Section 7(b) (33 U.S.C. 907(b)) of the U.S. Longshore and Harbor Workers’ Compensation Act states, in no uncertain terms, “The employee shall have the right to choose an attending physician …”
Section 7(b) goes on to say, “The Secretary shall actively supervise the medical care rendered to injured employees … and may, on his own initiative or at the request of the employer, order a change of physicians or hospitals when in his judgment such change is desirable or necessary in the interest of the employee …”
Section 7(c)(2) states, “An employee may not change physicians after his initial choice unless the employer, carrier, or deputy commissioner has given prior consent for such change … Consent may be given upon a showing of good cause for change.”
Note: The “Secretary” (of Labor) has delegated Section 7’s active supervision of medical care role to the Director, Office of Workers’ Compensation Programs, who has in turn delegated it to the District Directors (formerly Deputy Commissioners) of the Division of Longshore and Harbor Workers’ Compensation.
There are two tests for approving a change of treating physician:
When exactly does each test apply? How are the conditions for their application determined? Is one test more demanding than the other? And what does “good cause” mean anyway?
Note: There are other instances where a change of treating physician is authorized that do not depend on either the “desirable or necessary” or “good cause” tests. For example, consent for change “shall” be given in cases “where an employee’s initial choice was not of a specialist whose services are necessary …”
A recent case offered the opportunity to distinguish between implementation of the two change of physician tests in Section 7(b) and Section 7(c)(2).
The case of Ports American Louisiana, Incorporated v. Director, Office of Workers’ Compensation Programs; Alexander Scott, Fifth Circuit, January 23, 2018 (Unpublished), involves an employee who was referred by his employer to the “employer’s” doctor for treatment following his injury. The injured worker continued to treat with this doctor for nearly six months, and thus this doctor was the worker’s choice of treating physician by acquiescence of the injured worker.
After almost six months the doctor was of the opinion that the employee was at maximum medical improvement, that no further treatment was necessary, and that the employee should go back to work.
The employee did not go back to work. He went to a different doctor, who did not share the other doctor’s opinion about the employee returning to work.
At this point, the employer stopped paying compensation and disputed any additional liability for medical treatment.
The employee requested an informal conference with the District Director at the U.S. Department of Labor (DOL). The District Director found that the worker was entitled to change his treating physician because his initial choice had “effectively discharged” him by “refusing” further medical treatment. He ordered a change on the basis of section 7(b)’s “desirable or necessary” standard.
Note: The DOL District Directors, and not the Administrative Law Judges, have the authority to rule on this change of physician issue in the role of actively supervising medical care. Appeals go directly to the DOL’s Benefits Review Board (BRB), where the standard of review is abuse of discretion.
The employer argued on appeal that the “desirable or necessary” standard should not have been used in this case but that the (presumably more demanding?) “good cause” standard of Section 7(c)(2) should have been used.
The final result in this case is a bit of a disappointment. The federal Fifth Circuit Court of Appeals found that the District Director’s Order, affirmed by the BRB, was not an abuse of discretion under either the “desirable or necessary” standard or the “good cause” standard. The District Director’s Order approving the change of physician was affirmed without any discussion as to how and when each standard should be applied. We also did not get anything resembling a useful definition of “good cause” – or, for that matter, a discussion of the reasons why this action was not an abuse of discretion or what might constitute such an abuse.
It is worth noting that, as a practical matter, the DOL District Directors virtually always use Section 7(b)’s “desirable or necessary” standard in change of physician cases when a) the employee requests the change, b) the employer/carrier requests the change, and c) the District Director raises the issue on his own.
The only specific instances of the application of the “good cause” standard, in my opinion, have been in cases where the employee’s initial choice of treating physician either retired or otherwise became unavailable.
One question comes to mind in light of this case. In any instance where the injured worker is referred by the employer to a doctor for treatment and that “employer” doctor becomes the treating physician, is the worker assured of a free change in every case when the treating physician concludes that the employee can go back to work?
Going one step further, is it appropriate to conclude that the employee may “shop” for another doctor in every case where the initial treating physician concludes that no further treatment is necessary?
This potential problem is left to the District Directors to manage, and they have wide discretion in resolving change of treating physician issues.
Update published on October 4, 2018:
As an update to the original decision in the case of Jerry A. Jarrett, Sr. v. CP&O, LLC, 51 BRBS 41, (2017) discussed above, the BRB has granted the employer’s motion for reconsideration and has issued a new decision (BRB No. 17-0384, June 29, 2018).
The result has not changed. The ALJ’s decision is reversed (he had found that the employee’s injury was the result of his willful intent to injure himself and that the employer had rebutted the section 20(d) presumption to the contrary). Thus, the ALJ had denied benefits under section 3(c).
Rather than finding that there was no “evidence” of any kind presented by the employer, the BRB is of the opinion that the evidence did not support the inferences drawn by the ALJ. This reasoning is more consistent with the BRB’s standard of review. The employer still loses.
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.