Division of Longshore and Harbor Workers' Compensation (DLHWC)
CHAPTER 5-200 CARE/SUPERVISION/REHABILITATION
1. Purpose and Scope. This Chapter establishes procedures for the determination and acquisition of appropriate medical care and qualified physicians for the treatment and/or evaluation of injured employees under the LHWCA. It explains the requirements of effective supervision to insure that timely assessments and determinations are made on the necessity, character, and sufficiency of medical care services, and/or rehabilitation services provided the injured worker. Medical care, services, and supplies for injured workers, as well as the responsibility for the management of the LHWCA program, are defined in Chapter 5-100.
2. Authorized Care/Services.
- LHWCA. Section 7(a) requires the EC to furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.
(1) In cases where the DD determines that there is a question as to the necessity, character, or sufficiency of medical care being furnished, or to be furnished the injured employee, the question should be resolved as promptly as possible. The DD should make use of available medical references, seek the advice of the OWCP District Medical Advisor where available, or consult the attending physician.
(2) If the injured employee is under the care of a qualified physician authorized or approved to provide medical care and there is any question concerning the attending physician's medical management of the case, e.g., the use of prolonged therapeutic measures of questionable value, it is proper to tactfully request the physician's comments regarding the need to continue the questionable treatment. It is contrary to medical ethics to tell a physician how to treat his patient; however, there should be no hesitation in requesting discussion of the medical problem involved.
(3) It is within the scope of the DD's supervisory functions and responsibilities to seek consultation services with other experts in specialized fields of medicine. In such instances, the attending physician must be advised of the action contemplated and informed that the results of any consultations will be made available to the physician.
3. Identification and Recognition of Need.
- Employer's Action. Whenever an employer acquires knowledge of an employee's injury, through receipt of a written notice or otherwise, the employer is required to authorize, in writing, appropriate medical care. The Director has prescribed Form LS-1, Request for Examination and/or Treatment (Exhibit 1, PM 10-200) for this purpose. This is a two-part form. Part A--Authorization, provides a means for the employer to provide medical care under the Act by an authorized physician of the employee's choice. Part A is to be completed in triplicate by the employer and given to the employee to deliver to the authorized physician. The physician is to complete Part B--Attending Physician's Report, retain one copy, send one copy to the DD (whose address should be shown in Item 12), and send the third copy to the insurance carrier or self-insured employer. Instructions to the employer and the physician are printed on the front and back of the form. The issuance of this authorization for treatment by the employer binds the EC to furnish and pay for such care and services.
- Employee's Action on Sustaining Injury.
(1) An employee will not be entitled to recover any money spent for medical or other treatment or services, unless:
(a) The employee has requested the employer to furnish or authorize such treatment or service by a physician selected by the employee, or
(b) The employer, having knowledge of an injury requiring treatment or services, has refused or neglected to authorize or provide necessary treatment.
(2) For any special examination required of an employee by the DD, the employee shall submit to such examination at such place as he/she is to report, but the place so selected must be reasonably convenient for the employee. Failure to submit to a lawfully ordered examination can result in the suspension of any claim proceedings, and no compensation otherwise payable shall be paid for any period during which the employee refuses to submit to such examination.
(3) If, at any time, the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the DD (acting for the Secretary) or an ALJ may, by order, suspend the payment of further compensation during such time as the refusal continues. No compensation shall be paid at any time during the period of suspension, unless the circumstances justified the refusal (20 C.F.R. section 702.410 and section 7(d)(4) of the Act).
(a) Two-prong Test. The Benefits Review Board has held that application of this provision involves a two-prong test. The refusal must be both "unreasonable" and not "justified" by the circumstances. The burden of proof is on the employer to show that the refusal was unreasonable; if carried, the burden shifts to the employee to show circumstances justify the refusal.
(b) The board additionally defined reasonableness of refusal as an objective inquiry (i.e., what course would an ordinary person in the claimant's position pursue?), and justification as a subjective inquiry (i.e., focusing on the individual claimant's particular reasons for refusal).
4. Choice of Physicians.
- Non-Emergency Situations. The employee shall have the right to choose an attending physician from among those authorized by the Director, OWCP. The Director has authorized all duly qualified physicians identified in PM 5-100.4 to render medical care under the Act. However, unless authorized by the DD, the employee's choice is limited to those physicians having offices within twenty-five miles of the employee's home or principal place of work. This limitation does not apply, however, when the employee is hospitalized and the physician is on the staff of, or has privileges at, such hospital; nor does it limit subsequent referrals by the attending physician for needed specialized treatment or examination (20 C.F.R. section 702.403).
