BRB No. 01-0819
JAMES R. THORNTON )
)
Claimant-Petitioner )
)
v. )
)
UNIVERSAL MARITIME SERVICES ) DATE ISSUED: 07/17/2002
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Richard K. Malamphy, Administrative
Law Judge, United States Department of Labor.
SuAnne Hardee Bryant (Bryant & Associates, P.C.), Chesapeake, Virginia,
for claimant.
F. Nash Bilisoly (Vandeventer Black, L.L.P.), Norfolk, Virginia, for
self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (99-LHC-2322, 99-LHC-2323) of
Administrative Law Judge Richard K. Malamphy 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
administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law.
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).
The parties stipulated at the hearing that claimant sustained work-related
back injuries on August 14, 1995 and March 19, 1996, while working for employer.
The contested issues presented to the administrative law judge which are relevant
to the instant appeal involved the question of claimant's entitlement to temporary
partial disability benefits for three dates on which claimant received medical
treatment for his work-related back injury and questions as to whether claimant
requested a change in his treating physician from Dr. Morales to Dr. Byrd and
whether claimant is entitled to reimbursement for Dr. Morales's medical services.[1] In his Decision and Order, the administrative
law judge found, with respect to these issues, that claimant is not entitled to
compensation for the three dates on which he obtained medical treatment, that Dr.
Byrd is claimant's authorized treating physician, and that employer is not
responsible for the payment of treatment provided by Dr. Morales to claimant after
October 1996.
On appeal, claimant challenges the administrative law judge's denial of his
request for temporary partial disability compensation for the three dates during
which he was unable to work as a result of his having to undergo medical treatment.
Claimant further contests the administrative law judge's findings that claimant
requested a change in his treating physician from Dr. Morales to Dr. Byrd and that
he therefore is not entitled to reimbursement for Dr. Morales's treatment after
October 1996. Employer responds, urging affirmance.
We first address the administrative law judge's determination that claimant
is not entitled to the temporary partial disability benefits he sought to
compensate for his loss of earnings incurred on December 6, 1995, January 10, 1996,
and February 21, 1996, when he received medical treatment from Dr. Morales. The
administrative law judge acknowledged claimant's uncontested testimony that he
could not work a partial work day after his appointments with Dr. Morales because
his position had been filled by another employee on each of the three dates for
which he sought disability benefits. See Decision and Order at 3; Tr. at 17-18. Thereafter, citing the Board's holding in Castagna v. Sears, Roebuck &
Co., 4 BRBS 559 (1976), that Section 7(a) of the Act, 33 U.S.C. §907(a),
does not entitle a claimant to reimbursement for loss of annual leave used to
attend medical appointments, the administrative law judge summarily rejected the
claim for disability compensation for these dates.
Initially, the administrative law judge's reliance on Castagna to
support his determination that claimant is not entitled to disability benefits for
the dates on which he received medical treatment is misplaced. Unlike the case at
bar, the claimant in Castagna did not make a claim for disability benefits
for lost time under Section 8 of the Act, 33 U.S.C. §908; rather, he sought
only to be reimbursed under Section 7(a) for the annual leave he was assessed by
his employer for the time he spent attending medical appointments. In contrast to
the situation in Castagna, the claimant here sought disability benefits to
compensate him for his loss of wage-earning capacity resulting from the medical
treatment of his work-related injury, pursuant to Section 8(e) of the Act, 33
U.S.C. §908(e). [2] The Board's holding in
Castagna is thus inapposite to the present claim.
The administrative law judge in the instant case did not address the relevant
issue, which is whether claimant has established a loss of wage-earning capacity
due to a work-related inability to work on those dates on which he underwent
medical treatment.[3] See 33 U.S.C.
§908(e), (h); see generally Stallings v. Newport News Shipbuilding & Dry
Dock Co., 33 BRBS 193 (1999), aff'd in pert. part, 250 F.3d 868, 35 BRBS
51(CRT)(4th Cir. 2001) (claimant's work-related injury held to have diminished
claimant's post-injury wage-earning capacity as demonstrated by his actual post-injury wage loss notwithstanding that the actual wage loss sustained by the
claimant was intermittent and small in amount). We therefore vacate the
administrative law judge's denial of temporary partial disability benefits for
December 6, 1995, January 10, 1996, and February 21, 1996, and remand the case for
the administrative law judge to reconsider, in accordance with the applicable law,
the issue of claimant's loss of wage-earning capacity on the dates on which he
underwent medical treatment for his work-related injury. See 33 U.S.C.
§908(e), (h); Stallings, 33 BRBS 193; Ramirez v. Sea-Land Services,
Inc., 33 BRBS 41, 45 n. 5 (1999).
We next consider claimant's challenge to the administrative law judge's
findings that claimant requested a change in his treating physician, from Dr.
Morales to Dr. Byrd, which was approved by employer and that, accordingly, employer
is not liable for the payment of Dr. Morales's treatment rendered after October
1996. Section 7(c)(2) of the Act, 33 U.S.C. §907(c)(2), provides that once
claimant has made his initial choice of a physician, he may change physicians only
upon obtaining prior written approval of the employer, carrier or district
director. See also 20 C.F.R. §702.406. In the case at bar, the
administrative law judge determined that the record evidence supports a finding
that claimant's prior counsel, Tom Hennessey, requested a change in treating
physician from Dr. Morales to Dr. Byrd and that employer consented to this change
in October 1996.[4] In contesting this finding,
claimant avers that the evidence demonstrates that there was not an agreement
between the parties in 1996 that Dr. Byrd had become claimant's treating physician.
