for a private right of action for
violations of the confidentiality provisions, but rather, this law is a criminal
statute to be enforced by the United States Attorney, guided by the statute and
corresponding regulations.  See Ellison v. Cocke County, Tenn., 63 F.3d 467,
470-471 (6th Cir. 1995); Kathleen "S" v. Ochsner Clinic, 1997 WL 786229
(E.D. La. 1997).  Thus, the jurisdiction for the investigation and prosecution of
alleged violations of this statute is solely within the province of the United
States Attorney, not the administrative law judge herein.[2]   Accordingly, we hold that the administrative law judge did not commit
error by not holding a hearing to determine whether Section 290dd-2 and the
corresponding regulations were violated. 

     The next issue regarding Section 290dd-2 is whether the administrative law
judge committed reversible error by not expunging from the record any references
to claimant's drug and alcohol treatment.  We hold that any error the
administrative law judge may have committed in this regard is harmless in light of
his decision not to consider any reference to claimant's drug and alcohol treatment
in his consideration of the merits of the case.  As an initial matter, as stated
above, only portions of the Pauline Faulk Center records were submitted into the
formal record.  At the hearing, claimant did not object to this evidence being
admitted into the record. See Tr. at 324-325.  In fact, claimant's counsel,
on direct examination, questioned claimant about his admittance to the Pauline
Faulk Center, id. at 174, and specifically asked claimant questions about
his alcohol abuse. Id. at 202.  Where claimant voluntarily discloses
information regarding his substance abuse treatment, Section 290dd-2 does not bar
the use of such records. See Dresser v. The Ohio Hempery, Inc., 1999 WL
1063068 (E.D.La. 1999).  Moreover, at the hearing, the administrative law judge
specifically inquired whether any psychological disability was being asserted by
claimant, with claimant's counsel responding in the negative. See Tr. at 61-63.  Thus, in his decision, the administrative law judge specified that any
information regarding claimant's mental health was irrelevant, and that his
decision would be based solely on the medical evidence concerning claimant's
physical condition. See Decision and Order at 2-3.  In fact, the
administrative law judge made no reference to these records in his discussion and
analysis of the merits of the case.  Therefore, assuming the administrative law
judge committed error by not expunging from the record claimant's drug and alcohol
treatment records from the record, such error did not cause claimant to be
prejudiced in the disposition of the claim herein.  Stated another way, the
administrative law judge's decision on the merits in this case would have been no
different had he formally expunged these records. 

     Similarly, we hold that claimant's contention that the administrative law
judge committed reversible error by not expunging all references to his bipolar
condition must fail.  Claimant asserts that information about his bipolar condition
was obtained in violation of the ADA, which forbids employers from using medical
information to pre-screen job applicants.  See 42 U.S.C.
§12112(d)(2)(A).  In support of its argument, claimant points to his testimony
that he was required to have a physical examination prior to being offered
employment by employer. See Tr. at 171.  However, this examination concerned
only claimant's physical condition, and claimant conceded that nothing was ever
asked about his psychological condition prior to his being offered employment by
employer. Id. at 172.  Thus, it is questionable whether a violation of the
ADA in fact occurred.  In any event, we reject claimant's contention of reversible
error as the administrative law judge did not consider any of the evidence with
regard to claimant's psychological condition in deciding the instant case.[3]   Based on the foregoing, we reject claimant's
contentions that the administrative law judge committed reversible error by not
expunging references to claimant's drug and alcohol treatment and mental health,
and hold that claimant has not met his burden in establishing that the
administrative law judge's actions were arbitrary, capricious or an abuse of
discretion. See, e.g., Ezell, 33 BRBS at 29; Picinich v. Seattle
Stevedore Co., 19 BRBS 63 (1986).  

     We now consider the merits of the instant case.  On appeal, claimant
challenges the administrative law judge's finding that he is not totally disabled
as a result of the September 8, 1997, work accident.  Specifically, claimant
contends that the administrative law judge erred in relying on the opinion of Dr.
Cenac, and asks the Board to reverse the administrative law judge's weighing of the
evidence. We decline to do so.

     Claimant has the burden of establishing the nature and extent of his
disability. Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1980). 
If claimant establishes that he is incapable of resuming his usual employment
duties with employer, claimant has established a prima facie case of total
disability; the burden thus shifts to employer to establish the availability of
suitable alternate employment which claimant, by virtue of his age, background and
physical restrictions, is capable of performing. New Orleans (Gulfwide)
Stevedores, Inc. v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  If
employer makes such a showing, claimant nevertheless can prevail in his quest to
establish total disability if  he demonstrates that he diligently tried and was
unable to secure such employment. See Palombo v. Director, OWCP, 937 F.2d
70, 25 BRBS 1 (CRT)(2d Cir. 1991); Roger's Terminal & Shipping Corp. v.
Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT)(5th Cir.), cert. denied,
479 U.S. 826 (1986).