- Emergency Situations. When the nature of the injury requires immediate medical care and the injured employee is unable to select a physician, the employer shall do so. Such selection by the employer, unless later confirmed by the employee, shall not constitute the employee's initial, free choice of a physician (20 C.F.R. section 702.405).
- Special Situations. “While the Secretary of Labor is authorized under the Act to supervise medical care rendered to injured employees, neither the employer nor the Secretary stands in loco parentis to injured employees. Nothing in the Act requires injured workers to abdicate the right to make their own decisions about their medical care. Although the employer is not required to pay for unreasonable and inappropriate treatment, when the patient is faced with two or more valid medical alternatives, it is the patient, in consultation with his own doctor, who has the right to chart his own destiny.” Amos v. Director, OWCP, 32 BRBS 144, 147(CRT)(9th Cir. 1998).
5. Change of Physician at Claimant's Request.
- Non-Emergency Situations. When an employee has made an initial free choice of an attending physician, the employee may not thereafter change attending physicians without obtaining prior written consent from the EC or the DD. Such consent shall be given in cases where an employee's initial choice was not of a specialist whose services are necessary for, or appropriate to, the proper care and treatment of the compensable injury or disease. In all other cases, consent may be given upon a showing of good cause for change. An injured employee who requests a change of physician will be asked to justify the request. Before making a change, the CE should ordinarily write to the attending physician for comment and opinion as to whether the transfer of medical care would interfere with the progress of the case. If the requested transfer is granted, the attending physician must be notified so that he/she may close the file on the case and submit a report. The EC must also be notified in writing.
- Emergency Situations. As indicated above, requests for change of physician will ordinarily be done in writing. However, in an emergency, the request may be made by telephone call either to the DD or the EC. The conversation should be documented by the receiving party and if the request is approved, the entire matter should be confirmed in writing. The DD and EC should arrange for appropriate copies of the documents for each other's files.
- Special Situations. After a claimant has made the initial choice of a physician, the claimant may consult another physician for emergency medical care due to an acute flare-up in condition, if the regular treating physician is unavailable to provide such care. In such situations, the CE should obtain a medical report from the physician who provided the emergency care and ensure that a copy of this report is furnished to the authorized treating physician and to the EC.
6. Change of Physician - Request of Physician. If the attending physician requests to be relieved from continuing responsibility in a case, the request will be granted. However, the physician will be requested to furnish a report stating reasons for withdrawing from the case, describing the patient's condition at the time and any other recommendation the physician may have.
7. Change of Physician - Initiated by the DD. A change of the treating physician should be ordered by the DD if one or more of the following situations exist:
- The physician will not submit medical reports or does not submit adequate medical reports.
- The physician is not in the appropriate specialty to be treating the injury (e.g., an internist would not be the best choice to treat a back injury).
- An independent examination indicates that the treatment being rendered is prolonged, ineffective, or of questionable medical value.
- Where the fees charged exceed those prevailing within the community for the same or similar services or exceed the provider's customary charges. (See PM 5-500.3.)
8. Procedure for Change of Physician. The primary reasons for changing physicians are to ensure that the best medical treatment possible is obtained and that medical reports are regularly and promptly submitted. The exercise of sound judgment in ordering a change of physicians is of prime importance. Liberal use of special examinations to resolve medical questions is encouraged. Great care should be taken not to interfere with treatment necessary for the well-being of the employee. If the treating physician expresses the opinion that a change of physician is desirable or necessary, the physician may make the referral if he desires and should notify the DD and EC when doing so. The physician may also request the OWCP to designate another physician and make a direct referral. A change in medical management will usually be accomplished by written notification to all parties or by memorandum following an informal conference. However, under authority of section 7(b), the DD may order a change of physician or treatment by issuing a formal order.
9. Conflict in Medical Evidence. In any case in which controversy arises with respect to the degree of an employee's physical impairment, diagnosis, or the extent and effect of treatment, an evaluation of such questions will be made by appointing one or more eminently qualified physicians to examine the employee.
10. Impartial Medical Examinations.
- Authority. Section 7(e) provides that impartial medical examinations may be utilized in any case in which medical questions are in conflict and requires that a report be submitted to the DD estimating the employee's physical impairment and any other information that is deemed appropriate.
- Utilization of Impartial Examination.
(1) The DDs should also utilize the section 7(e) procedures in cases where medical questions arise regarding the necessity for medical treatment, indications for or against medical procedures, the duration of required treatment, or the effectiveness of such treatment as may have been provided.
(2) The procedures in section 7(e) may and should be used when a question arises as to the degree of "the employee's physical impairment". However, questions as to the nature and extent of disability, other than where either section 8(c)(1)-(19) or section 8(c)(23) is the operative provision, are not solely medical questions, but involve both economic and medical concepts. The physician conducting the examination for estimating a claimant's physical impairment cannot and should not be asked to evaluate employee's economic disability.
