Appendix — Atlas Tile & Marble Co. v. Shahady

(i)

TABLE OF APPENDICES

APPENDIX A Court of Appeals Order Granting Motion

for Reconsideration of Decision Not to

i 1.6.00566606600000000000600000 coceees la

APPENDIX B Court of Appeals Order Denying Sugges-

tion for Rehearing En Banc ................... 3a

PITT TTTTTTT TTT Tee Sa

SEED Kencedccecoceccecesococceccee coccece 6a

APPENDIX E Court of Appeals Decision on Petition

for Review of an Order of the Benefits

TD -itte00060660660660600 6006004 7a

APPENDIX F Court of Appeals Decision on Motion of

Director, OWCP to Amend and Reform

RE 12a

APPENDIX G Benefits Review Board Decision .............. 2Sa

APPENDIX H _ Dissenting Opinion of Administrative Ap-

peals Judge Miller... .........c0ccesceceeees 38a

APPENDIX I Administrative Law Judge’s Decision ......... 44a

APPENDIX J Lioyd v. Sl.utery Assocation, Inc.

BRB No. 80-S1S .. 2... ccc nee eens Sia

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818 September Term, 1981

James R. Shahady,

Petiti

v.

Atlas Tile & Marble Company

and Uatted States ( cert of

Hartford Accident & Indemnity Co., tur Go oun ot

and ( ofeenbes (orcett

Director, Office of Workers’ Compensation ““*?”?'™

Programs, GEORGE ~ FISHER

Respondents

BEFORE: MacKinnon, Edwards and Ginsburg, Circuit

Judges

ORDER

Upon consideration of respondent's (Director, Office of

Workers’ Compensation Programs) motion for recon-

sideration of decision not to publish memorandum opi-

nion, it is

ORDERED, by the Court, that the aforesaid motion for

reconsideration is granted. The memorandum opinion will

2a

be published and the Clerk shall take such action as is

necessary to bring this about.

Per Curiam

FOR THE COURT:

/s/

GEORGE A. FISHER

Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818 September Term, 1981

ARGUED 5-17-82

James R. Shahady,

Petiti

v.

Atlas Tile & Marble Company

and | ated States ( oer of

Hartford Accident & Indemnity Co., a

and ( olembee Corcett

Director, Office of Workers’ Compensation ‘"*?'’"*'®

Programs, ae -~ ten

Respondents

BEFORE: Robinson, Chief Judge; Wright, Tamm,

MacKinnon, Wilkey Wald, Mikva, Edwards, Ginsburg

and Bork, Circuit Judges

ORDER

Respondents’ suggestion for rehearing en banc has been

circulated to the full Court and no member of the Court

has requested the taking of a vote thereon. On considera-

tion of the foregoing, it is

da

ORDERED by the Court en banc that the aforesaid sug-

gestion is denied.

Per Curiam

FOR THE COURT:

GEORGE A. FISHER

Clerk

BY: /s/

Robert A. Bonner

Chief Deputy Clerk

Sa

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818 September Term, 1981

ARGUED 5-17-82

James R. Shahady,

Petitioner

Vv.

Atlas Tile & Marble Company

and | ented Seater ( cert of

Hartford Accident & Indemnity Co., a. a

and ( obemb, Ciecen

Director, Office of Workers’ Compensation "*?”"*'™

Programs, A FISHER

Respondents

BEFORE: MacKinnon, Edwards and Ginsburg, Circuit

Judges

ORDER

On consideration of respondents’ petition for rehearing,

filed July 2, 1982, it is

ORDERED by the Court that the aforesaid petition is

denied

Per Curiam

FOR THE COURT:

GEORGE A. FISHER

Clerk

BY: /s/

Robert A. Bonner

Chief Deputy Clerk

6a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818 September Term, 1981

James R. Shahady,

Petitioner

Vv.

