Saturday, February 16, 2019

Related Expenses in General



The Board remanded the case to the administrative law judge for a determination of whether claimant's hearing loss is work-related; if so, claimant is entitled to medical benefits for a neck injury sustained during the course of a medical examination for the hearing loss. Weber v. Seattle Crescent Container Corp., 19 BRBS 146 (1986). Where relevant evidence establishes that claimant's psychological condition was caused, at least in part, by her work injury, and that she was treated, at least in part, for her workrelated condition, claimant is entitled to benefits for this treatment. The Board also held that there is no evidence to support the administrative law judge's conclusion that the degree of claimant's pain is not sufficient to justify psychological services. The Board accordingly remanded for the administrative law judge to enter an award of medical benefits for those expenses deemed reasonable and necessary for treatment of claimant's psychological condition. Kelley v. Bureau of Nat'l Affairs, 20 BRBS 169 (1988). The Board held that the administrative law judge erred in limiting employer's liability for medical expenses only to those incurred during the period of temporary total disability. In order for medical care to be compensable, it must be appropriate for the injury, and claimant must establish that the medical expenses are related to the injury. See 20 C.F.R. §702.402. Section 7 does not require that an injury be economically disabling in order for claimant to be entitled to medical expenses, but requires only that the injury be workrelated. Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988). The Board affirmed the administrative law judge's denial of medical benefits based on his finding that claimant's surgery, a laminectomy, was unnecessary. The Board held, however, that employer is liable for compensation for disability following claimant's surgery. A physician's treatment of a work-related injury, even to the point of malpractice, does not break the causal nexus. Claimant's conduct in seeking treatment and his choice of physician were not unreasonable and neither his conduct nor the doctor’s treatment severed the causal connection between claimant's primary injury and his employment. The Board remanded for the administrative law judge to determine the nature and extent of claimant's post-operative disability. Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988). Board held that if on remand the administrative law judge determined that claimant's chronic pain syndrome was causally related to his employment, he must consider claimant's entitlement to medical benefits for the treatment rendered by Dr. Ng. An injury need only be work-related in order for claimant to be entitled to medical benefits and need not be economically disabling. Frye v. Potomac Elec. Power Co., 21 BRBS 194 (1988).


The Board affirmed the administrative law judge's finding that claimant's back problems were the natural and unavoidable result of his 1977 work injury, and claimant is therefore entitled to medical benefits, even though his claim for disability benefits was untimely. A claim for medical benefits is never time-barred. Colburn v. General Dynamics Corp., 21 BRBS 219 (1988). As pleural plaques related to work exposure to asbestos establish a work-related condition, the Board vacated the administrative law judge's finding that claimant is not entitled to reimbursement for medical expenses for periodic monitoring of this lung condition. It is not necessary that a condition be disabling or result in impairment but only that claimant have a work-related harm. Moreover, as two qualified physicians stated that medical monitoring is necessary for this condition, claimant has established a prima facie case for compensable medical treatment. The case was remanded for findings as to whether the other requirements of Section 7 were met. Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989). The Board rejected employer's argument that it is not liable for medical services which claimant obtained without authorization and because they were necessitated by claimant's second accident. As the Board affirmed the administrative law judge's conclusion that claimant's disabling condition following the second incident was related to his work injury, employer is liable for medical treatment. Moreover, claimant was released from seeking authorization due to employer’s refusal to provide treatment. James v. Pate Stevedoring Co., 22 BRBS 271 (1989). A claimant is entitled to medical benefits for a work-related injury, in this case a psychological condition as well as a physical condition, even if that injury is not economically disabling. Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990). The Second Circuit reversed the administrative law judge’s denial of medical benefits for claimant’s psychiatric condition, as it reversed the administrative law judge’s finding that the condition was not related to the work injury. The court held that the administrative law judge erred in failing to rely on the uncontradicted expert opinions of the physicians that claimant was experiencing an adjustment disorder and in substituting his judgment therefor by finding that claimant’s symptoms are merely subjective. Pietrunti v. Director OWCP, 119 F.3d 1035, 31 BRBS 84(CRT) (2d Cir. 1997). The Board vacated an administrative law judge’s order for employer to pay “all reasonable and necessary medical expenses incurred to date and…such reasonable and necessary medical care and treatment, specifically, Dr. Roger Davis' pain clinic…as the claimant's work-related injury…may require.” While the administrative law judge has the authority to order payment for already incurred medical expenses and to generally order future medical treatment for a work-related injury, the administrative law judge erred in directing ongoing future treatment at the specified pain clinic. If authorization for such care is properly requested and the care is necessary and reasonable, employer may be liable for claimant's expenses at this clinic. However, ongoing treatment must be supervised by the district director as provided in the regulations. McCurley v. Kiewest Co., 22 BRBS 115 (1989). The Board affirmed the administrative law judge's order directing employer to pay for claimant's work-related surgical fusion at C6-7, which it had denied, as the administrative law judge rationally found the procedure to be reasonable and necessary. The Board distinguished McCurley, 22 BRBS 115, on the grounds that claimant here requested authorization from employer for a single medical procedure, whereas in McCurley, the claimant sought ongoing, open-ended, non-specific treatment at a specific health care facility. Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92 (1991), aff'd mem. sub nom. Sea Tac Alaska Shipbuilding v. Director, OWCP, 8 F.3d 29 (1993). The Board affirmed the denial of medical treatment as the administrative law judge rationally concluded that claimant's work-related back condition had resolved and that subsequent treatment was not for the work injury. 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). Two claimants who had no measurable hearing impairment under Section 8(c)(13) were denied disability benefits but were awarded medical benefits and a fee. The court rejected employer's argument that since claimants had no measurable impairment, they could not receive medical benefits. Nonetheless, the court reversed claimant Buckley's award of medical benefits, noting that there was no evidence of past expenses or of a need for future treatment; since the fee award was dependent on this award, it was also reversed. With regard to claimant Baker, the court remanded for findings regarding the necessity of medical treatment, noting that one doctor recommended annual evaluations and stated claimant was "a candidate for amplification" but another found that a hearing aid would not help him. The administrative law judge was also directed on remand to consider the amount of the fee in terms of claimant's limited success. Ingalls Shipbuilding, Inc. v. Director, OWCP, [Baker], 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993). Inasmuch as claimant has a work-related hearing loss in his right ear, claimant is eligible for medical benefits under Section 7 even though claimant may have no measurable work-related impairment under the AMA Guides. In order to be entitled to medical benefits under Section 7, claimant must provide an adequate evidentiary basis sufficient to support the award such as past expenses incurred or evidence of necessary treatment in the future. In the instant case, the Board affirmed, as supported by substantial evidence, the administrative law judge's determination that since the basis for recommending the hearing device is to compensate for the hearing loss of the left ear and that condition


