Division of Longshore and Harbor Workers' Compensation (DLHWC)
CHAPTER 5-100 INTRODUCTION
1. Purpose and Scope. This Part of the LHWCA PM establishes the procedures essential for the regulation, administration, and supervision of the medical services, supplies, and care authorized for injured employees under the LHWCA. The several Chapters that follow cover the identification of medical services authorized; the definition of responsibilities for the acquisition and referral of medical services; the screening, interpretation, and application of medical reports; the evaluation of physical impairment; the regulation and administration of medical fees and charges; the procedures to be followed for debarment of medical care providers; and the supervision incident to determining the necessity, character, and sufficiency of medical care for the injured employee under the LHWCA.
2. Authority. The Secretary of Labor is required, under section 7(b) of the LHWCA, to actively supervise medical services provided to injured employees. Designated representatives of the Secretary are delegated the authority to administer the LHWCA in the National and District Offices to insure proper supervision of that medical care and to manage the reports required for the assessment of case progress. The LHWCA gives the Secretary, and the Secretary has delegated to local District Offices, the power to make determinations as to the necessity, character, and sufficiency of any medical care furnished. It further prescribes that such officials take the initiative to verify that injured employees are receiving proper medical services and, when required, available rehabilitation services (See paragraph 12 in this section).
3. Policy. Medical service and care for an injured employee is defined in paragraph 4, below and shall be as prescribed by section 7 of the Act and 20 C.F.R. sections 702.401 to .422.
- It is the duty of the EC to furnish appropriate medical care for the employee's injury until recovery.
- An injured employee shall have the right to select the attending physician of his/her choice from among those authorized for the occupational injury or illness. In emergencies, where the employee is unable to select a physician, the EC shall make the selection (20 C.F.R. section 702.405). Although the statute is ambiguous on the question, the EC's choice of a physician under such circumstances should not be treated as eliminating the worker's right to choose a different physician once he or she is able to do so. (See PM 5-200.4(b).)
- When the employee has made the initial selection of a physician, any changes in physicians must have the approval of the EC or the DD. However, the employee may take an active part in controlling his/her own medical care. (See Amos v. Director, OWCP, 32 BRBS 144(CRT)(9th Cir., 1998)).
- In any case in which a controversy arises concerning medical questions, the Director, OWCP, through the DDs is empowered to evaluate such questions including appointment of one or more specially qualified physicians to examine the employee or to make such inquiry as required in death cases.
- The employee is required to submit to a special examination necessary to the adjudication of the case, at a designated place which is convenient to the employee. Costs for such examinations or reviews, with the approval of the Director or designee, are chargeable to the EC or the Special Fund (20 C.F.R. sections 702.410 and 702.412).
(1) This term includes doctors of medicine (MDs); surgeons, podiatrists, dentists, clinical psychologists, optometrists, and osteopathic practitioners within the scope of their practice as defined by state law. Physicians defined in this part may interpret their own x-ray. (See 20 C.F.R. section 702.404.)
(2) Although the term “physician” also includes chiropractors, payment for their services is limited, by regulation, to charges for physical examinations, related laboratory tests, x-rays made or required by the chiropractor to diagnose a subluxation of the spinal column, and treatment consisting of manual manipulation of the spine to correct a subluxation which is demonstrated by x-ray. For example, the Board has held that an employer was not liable for biofeedback treatment and physical therapy provided by a chiropractor based upon the plain language of 20 C.F.R. section 702.404 which limits the reimbursable services of a chiropractor. (See Nell Bang v. Ingalls Shipbuilding, Inc., 32 BRBS 183 (1998))
(3) All licensed physicians in the foregoing categories are authorized by the Director, OWCP, to render care under the Act, unless included on the Secretary's list of physicians and health care providers not authorized to render medical care or provide medical services. (See PM 5-600.)
(4) Naturopaths, faith healers, and other practitioners of the healing arts not listed herein are not included within the term "physician" under the LHWCA.
b. Medical Care. This term includes medical, surgical, and other attendance or treatment; nursing and hospital services; laboratory, x-ray, and other technical services; prosthetic devices; and any other medical service or supply, including the reasonable and necessary cost of travel incidental thereto, which is recognized as appropriate by the medical profession for the care and treatment of the injury or disease. (See 20 C.F.R. section 702.401 and PM 5-200.)
(1) An employee may rely on treatment by prayer or spiritual means alone, in accordance with the tenets and practice of a recognized church or religious denomination, by an accredited practitioner of such recognized church or religious denomination, and nursing services rendered in accordance with such tenets and practice without loss or diminution of compensation or benefits under the LHWCA.
(2) A recognized church or religious denomination shall be any religious organization: (a)that is recognized by the Social Security Administration for purposes of reimbursements for treatment under Medicare or Medicaid or (b)that is recognized by the Internal Revenue Service for purposes of tax exempt status.