     In the instant case, the administrative law judge credited the opinions of
Drs. Duval and Cenac and found that claimant reached maximum medical improvement
by October 22, 1997, and that any further back problems are attributable to the
fight he was involved in on February 22, 1998, or his degenerative conditions.  Dr.
Duval, who first examined claimant on September 30, 1997, found that his
neurological tests were normal and diagnosed a lumbar strain, recommending light
duty work with a 35-pound lifting restriction. See Emp. Ex. 2.  Dr. Cenac,
an orthopedic surgeon, examined claimant on October 22, 1997, and found that
claimant demonstrated a normal neurological exam, with some pre-existing sclerosis
of the lumbosacral facets at L5-S1, which accounted for the "popping" sounds
claimant was experiencing.  Dr. Cenac diagnosed a soft tissue injury to the spine,
stated that claimant was at maximum medical improvement,  and recommended a 50-pound lifting restriction. See Emp. Ex. 1.  In his December 9, 1997, report,
Dr. Duval agreed with Dr. Cenac's lifting restriction. See Emp. Ex. 2. 
Although Dr. Cenac believed that claimant was magnifying his problems, and did not
believe claimant required an MRI, he ordered one due to claimant's subjective
complaints, and in his January 26, 1998, report, stated that this exam was normal
and that claimant was not in need of any further orthopedic evaluation. See
Emp. Ex. 1.  The administrative law judge accepted the opinions of Drs. Duval and
Cenac based on their qualifications as board-certified orthopedists.  By contrast,
the administrative law judge rejected the opinions of Dr. LaHaye, who opined that
claimant has a 50 percent disability due to lower back pain, see Emp. Ex.
4, and Dr. Raffai, who opined in 1999 that claimant suffered from degenerative disc
disease and disc bulge at L4-5 and was not capable of working, see Cl. Ex.
9A at 64-68; Cl. Ex. 9B, as neither physician is a board-certified orthopedist in
the United States and Drs. Duval and Cenac have many more years of experience.
See Decision and Order at 23.  Additionally, the administrative law judge
discredited claimant's complaints of pain, finding that his testimony contained
inconsistencies and falsehoods with respect to the true nature of his physical
condition, especially noting claimant's failure to inform Dr. Raffai that he was
severely beaten on February 22, 1998, and his failure to follow Dr. Raffai's
recommended course of treatment of steroid injections and physical therapy despite
having medical coverage for these treatments through Medicare and Medicaid. See
Id.  at 21. 

     In adjudicating a claim, it is well-established that an administrative law
judge is entitled to evaluate the credibility of all witnesses, and is not bound
to accept the opinion or theory of any particular medical examiner; rather, the
administrative law judge may draw his own inferences and conclusions from the
evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 373 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961).  Accordingly, we hold that the
administrative law judge acted within his discretion in crediting the opinions of
Drs. Duval and Cenac over the contrary opinions of Drs. LaHaye and Raffai, and
affirm the administrative law judge's determination that claimant is capable of
light duty work with a 50-pound lifting restriction.

     Claimant next asserts that the administrative law judge erred in finding that
claimant's back problems are the result of either an intervening cause, the
February 1998 fight, or his pre-existing back condition.  Although claimant makes
this argument in the context of Section 20(a), the administrative law judge, in his
decision, made this determination in examining the extent of claimant's disability. 
Under either analysis, an employer is liable for a claimant's entire disability if
a second injury is the natural and unavoidable result of the first injury.  Where,
however, the second injury is the result of an intervening cause, employer is
relieved of liability for that portion of disability attributable to the second
injury.[4]   Bass v. Broadway Maintenance,
28 BRBS 11 (1994).  In the instant case, the administrative law judge discredited
claimant's current complaints of pain, and assuming the complaints were true,
rejected the assertion that the September 8, 1997, injury was the cause of his
pain, based on the opinions of Drs. Duval and Cenac that claimant suffered a back
strain as a result of the work-related injury which did not affect his pre-existing
condition. See Emp. Ex. 1-2; Decision and Order at 21-23.  The
administrative law judge questioned the view of Dr. Raffai that claimant's disc
condition was a result of the September 8, 1997, work accident, as claimant failed
to notify the physician that he was involved in a fight with three men on February
22, 1998, in which he was severely kicked and beaten. See Cl. Ex. 9A at 63-64; Decision and Order at 12.  At his deposition, Dr. Raffai still attributed
claimant's disc bulge to the work-injury, but the administrative law judge noted
Dr. Raffai's testimony that wrestling was a viable cause of a bulging disc.
See Cl. Ex. 9A at 35-36.  Thus, the administrative law judge determined that
claimant's work-related back condition had resolved by October 22, 1997, the date
upon which Dr. Cenac placed claimant on a permanent lifting restriction, and
rejected Dr. Raffai's opinion that claimant's condition thereafter worsened due to
his September 1997 work accident, and that claimant is not capable of work until
his treatment plan is followed. See Decision and Order at 13, 23-24.  As we
decline to disturb the administrative law judge's weighing of the evidence in this
regard, see Calbeck, 306 F.2d 693; Hughes, 289 F.2d 403, we affirm the administrative law
judge's finding that claimant's work-related back condition resolved on October 22, 1997. 