(3) An impartial medical evaluation should also be utilized to resolve any outstanding medical questions in a case where section 8(f) relief is an issue. The questions may involve: the extent of permanent disability, the date of maximum medical improvement, and the contribution (if any) of the pre-existing condition to the subsequent disability or death.
- Selection of Impartial Specialist.
(1) The services of all available and qualified Boardcertified specialists will be used to the extent practicable to eliminate any possible inference of bias or partiality. However, many general practitioners specializing in industrial medicine are well qualified to treat routine work-related injuries and conduct examinations under section 7(e).
(2) Section 7(i) provides that unless the parties agree, no physician shall be employed or selected to conduct examinations and reviews pursuant to section 7(e) who is an employee of an insurance carrier, or who during the period of two years prior to such employment has been employed by or accepted or participated in any fee related to a worker's compensation claim from any insurance carrier. This restriction does not disqualify all doctors who have been paid by insurers for treatment of patients during the preceding two years, but only those who have received fees from carriers or self-insured employers for formulating opinions about cases during that period.
(3) Where the parties participate in the selection of a physician, the DD will prepare a list of three or more Board-certified specialists for submission to the parties from which list the parties will be asked to agree on the physician to be selected. In selecting physicians to be submitted to the parties, or where the selection is made by the DD, a rotation system shall be followed.
(4) If there is reason to consider a specialist's views or opinions to be reasonably predictable because of the specialist's writings and/or reputation in the specialty, or otherwise, the specialist will not be selected. In making this determination, the OWCP District Medical Advisor, if available, will be consulted.
(5) In the following situations, the DD may order impartial examinations under section 14(h). These situations include a case in which payments are being made without an award or:
(a) Where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation, or from the employer, that the right to compensation is controverted;
(b) When no physician qualified under section 7(i), or acceptable to the parties can be identified.
(6) Where an impartial evaluation is to be used to clarify medical issues in a case where section 8(f) is an issue, the examination should be arranged by the DD. This is not to be done by the parties. The claimant should be examined by the impartial medical specialist. The DD should frame the questions to be answered by the specialist and the report of the specialist should be sent first to the DD. This procedure should be followed so that the specialist's evaluation will be impartial and not simply reflect the views of the parties.
- Pre-judgment by Impartial Specialists. The special examination should be made in such a manner as to preclude pre-judgment by the impartial examiner. No physician previously connected with the case may be present, nor may any other physician selected by the employer, carrier, or employee be present. An impartial medical examiner should not routinely be provided with copies of all medical reports contained in the case file. If necessary, the impartial physician may be provided with the results of any diagnostic tests performed by other physicians. However, the impartial medical specialist is not to be provided with the opinions, reports, or conclusions of any prior examining physician with respect to the nature and extent of the impairment, its cause, or its effect upon the wage-earning capacity of the injured employee. Even though an impartial medical examiner may be provided with the results of previously performed diagnostic tests, this is to be done only where it is necessary for completion of the examination and not routinely in every case. Furthermore, although section 7(f) of the Act allows the Secretary to provide the impartial physician with the conclusions of other physicians, our policy is that this should be done only in extremely rare and unusual circumstances. The impartiality of specialists, however, is not compromised if the DD apprises the specialist of the undisputed facts pertaining to the nature of the employee's employment, the nature of the injury, the post-injury employment activity, if any, and of any other facts which are not disputed and are considered pertinent to the type of injury and/or the type of examination being conducted. The DD may also inform the specialist about the claimant's pre-existing condition(s) where the issue involved is section 8(f) relief.
- Review or Re-Examination.
(1) Any party dissatisfied with the report of the impartial examiner may request a review or re-examination of the employee by one or more different physicians employed or selected by the DD, and such review or re-examination must be completed within two weeks from the date ordered unless it is impossible to complete the review and render a report within this time period. Upon receipt of the report of this additional review and re-examination, a recommendation should be made for the consideration of the parties. (Also see PM 5-400.7, 5-400.12, and 3-301.7.)
(2) If the parties are unable to reach an agreement on the medical question(s) after the review or re-examination, the DD or CE shall nevertheless make a recommendation in accordance with PM 4-200. If the recommendation is not accepted, and if requested, the case should then be prepared for referral to the ALJ for a formal hearing on the issue. The DD, howeer, has authority to determine the necessity, character and sufficiency of any medical aid furnished or to be furnished to injured employees. He/she may order a change of physicians or hospitals when, in his/her judgment, such change is desirable or necessary, or where the charges exceed those prevailing within the community or exceed the provider's customary charges (section 7(b) of the Act), and may order the EC to pay for particular medical services.
