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                                   BRB Nos. 92-2291
                                     and 92-2291A

KARL REUTHER                            )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )    DATE ISSUED:   03/30/1995
                                        )
ARMY & AIR FORCE                        )
EXCHANGE SERVICE                        )
                                        )
     and                                )
                                        )
CIGNA/ESIS                              )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION and ORDER  

     Appeals of the Decision and Order - Denying Payment of Medical Expenses
     for Treatment Rendered by Dr. John Dotti, D.C., of Richard K. Malamphy,
     Administrative Law Judge, United States Department of Labor.

     Robert E. Walsh (Rutter & Montagna), Norfolk, Virginia, for claimant.

     Gerard E. W. Voyer (Taylor & Walker, P.C.), Norfolk, Virginia, for
     employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals and employer cross-appeals the Decision and Order - Denying
Payment of Medical Expenses for Treatment Rendered by Dr. John Dotti, D.C. (91-LHC-2270) 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).  The administrative law
judge's Decision and Order must be affirmed if it is 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, a safety security technician, was injured on March 16, 1988, when
he fell during the course of his employment with employer, fracturing his left
wrist, sternum, and T-11 vertebrae, as well as suffering trauma to his kidneys. 
Following this incident, claimant was treated by Dr. Nevins, an orthopedic surgeon,
who, on June 15, 1988, released claimant to return to work in a limited capacity. 
Claimant, although continuing to complain of headaches and back pain, returned to
work in June 1988 and continued to work for employer through the date of the formal
hearing.  Although Dr. Nevins continued to treat claimant, he released claimant for
unrestricted work activity on October 19, 1988.  On July 5, 1990, after noting that
he could provide no other treatment for claimant, Dr. Nevins recommended that
claimant either find a position more compatible with his physical condition or seek
help at a pain clinic.  Claimant subsequently commenced treatment for pain in his
spine, shoulder and arm with Dr. Dotti, a chiropractor, in August 1990.  In
September 1990, employer's carrier refused to pay Dr. Dotti's bill for services
rendered to claimant.   

     The sole issue before the administrative law judge was whether employer was
responsible for the charges associated with the medical treatment provided by Dr.
Dotti.  In his Decision and Order, the administrative law judge initially
determined that employer had refused further medical treatment to claimant and that
claimant was therefore entitled to payment of subsequently obtained medical
treatment if such treatment was necessary and related to his work injury.  The
administrative law judge next concluded, however, that the chiropractic treatment
provided by Dr. Dotti was not necessary; thus, the administrative law judge
rejected claimant's application for reimbursement of the medical expenses which he
incurred by treating with Dr. Dotti.

     On appeal, claimant contends that the administrative law judge erred in
concluding that Dr. Dotti's treatment was not necessary.  In its cross-appeal,
employer asserts that the administrative law judge erred in finding that employer
had refused further treatment for claimant, and had, therefore, released claimant
from further obligation to obtain employer's written consent to a change of
physicians.

     The issues raised by both parties on appeal are covered by Section 7(d) of the
Act, 33 U.S.C. §907(d), which states 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).  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 Pacific Shipyards Corp., 25
BRBS 299 (1992); Shahady v. Atlas Title & Marble Co., 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 subsequently procured was
necessary for the injury in order to be entitled to such treatment at employer's
expense. See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  When an
employer sends claimant to a physician, the physician's actions may constitute a
refusal of treatment by employer. See Matthews v. Jeffboat, Inc., 18 BRBS
185 (1986).  Section 7(d) further states that no claim for medical or surgical
treatment shall be valid against an employer unless, within ten days following the
first treatment, the physician giving such treatment furnishes to the employer and
the Secretary a report of such injury or treatment; failure to furnish the required
report within the ten day period may, however, by excused if it is found to be in
the interest of justice to do so. See Toyer v. Bethlehem Steel Corp., 28
BRBS 347 (1994)(McGranery, J., dissenting).

     We first address employer's contention that the administrative law judge erred
in finding that claimant sought prior authorization for Dr. Dotti's treatment,
which was refused, thus allowing claimant to seek further medical treatment without
employer's consent.  The administrative law judge found that through Dr. Nevins'
release of claimant from further medical treatment, employer had, in effect,
refused further medical treatment to claimant.  Moreover, the administrative law
judge determined that, although a controversy existed as to whether claimant
specifically requested authorization for treatment by Dr. Dotti prior to commencing
that treatment, it was undisputed that within 45 days of claimant's initial
treatment, Dr. Dotti submitted a request for payment to employer and that request
was denied. See EXS 14, 17; Decision and Order at 12.  Based upon these
findings, the administrative law judge concluded that authorization had been sought
by claimant and refused by employer and, therefore, claimant was entitled to
payment of Dr. Dotti's expenses if his treatment was necessary.