Atlas Tile & Marble Company United States Court of

Hartford Accident & Indemnity tor too Dann of

Company and Director, Office of a

Workers’ Compensation Programs, ae

United States Department of Labor, —

Respondents

BEFORE: MacKinnon, Edwards and Ginsburg, Circuit

Judges

ORDER

It is ORDERED by the Court, sv@ sponte, that the cap-

tion in the judgment and memorandum opinion issued

June 4, 1982, in No. 81-1818 be, and it hereby is, amended

to add the Director, Office of Workers’ Compensation

Programs, United States Department of Labor, as a nam-

ed respondent. See Shahady v. Atlas Tile & Marble, et al.,

No. 81-1818 D.C. Cir. February 26, 1982).

Per Curiam

FOR THE COURT:

GEORGE A. FISHER

Clerk

BY: /s/

Robert A. Bonner

Chief Deputy Clerk

Ta

APPENDIX E

This is subject to formal revision before publication

opinion ore

to notify the

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818

JAMES R. SHAHADY, PETITIONER

Vv.

ATLAS TILE & MARBLE COMPANY, HARTFORD ACCIDENT &

INDEMNITY COMPANY, and DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS *

Petition for Review of an Order of the

Benefits Review Board

———e

Argued May 17, 1982 | Judgment — '

Decided June 4, 1982 | «gti? *=** |

* The caption in this case was reformed in accordance with

a decision of this Court that the Director of the Office of

Workers’ Compensation Programs of the United States De-

partment of Labor should be a named respondent in all Bene-

fits Review Board review proceedings. See Shahady v. Atlas

Tile & Marble Co., 673 F.2d 479 (D.C. Cir. 1982).

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

8a

Wayne M. Mansulla for petitioner.

William P. Dale for respondents Atlas Tile & Marble

Company and Hartford Accident & Indemnity Company.

Marianne Demetral Smith, Attorney, Department of

Labor, with whom T. Timothy Ryan, Jr., Solicitor of

Labor, and Donald S. Shire, Associate Solicitor, were on

the brief, for respondent Director, Office of Workers’

Compensation Programs.

Before: MACKINNON, EpWARns, and GINSBURG, Cir-

cuit Judges.

Per Curiam:' James R. Shahady has petitioned this

court under the Longshoremen’s and Harbor Workers’

Compensation Act (“the Act”), 33 U.S.C. §§ 901 et seq.,

as applied to the District of Columbia, D.C. Code §§ 36-

501 et seq.,? for review of an order of the Benefits Review

Board (BRB) of the Department of Labor. The BRB,

with one of the three administrative appeals judges dis-

senting, affirmed the decision of an administrative law

judge (ALJ) denying Shahady’s claim against his em-

ployer and its insurance carrier for medical expenses

incurred as a result of a knee injury sustained in the

course of employment. Shahady maintains that he is

entitled under the Act to benefits covering treatment

rendered by three physicians whose services he procured

after his discharge by the doctor furnished by his em-

ployer.’ We agree.

' This opinion originally issued as a memorandum accom-

panying a judgment order; it is published at the request of

the Director of the Office of Workers’ Compensation Pro-

grams.

* Application of the Act to the District of Columbia has

now been superseded by 36 D.C. Code §§ 301 et seq. (1981).

See District of Columbia v. Greater Washington Central

Labor Council, 442 A.2d 110 (D.C. 1982).

* Petitioner clarified at argument that he does not seek

benefits covering medical expenses he incurred prior to his

9a

Under section 7(d) of the Act, 33 U.S.C. § 907(d), an

employee is not entitled to reimbursement for medical

treatment or services unless he has requested his em-

ployer to furnish or authorize such treatment or services,

and the employer has refused or neglected to do so.

Shahady testified that he requested further treatment

from Dr. Gibson, the surgeon who attended to his knee

injury pursuant to the reference of his employer’s in-

surance carrier. According to Shahady, Dr. Gibson told

him “{he) was fine,” “there was nothing wrong with

{his} leg,” and “to come back and see him in a year.”

Joint Appendix (J.A.) 91. Dr. Gibson acknowledged that

he performed a final exam and discharged Shahady from

continuing care, J.A. 108, but stated he would have seen

petitioner for “[a]s long as he wanted to come.” J.A.

107-108.