     Having accepted the 50-pound lifting restriction imposed by Dr. Cenac, the administrative law judge found that this
restriction limited claimant to a less strenuous position than his usual employment with employer.  Thus, the administrative
law judge determined that claimant established a prima facie case of total disability.  The administrative law judge
then concluded that employer established the availability of suitable alternate employment on the basis of its light duty
position, its job offer of a motorman position, and jobs identified by its vocational counselor Dr. Larry Stokes.  Claimant
challenges this determination, contending that the administrative law judge erred in relying on the limitations imposed on
claimant by Dr. Cenac rather than those of  Dr. Raffai, and that Dr. Stokes' job market survey is insufficient to establish
the availability of suitable alternate employment as Dr. Stokes did not accurately assess claimant's employability.    

     In the instant case, claimant worked in employer's TEP performing light duty work from October 6, 1997 through
October 27, 1997; during this time, he was paid his full wage.  Sue Duplantis, employer's claims manager, testified that
claimant was offered a permanent position as a motorman trainee to commence on October 31, 1997, which was within the
physical limitations imposed by Dr. Cenac, was a necessary position, and paid a higher wage than claimant's usual
employment. See Tr. at 289-290, 293.  Claimant, however, did not report for duty and was terminated thereafter. 
The administrative law judge accepted the testimony of Ms. Duplantis in this regard and specifically rejected claimant's
testimony of subjective complaints of pain based on the objective medical evidence and the opinions by Drs. Duval and
Cenac, and therefore rejected Dr. Raffai's opinion that claimant was not capable of working, as this opinion was based on
claimant's discredited complaints of pain.  See Decision and Order at 19-20, 25-26.   

     It is well-established that employer can meet its burden of establishing the availability of suitable alternate
employment by offering claimant a job in its facility, including a light duty job. Darby v. Ingalls Shipbuilding, Inc.,
99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996).  The Board has held that suitable alternate employment is established
where employer offers claimant a job tailored to his specific restrictions so long as the work is necessary. Larsen v.
Golten Marine Co., 19 BRBS 54 (1986); Darden v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS
224 (1986).  As the administrative law judge rationally credited the testimony of Ms. Duplantis and the opinions of Drs.
Duval and Cenac, see Calbeck, 306 F.2d 693; Hughes, 289 F.2d 403, and acted within his discretion in
discrediting claimant's complaints of pain, see Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744
(9th Cir. 1978), cert. denied, 470 U.S. 911 (1979), we affirm the administrative law judge's finding that employer
established suitable alternate employment at the same or greater wages than claimant earned before the injury by virtue of
its motorman trainee position as supported by substantial evidence.[5]   See, e.g.,
Ezell, 33 BRBS at 25; Buckland v. Dep't of the Army/NAF/CPO, 32 BRBS 99 (1997).  Accordingly, we affirm
the administrative law judge's ultimate denial of total disability compensation.[6] 
   

     Lastly, claimant challenges the administrative law judge's determination that employer is not liable for the treatment
performed by Dr. Raffai.  Specifically, claimant contends that the administrative law judge erred in finding that claimant
did not seek authorization for the treatment by Dr. Raffai and that the treatment provided by Dr. Raffai was not necessary
for treatment of the work-related injury. 