11. Cost of Special Examination.
- The cost of special examinations requested by a DO under sections 7(e) or 14(h) are to be charged to employers or insurance carriers. Such costs are not to be charged to the Special Fund. If the employer/carrier indicates they will not pay for the examination, the district director may insert language (in the compensation order directing the special examination) which provides that the employer pay for the examination, and giving the Special Fund authority to pay for the examination if the employer/carrier refuses. However, the order should also indicate that the Special Fund would be entitled to reimbursement and interest. If the employer/carrier then fails to comply with the order, apply for enforcement to the Federal District Court.
- The cost of an examination under section 7(e) will be paid by the Special Fund only where (1) the examination involves a Special Fund beneficiary and (2) the examination was requested directly by the Director, DLHWC. Bills for such examinations are to be sent by the DO directly to the Director, DLHWC, within five days of their receipt.
12. Rehabilitation. Effective supervision of the care and treatment of injured workers includes rehabilitation, both medical and vocational. The OWCP rehabilitation program assists disabled employees who are covered under the LHWCA to minimize their disabilities and return to gainful work. Rehabilitation helps injured workers to become self-supporting and productive, and saves money by elimination or reducing workers' compensation payments.
- OWCP Rehabilitation Specialists (RS) and Claims Examiners carry out the program with the assistance of private and public agency rehabilitation providers, physicians, and employers, making sure that eligibleworkers receive the rehabilitation services best designed to return them to suitable work, preferably with little or no loss of earnings. The Rehabilitation Specialists are responsible for the following functions:
(1) Provide professional direction to the district office's rehabilitation program;
(2) Oversee the provision of services to individual injured workers, ensuring that quality and timeliness standards are met;
(3) Ensure compliance with OWCP contractual requirements on the part of Rehabilitation counselors (RC's), issuing warnings and termination notices when violations occur and ensuring that changes in OWCP policy are communicated promptly to RC's;
(4) In conjunction with Division of Planning, Policy and Standards (DPPS), ensure that as far as possible an adequate number of qualified counselors are certified in the office's area of jurisdiction to provide good quality services to injured workers;
(5) Maintain a complete and accurate RTS data base and provide data monthly and quarterly as required to DPPS;
(6) Through Claims Examiner referrals or using computer-generated lists, screen and open cases in sufficient numbers to achieve program plan goals;
(7) Through personal visits and telephone contact, maintain a fruitful working relationship with employers in the office's jurisdiction to promote the reemployment of injured workers;
(8) Provide ongoing direction to counselors on individual rehabilitation cases in the office's jurisdiction, ensuring timely and good quality services.
- Longshore Act and Regulation sections relative to Rehabilitation:
(1) Section 7 (a) of the LHWCA states that the employer shall provide medical care for such periods as the nature of a covered work injury or the process of recovery may require.
(2) Section 39 (c) provides that the Secretary shall direct the vocational rehabilitation of permanently disabled employees, and may use the Special Fund established by section 44 to procure vocational rehabilitation services and appliances necessary for an injured employee to resume work.
(3) Section 8(g) provides for maintenance allowance of up to $25 per week for an employee undergoing rehabilitation, to be paid from the Special Fund.
(4) Section 39(c)(1) requires the Secretary to provide information on vocational rehabilitation services and assist covered employees in obtaining the best such services.
(5) The Regulations at 20 DFR 702.501 - 508 govern the rehabilitation process.
(6) OWCP Rehabilitation Procedure Manual.
- Early Intervention. Emphasis is on early intervention to prevent long-term disability and improve the chances of successful return to work. CE's must ensure that cases are referred as soon as indicated by medical evidence, and that needed information is conveyed quickly to the RS.
- Medical Rehabilitation refers to those medical services necessary to correct, minimize or modify the impairment caused by a disease or injury with the goal of returning the injured worker to an adequate level of function and employment. Medical rehabilitation may include services such as physical, occupational or speech therapy, orthotics, prosthetics, psychiatric counseling, occupational rehabilitation programs and others.
- Vocational Rehabilitation services can be defined as services which enhance the ability of an injured worker to return to gainful employment. These include testing, evaluation, counseling, guidance, training, placement and follow-up.
- Referrals. The CE as well as carriers/employers refer cases to the RS. The claims examiner is responsible for the medical monitoring of cases in a TTD status for early indications of the need for rehabilitation. The claims examiner should refer the case to the Rehabilitation Specialist using Form OWCP-14 where the medical evidence indicates that the claimant cannot return to the job held when injured and is in need of rehabilitation services. If the claimant remains in TTD status for more than 90 days and the medical evidence is not sufficient to make a determination regarding referral, the claims examiner should then release the LS-838 to the employer/carrier to determine whether any rehabilitation effort has been initiated.