Taking into account the settled rule that in cases of

this nature, “[d]oubts, including the factual, are to be

resolved in favor of the employee,” Wheatley v. Adler,

407 F.2d 307, 314 (D.C. Cir. 1968) (en banc), we con-

clude that Shahady’s claim fits securely within judicial and

BRB precedent interpreting section 7(d) to authorize ben-

efits for necessary medical treatment an injured employee

procures after discharge by an employer-furnished phy-

sician. When an employee is told by the employer’s phy-

sician that “he is recovered from his injury and requires

no further treatment, he has, in effect, been refused

treatment by the employer,” and is therefore entitled

to reimbursment for all necessary treatment subsequently

procured on his own initiative. Atlantic & Gulf Steve-

dores, Ine. v. Newman, 440 F.2d 908, 911 (5th Cir. 1971).

See Buckhaults v. Shippers Stevedore Co., BRB No. 75-

132, 2 BRBS 277 (1975); see also Walker v. AAF Ex-

change Service, BRB No. 76-185, 5 BRBS 500 (1977);

Kilson v. Sun Shipbuilding & Dry Dock Co., BRB No.

treatment by the surgeon to whom he was sent by his em-

ployer’s insurance carrier.

10a

75-127, 2 BRBS 172 (1975). The BRB offered no

cogent explanation for its apparent departure from this

precedent.

We emphasize that the ALJ specifically found the

treatment independently procured by Shahady within but

a few months of Dr. Gibson’s discharge “necessary” and

“causally related” to petitioner’s injury. J.A. 33. These

findings are not disputed by the employer or its carrier;

they appear irreconcilable with the ALJ’s determination

that Dr. Gibson’s discharge of Shahady from continuing

care did not operate as a refusal by the employer to

provide the necessary care required under the Act. See

Washington v. Cooper Stevedoring Co., BRB No. 75-237,

3 BRBS 474, 479 (1976), aff'd on other grounds, 556

F.2d 268 (5th Cir. 1977) (misdiagnosis by the discharg-

ing physician is the “equivalent of a refusal of treatment

by the employer’).

We recognize that fact findings made in the adminis-

trative proceedings must be accepted unless unsupported

by substantial evidence. See Voris v. Eikel, 346 U.S. 328,

333-34 (1953). On the record considered as a whole,

however, we firmly conclude that the ALJ’s determina-

tion that Shahady was not refused necessary treatment

is unsupported by substantial evidence. We further con-

clude that, in sustaining this unsupported determination

without distinguishing its own precedent pointing in the

opposite direction, the BRB failed to act in accordance

with basic tenets of administrative law. See Columbia

Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1025-

26 (D.C. Cir. 1971). We therefore do not reach the ques-

tion whether, in the absence of a refusal attributable to

the employer to provide necessary medical treatment, the

Act would have required Shahady to request his em-

ployer’s authorization for the medical services in ques-

tion. See 33 U.S.C. § 907(b), (d).

Finally, the ALJ refused to exercise his statutory dis-

cretion to excuse the apparent failure of Shahady’s doc-

tors to comply with the Act’s requirement that a report

be filed with the employer within ten days following the

first treatment. 33 U.S.C. §907(d). However, as the

BRB’s own precedent again makes clear, failure to file a

timely report should be excused where medical services

are otherwise reimbursable due to the employer’s re-

fusal to provide necessary further treatment. Buckhaults,

supra at 280. In light of our determination that Shahady

is entitled to reimbursement under section 7(d), the ALJ’s

refusal to excuse the report-filing lapse constitutes an

abuse of discretion.

For the reasons stated, the order on review is

reversed.

So ordered.

12a

APPENDIX F

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1818

JAMES R. SHAHADY, PETITIONER

Vv.

ATLAS TILE & MARBLE Co. and

HARTFORD ACCIDENT & INDEMNITY CO., RESPONDENTS

On Motion of Director, Office of Workers’

Compensation Programs, to Amend and

Reform Caption

Argued December 3, 1981 | Judgment —

Decided February 26,1982 | <== —

Wayne M. Mansulla for petitioner.