     Section 7(a) of the Act, 33 U.S.C. §907(a), states that "[t]he employer
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."  Thus, even
where a claimant is not entitled to disability benefits, employer may still be
liable for medical benefits for a work-related injury. See Ingalls Shipbuilding,
Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14 (CRT)(5th Cir. 1993). 
Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth the prerequisites for
an employer's liability for payment or reimbursement of medical expenses incurred
by claimant.  The Board has held that Section 7(d) requires that a claimant request
his employer's authorization for medical services performed by any physician,
including the claimant's initial choice. See Maguire v. Todd Shipyards
Corp., 25 BRBS 299 (1992); Shahady v. Atlas Tile & Marble, 13 BRBS 1007
(1981)(Miller, J., dissenting), rev'd on other grounds, 682 F.2d 968 (D.C.
Cir. 1982), cert. denied, 459 U.S. 1146 (1983).  Where a claimant's request
for authorization is refused by the employer, claimant is released from the
obligation of continuing to seek approval for his subsequent treatment and
thereafter need only establish that the treatment he subsequently procured on his
own initiative was necessary for his injury in order to be entitled to such
treatment at employer's expense. See Schoen v. U.S. Chamber of Commerce, 30
BRBS 112 (1996); Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).

     In the instant case, the administrative law judge found that claimant's
initial choice of physician was first Dr. LeJeune and then Dr. Cenac, that claimant
did not seek authorization for the treatment provided by Dr. Raffai, and that
claimant had already received necessary treatment for his work-related injured from
Drs. Duval and Cenac, whose credentials were better than those of Dr. Raffai.  The
administrative law judge further found that Dr. Raffai's proposed course of
treatment, including physical therapy, steroid injections and possible surgery, was
not necessary and reasonable.  Rather, the administrative law judge determined that
claimant's subjective complaints of pain, if true, were not related to his
employment but were related to the fight he was in on February 22, 1998, or his
pre-existing condition.  On appeal, claimant contends that Dr. Cenac's release of
claimant constitutes a refusal to treat, thereby releasing claimant of the
obligation to request authorization from employer.  Contrary to claimant's
contention, the administrative law judge credited Dr. Cenac's diagnosis of a lumbar
strain, as well as his opinion that claimant was employable within the 50-pound
lifting restriction as of October 22, 1997, and was not in need of further
orthopedic treatment for his work-related injury. See Emp. Ex. 1.  As it was
within the administrative law judge's discretion to discredit the opinion of Dr.
Raffai, and the administrative law judge's conclusion that claimant's work-related
back condition had resolved by October 22, 1997, is rational and supported by
substantial evidence, we affirm the administrative law judge's finding that
employer is not liable for Dr. Raffai's treatment as it was not rendered for
claimant's work-related condition. See Brooks v. Newport News Shipbuilding & Dry
Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v. Director, OWCP, 2
F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993).     Accordingly, the Decision and Order Denying Benefits of the administrative law
judge is affirmed.

     SO ORDERED     



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                   
                         J. DAVITT McATEER
                         Administrative Appeals Judge




                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge 
     
     

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Footnotes.


1) 1In fact, the consent forms do not contain a notice that the consent is subject to revocation or the date upon which consent will expire, a requirement under 42 C.F.R. §2.31. Back to Text
2) 2Indeed, in his Decision and Order, the administrative law judge advised claimant's counsel that he may refer any alleged misconduct to the United States Attorney for further action. See Decision and Order at 3. Back to Text
3) 3We note again that claimant requested that the administrative law judge expunge references to his mental health only after he testified at length on direct and re-direct examination about his bipolar condition. See Tr. at 172-174, 178, 201-202. Back to Text
4) 4If the issue is viewed in the context of causation rather than extent of disability, then Section 20(a) would place upon employer the burden of producing substantial evidence that claimant's condition is not work-related. Employer met that burden here by introducing the opinions of Drs. Duval and Cenac that claimant's work-related injury had resolved by October 1997. Thus the issue under either analysis involves the weight accorded the evidence. Back to Text
5) 5In a footnote in his decision, the administrative law judge found that since employer established suitable alternate employment by virtue of its motorman trainee position, a full discussion of the job market survey of Dr. Stokes was unnecessary, but that all the positions identified in this survey were within the physical limitations imposed by Drs. Duval and Cenac. See Decision and Order at 26 n.14. As we affirm the administrative law judge's finding of suitable alternate employment based on the motorman position in its facility, we need not address the administrative law judge's findings with regard to employer's job market survey. Back to Text
6) 6Claimant does not allege on appeal that he diligently sought and was unable to obtain employment. At the hearing, claimant testified that aside from a two-week job as a carpenter's helper, he has not applied for any other employment. See Tr. at 242-244. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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