(3) Acupuncture -- A treatment by means of the insertion of needles, with the purpose of relief of chronic pain, loss of hearing, for anesthesia and other purposes. If recommended by a duly qualified attending physician, it may be covered under the LHWCA. The attending physician should continue to oversee the medical care, including the acupuncture, and submit periodic reports to the district office. The reports should show whether there has been any medical improvement or symptomatic relief. If it appears that the treatment is becoming prolonged, or the results are questionable, the continuation of the treatment should be reviewed with the attending physician and/or other parties as appropriate.
c. Impairment. Referring to the Guides to the Evaluation of Permanent Impairment of the American Medical Association (AMA), impairment is defined as a permanent anatomical loss or abnormality which interferes with the activities of normal living. Hence, an abnormality becomes an impairment to the degree that it interferes with the activities of normal living for the individual.
(1) This term generally refers to the inability to work due to a functional or anatomical injury, loss, or abnormality. It also includes appraisal of the present and future ability to secure and perform work as affected by age, education, work history, and other economic factors as well as the impairment related to injury. For a more specific definition, see sections 2(10) and 8(h) of the Act.
(2) Partial disability refers to a disabling condition that still allows the employee to perform some work. Some impairments constitute permanent partial disability irrespective of their effect, or lack of effect, on earning capacity. See section 8(c)(1)-(20).
(3) With respect to an occupational disease which becomes manifest after a claimant retires, disability is defined as the permanent impairment of the claimant as determined in accordance with the AMA Guides to the Evaluation of Permanent Impairment.
e. Permanence. A disability is "permanent" when the underlying medical condition has become stable, i.e., has reached "maximum medical improvement," or when the return of at least some earning capacity is not an expected outcome of a course of treatment or healing period.
f. Temporary Disability. A situation in which the individual is temporarily unable to perform regular or other work because of an anatomical or functional abnormality or impairment which is expected to improve. The situation is considered temporary when the final effects of treatment and therapy have not been reached and/or when the return of at least some earning capacity is an expected outcome of a course of treatment or healing period. For other definitions, see PM 0-300.8.
a. The Secretary is required under the LHWCA to actively supervise medical services provided injured employees. The DO: requires periodic medical reports and takes the initiative in contacting injured employees, especially those with serious injuries, to ensure that they are receiving medical care appropriate to their injuries and that available rehabilitation services are provided.
b. The Director, OWCP, through the DDs and their designees, has been delegated the authority to actively supervise the medical care of an injured employee covered by the Act. The degree of supervision is set forth in 20 C.F.R. section 702.407 and examples may be found in the following paragraph.
c. The District Directors are responsible for the active supervision of medical care of injured employees in accordance with section 7(b) of the Act and 20 C.F.R. section 702.407. Such supervision shall include:
(1) the requirement for periodic medical reports on cases which are in the office of the DD, the frequency being determined by the DD or sound judgment of the attending physician, as the nature of the injury may dictate;
(2) the determination of the necessity, character, and sufficiency of any medical care furnished or to be furnished the employee;
(3) the determination of whether a change of physicians, hospitals, or other persons or locales providing treatment should be made;
(4) the evaluation of medical questions arising under the Act, with respect to the nature and extent of the covered injury, and the medical care required for it; and
(5) the preliminary determination of disputes concerning whether the charges for such medical care exceed those permitted under the Act.
d. The Employer/Carrier is required to furnish appropriate medical care for the employee's injury for such period as the nature of the injury or the process of recovery may require. The liability of an employer for medical treatment shall not be affected by the fact that the employee was injured through the fault or negligence of a third party not in the same employ, or that suit has been brought against such third party. (See section 7 of the Act, 20 C.F.R. section 702.402, PM 2-201.3e and 3-301.3e.) Furthermore, the liability of an employer to furnish medical treatment for a causally related injury is never time barred.
e. The Employee shall submit to any special examination as may be requested by the employer at such place as is designated by the DD but at a place reasonably convenient to the employee. (See section 7(d) of the Act and 20 C.F.R. sections 702.403 and 702.410.)
f. The Claims Examiner (CE) is responsible for performing such duties as the DD directs in connection with the tasks of subparagraph 5c, above. The CE must determine whether an injured employee is receiving care by an appropriate medical specialist and, if not, should arrange to transfer the case to another physician. CE's should request medical reports at periodic intervals and, if disability is prolonged, insure review by the rehabilitation specialist (RS) for possible medical rehabilitation measures. In cases where surgery is performed, follow-up reports must be obtained and the cases watched for permanent effects. This responsibility is met in conjunction with the CE's continuous monitoring of actions of the EC in distributing compensation benefits and delivering claims services to which an injured worker is entitled. The CE is considered a health care professional -- not a physician providing direct services -- who, along with the EC adjuster, exerts positive influence on the outcome of medical services rendered the injured worker.
Timely review of extended disability cases insures that injured workers are properly classified, so that "temporary disability" status is not inappropriately extended, preventing him/her from receiving yearly compensation increases under section 10(f). Therefore, all extended disability cases are to be reviewed regularly to insure that there are no delays in making permanency determinations. After the claimant has been receiving temporary total disability for one year the case is to be reviewed carefully. A current medical report which specifically addresses the nature and extent of disability is to be requested. If the report submitted is inadequate, the district office should make arrangements pursuant to Section 7(e) of the Act to have the claimant examined and a satisfactory report submitted. If the claimant has not already been evaluated for rehabilitation services, the district office should make the referral to a rehabilitation specialist. Where a determination cannot be made regarding extent of disability after one year of temporary total disability payments, the case should be identified for continued regular monitoring.