The Board, however, is not empowered to substitute its views for those of the
administrative law judge or to reweigh the evidence; rather, the Board must accept
the credibility assessments, the inferences drawn from the evidence, and the
factual findings of the administrative law judge which are reasonable and supported
by substantial evidence. See Norfolk Shipbuilding & Dry Dock Corp. v. Faulk,
228 F.3d 378, 34 BRBS 71(CRT) (4th Cir. 2000). In this case, the administrative
law judge's finding that Mr. Hennessey requested a change of physician from Dr.
Morales to Dr. Byrd is reasonable and supported by substantial evidence. Id.
Accordingly, we affirm the administrative law judge's determination that Dr. Byrd
was claimant's authorized treating physician as of October 1996. See 33
U.S.C. §907(c)(2); 20 C.F.R. §702.406.
Our affirmance of the administrative law judge's finding that Dr. Byrd was
claimant's authorized treating physician as of October 1996 is not dispositive,
however, of the issue of whether the administrative law judge erred in proceeding
to summarily find that employer is not liable for the payment of Dr. Morales's
charges for all medical treatment provided after October 1996. Section 7(d) of the
Act, 33 U.S.C. §907(d), sets forth the prerequisites for employer's liability
for payment or reimbursement of medical expenses incurred by claimant. See
Maryland Shipbuilding & Dry Dock Co. v. Jenkins, 574 F.2d 404, 10 BRBS 1 (4th
Cir. 1979); Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989). Section
7(d) requires that a claimant request employer's authorization for medical services
performed by any physician. See, e.g., Ezell v. Direct Labor, Inc., 33 BRBS
19, 27 (1999); Anderson, 22 BRBS at 23. 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 Ezell, 33 BRBS at 28; Schoen v. U.S. Chamber of
Commerce, 130 BRBS 112 (1996); Anderson, 22 BRBS at 23.
In the instant case, the record reflects that during the fall of 1997,
claimant sent employer invoices for medical care rendered by Dr. Morales after
October 1996; by letter dated December 12, 1997, employer refused to authorize
payment of Dr. Morales's bills. EX 3; see also EX 4. The administrative
law judge, however, did not address the issue of claimant's entitlement pursuant
to Section 7(d) to reimbursement by employer of the cost of Dr. Morales's medical
care procured by claimant after employer refused to authorize such treatment.
See Ezell, 33 BRBS at 28; Schoen, 130 BRBS at 113; Anderson,
22 BRBS at 23. We therefore must vacate the administrative law judge's finding
that employer is not liable for any treatment rendered by Dr. Morales subsequent
to October 1996, and remand the case for the administrative law judge to consider
the issue of employer's liability for any treatment by Dr. Morales procured by
claimant after he requested treatment with that doctor which was reasonable and
necessary for claimant's work-related injury. Id.
Accordingly, the administrative law judge's Decision and Order is affirmed in
part and vacated in part, and the case is remanded for further consideration
consistent with this decision.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)The remaining issue presented to the administrative law judge involved claimant's
entitlement to temporary total disability compensation for the period from March 19-24, 1996. The administrative law
judge's conclusion that claimant is entitled to compensation during this period of time is not challenged by employer in
the appeal presently before the Board.
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2)Section 8(e) provides as follows:
Temporary partial disability: In case of temporary partial disability resulting in decrease of earning
capacity the compensation shall be two-thirds of the difference between the injured employee's average
weekly wages before the injury and his wage-earning capacity after the injury in the same or another
employment, to be paid during the continuance of such disability, but shall not be paid for a period
exceeding five years.
33 U.S.C. §908(e).
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3)The record reflects that on each of the three dates in question, Dr. Morales's treatment of
claimant included injections with Marcaine in claimant's painful trigger point areas. See EX 1. Claimant's
pain is a relevant factor in determining post-injury wage-earning capacity. See, e.g., Ramirez v. Sea-Land Services,
Inc., 33 BRBS 41, 45 n.5 (1999). See generally Metropolitan Stevedore Co v. Rambo [Rambo II],
521 U.S. 121, 31 BRBS 54(CRT) (1997).
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4)In this regard, the administrative law judge considered the evidence in support of claimant's
position that he simply wanted to obtain a second opinion from Dr. Byrd, and continued to consider Dr. Morales to be
his treating physician. See Decision and Order at 6; Tr. at 19-21, 25-30. The administrative law judge also
considered the testimony of the claims adjuster, Marsha Townsend, and documentary evidence supporting employer's
position that claimant's prior attorney requested a change in treating physician from Dr. Morales to Dr. Byrd in August
1996 and that employer consented to this change by letter dated October 30, 1996. See Decision and Order
at 6-7; Tr. at 37-38; EXS 2, 3. Having considered all the relevant evidence, the administrative law judge determined
that Ms. Townsend would not have stated in her October 30, 1996 letter that she agreed to a change in treating physician
unless Mr. Hennessey had made such a request. See Decision and Order at 8. Thus, the administrative law
judge concluded that Dr. Byrd was the authorized treating physician as of October 1996. Id.
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NOTE: This is an UNPUBLISHED LHCA Document.
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