occurred as a result of an intervening cause wholly unrelated to any work-related hearing loss, employer could not be held liable for that proposed treatment. Davison v. Bender Shipbuilding & Repair Co., Inc., 30 BRBS 45 (1996). The Board vacated the administrative law judge’s denial of medical benefits and remanded the case to the administrative law judge to determine whether claimant is entitled to medical benefits for her work injury since there is evidence that may be sufficient to establish that she is undergoing treatment necessary for her work-related injury. Although the administrative law judge stated on reconsideration that there was no issue regarding medical benefits for him to decide because claimant presented no bills for payment, claimant’s counsel asserted employer’s responsibility for medical benefits and the administrative law judge should have addressed this issue. Buckland v. Dep’t of the Army/ NAF/CPO, 32 BRBS 99 (1997). In order to be entitled to medical benefits, a claimant need only establish he sustained a workrelated injury. A claimant need not have a ratable impairment under the AMA Guides, as application of the Guides is limited to claims for disability benefits under Section 8. Claimant here sought only medical benefits for his non-ratable work-related hearing loss, and the Board affirmed the administrative law judge’s determination that he is eligible for such benefits, if they are necessary for his injury. The Board distinguished this case from Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 (1997), which is a FELA case. While active supervision of a claimant’s medical care is performed by the Secretary of Labor and her delegates, the district directors, the Board reiterated that medical issues which involve factual disputes, as opposed to those which are purely discretionary, remain in the domain of the administrative law judge. In this case, the parties disputed claimant’s entitlement to hearing aids and the administrative law judge erred in not addressing the issue but remanding the case for the district director to do so. The Board vacated the administrative law judge’s order of remand, and remanded the case to him for a determination as to whether hearing aids are necessary and reasonable treatment for claimant’s hearing loss, as such is a factual issues for the administrative law judge. The Board rejected employer’s assertion that claimant’s alleged non-compliance with state law affected his entitlement under the Act. Weikert v. Universal Maritime Service Corp., 36 BRBS 38 (2002). The First Circuit agreed with the Board’s affirmance of the administrative law judge’s general finding that claimant is entitled to medical benefits under Section 7(a), as the record established that claimant sustained an “injury” as defined by the Act. The parties, however, may litigate the propriety and reasonableness of any specific medical expenses. Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004). The Fifth Circuit affirmed the administrative law judge’s finding that employer is liable for the cost of flu and pneumonia vaccines. The administrative law judge rationally relied on the opinion of claimant’s doctor that patients with asbestosis require such vaccines to prevent chest infections and that asbestosis increases the likelihood that one will develop pneumonia and bronchitis. This evidence is adequate to support the conclusion that these respiratory ailments are a natural result of asbestosis and that flu and pneumonia vaccines are necessary treatments for the disease. Ramsay Scarlett & Co. v. Director, OWCP, 806 F.3d 327, 49 BRBS 87(CRT) (5th Cir. 2015).

Where the parties stipulated to employer’s liability for medical benefits/hearing aids, based on the opinions of two audiologists that claimant is a candidate for hearing aids, it was erroneous for the administrative law judge to deny all medical benefits based on his finding a lack of causation. Stipulations which are not contrary to law are binding on those who enter into them, and stipulations are offered in lieu of evidence and need not be established by the record evidence. The Board reversed the administrative law judge’s denial of medical benefits. Jones v. Huntington Ingalls, Inc., 51 BRBS 29 (2017).

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