     After review of the record, we hold that the administrative law judge's
conclusion that authorization had been sought by claimant and denied by employer
is supported by substantial evidence, is rational, and is in accordance with law. 
33 U.S.C. §921(b)(3); O'Keeffe, 380 U.S. at 359; see generally
Slattery Associates, Inc. v. Lloyd, 725 F.2d 780, 16 BRBS 44 (D.C. Cir.
1984).  Specifically, we note that it is uncontroverted that employer, on September
25, 1990, effectively denied authorization when it declined to pay Dr. Dotti's
bill. See EX 17.  Moreover, it is uncontested that claimant, on July 5,
1990, was released by Dr. Nevins, who opined that there was no further medical
treatment which would be of any help to claimant's condition.  As both of these
events constitute substantial evidence to support the administrative law judge's
determination that authorization was requested by claimant and refused by employer,
we affirm the administrative law judge's determination that claimant is entitled
to reimbursement for the expenses of Dr. Dotti so long as that physician's
treatment was necessary. See Anderson, 22 BRBS at 22. 

     Claimant, in his appeal, challenges the administrative law judge's subsequent
finding that the treatment provided by Dr. Dotti was not necessary.[1]   In his decision, the administrative law judge
denied claimant's request for reimbursement of Dr. Dotti's medical charges based
upon his conclusion that the record did not substantiate a finding that there had
been a misdiagnosis by Dr. Nevins which required the treatment rendered by Dr.
Dotti.  Whether treatment is compensable, however, is not dependent on whether
there has been a misdiagnosis by a prior physician; rather the question to be
addressed is whether the treatment was necessary. See Anderson, 22 BRBS at
20.  As such, whether such treatment obtained by claimant was necessary is a
factual issue within the administrative law judge's authority to resolve. See
Wheeler v. Interocean Stevedoring Co., 21 BRBS 33 (1988).

     In the instant case, although the administrative law judge set forth
claimant's testimony that Dr. Dotti's treatment provided relief and enabled him to
continue working, see Decision and Order at 7, the administrative law judge
did not address this testimony in considering this issue.  Moreover, the
administrative law judge did not discuss whether claimant had a subluxation of the
spine and whether Dr. Dotti's treatment was necessary for such a condition. 
Rather, the administrative law judge based his conclusion solely on a finding that
no misdiagnosis had been rendered by Dr. Nevins prior to the commencement of Dr.
Dotti's treatment.  We hold that the administrative law judge erred in utilizing
this improper standard.  The administrative law judge's finding on this issue must
be vacated, and the case remanded to the administrative law judge to determine if
Dr. Dotti's treatment was reasonable and necessary using the proper standard.  If,
on remand, the administrative law judge concludes that Dr. Dotti's treatment was
necessary, he must also determine for which part of Dr. Dotti's bill employer may
be responsible as, under the Act, an employer is only responsible for a
chiropractic's manipulations for a spinal subluxation. See 20 C.F.R.
§702.404.

     Lastly, employer contends that no claim is valid against it because Dr. Dotti
failed to furnish to it a report of claimant's injury and treatment.  Section
7(d)(2) of the Act states that an employer is not liable for medical expenses
unless, within 10 days following the first treatment, the physician rendering such
treatment provides the employer with a report of that treatment. See 33
U.S.C. §907(d)(2) (1988).  However, in the interest of justice, the Secretary
may excuse the failure to comply with the provisions of this section.  33 U.S.C.
§907(d)(2) (1988); see generally Roger's Terminal & Shipping Corp. v.
Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT)(5th Cir. 1986), cert.
denied, 479 U.S. 826 (1986); Force v. Kaiser Aluminum & Chemical Corp.,
23 BRBS 1 (1989), aff'd in pert. part, 938 F.2d 981, 25 BRBS 13 (CRT)(9th
Cir. 1991).  The Board has adopted the Director's interpretation that, under
Section 7(d)(2) and its implementing regulation, Section 702.422(b), 20 C.F.R.
§702.422(b)(1994), the Secretary's authority to determine whether "the
interest of justice" warrants excusing the failure to comply with the provisions
of Section 7(d)(2) is delegated solely to the Director and her delegates, the
district directors. See Toyer, 28 BRBS at 347.  Therefore, the Board held
that the district director, and not the administrative law judge, has the authority to determine whether non-compliance with Section 7(d)(2) should
be excused. Id.

     In the instant case, the administrative law judge did not address employer's
contention, raised below, that Dr. Dotti failed to comply with the reporting
requirements of Section 7(d)(2).  Should the administrative law judge on remand
find that claimant is entitled to reimbursement of Dr. Dotti's charges but that the
required reports were not filed, the case must be further remanded to the district
director to determine if such a failure should be excused under the terms of
Section 7(d)(2) of the Act and Section 702.422(b) of the regulations. See
Krohn v. Ingalls Shipbuilding, Inc.,    BRBS    , BRB No. 91-1744 (Dec. 28,
1994)(McGranery, J., dissenting); Toyer, 28 BRBS at 347.

     Accordingly, the administrative law judge's Decision and Order - Denying
Payment of Medical Expenses for Treatment Rendered by Dr. John Dotti, D.C., is
affirmed in part, vacated in part, and remanded to the administrative law judge for
further consideration consistent with this opinion.

     SO ORDERED.



                                                                        

                         BETTY JEAN HALL, Chief 
                         Administrative Appeals Judge                           


                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge  

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Footnotes.


1)We note that Section 702.404, 20 C.F.R. §702.404, provides that chiropractors are included in the definition of the term "physician" within the meaning of Section 7, subject to the limitation that their services are reimbursable only for "treatment consisting of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings." See 20 C.F.R. §702.404. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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