William P. Dale for respondents.

Mark C. Walters, Attorney, Department of Labor,

for movant Director, Office of Workers’ Compensation

Programs.

Before: WALD, MIKVA and Epwarps, Circuit Judges

Opinion Per Curiam.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

13a

PER CURIAM: We decide here a discrete but important

question: whether the Director of the Office of Workers’

Compensation Programs (“DOWCP” or “Director”) within

the Department of Labor is a proper respondent to a

petition for review of a decision of the Benefits Review

Board (“BRB” or “Board”) brought under section 21(c)

of the Longshoremen’s and Harbor Workers’ Compensa-

tion Act (“LHWCA” or “Act”), 33 U.S.C. § 921(c),'

when the Director aligns himself with petitioner urging

reversal of the Board’s order. Because the statutory

scheme of the LHWCA and regulations promulgated

thereunder clearly contemplate that the Secretary or his

delegate shall participate as a matter of course in section

921(c) review proceedings, we hold the Director should

be named a party-respondent in all review proceedings

brought under section 921(c), whether or not the Di-

rector supports the Board’s order. Accordingly, we grant

the Director’s motion to amend and reform the caption

in No. 81-1818.

I. BACKGROUND

Petitioner James R. Shahady filed an administrative

claim against his employer Atlas Tile & Marble and its

' Section 921(c) provides, in pertinent part:

Any person adversely affected or aggrieved by a final

order of the Board may obtain a review of that order in

the United States court of appeals for the circuit in which

the injury occurred, by filing in such court within sixty

days following the issuance of such Board order a written

petition praying that the order be modified or set aside.

A copy of such petition shall be forthwith transmitted

by the clerk of the court, to the Board, and to the other

parties, an \ thereupon the Board shall file in the court

the record in the proceedings as provided in section 2112

of Title 28. Upon such filing, the court shall have juris-

diction of the proceding and shall have the power to give

a decree affirming, modifying, or setting aside, in whole

or in part, the order of the Board and enforcing same to

the extent that such order is affirmed or modified.

l4a

insurance carrier Hartford Accident & Indemnity for re-

imbursement of medical expenses for a second knee op-

eration following a fall Shahady suffered in 1975 while

employed by Atlas Tile as a marble mason. The Ad-

ministrative Law Judge denied Shahady's claim in its

entirety on November 29, 1979. The Benefits Review

Board affirmed on June 11, 1981, with one judge dis-

senting. BRB No. 79-724, Case No. 79-DCWC-252. The

Director did not actively participate at either stage of

the administrative proceedings. Shahady filed a petition

for review on July 22, 1981, D.C. Cir. No. 81-1818, nam-

ing as respondents only Atlas Tile & Marble and Hart-

ford Accident & Indemnity.

The Director, Office of Workers’ Compensation Pro-

grams, moved on August 12 to amend and reform the

caption in No. 81-1818 to add as party-respondent the

DOWCP. In support, the Director relies in general on

the Secretary's delegation to the Director of the Secre-

tary’s duties of implementation, administration, and en-

forcement of the LHWCA. Specifically, the Director

relies on 20 C.F.R. § 802.410(b), which provides that the

DOWCP “shall be deemed to be the proper party on be-

half of the Secretary of Labor in all review proceedings

conducted pursuant to section 21(c) of the LHWCA.”

The Supreme Court appears to have approved this reg-

ulation in Northeast Marine Terminal Co. v. Caputo,

432 U.S. 249 (1977). There, the Court interpreted this

regulation to “mak{e| it clear that the Director of OWCP

is the proper federal party in a case of this nature.” 432

US. at 256 n.11.

The named respondents present a host of arguments

in opposition to the Director’s position. Respondents first

announce that the Director’s real intent in this case is

to intervene on behalf of petitioner Shahady wthout hav-

ing taken any active part in the two-step proccedings

within the Department of Labor. They argue that, as

a movant for leave to intervene, the DOWCT must sat-

1Sa

isfy the requirement of Fed. R. App. P. 15(d) (motion

shall contain a concise statement of interest of movant

and grounds upon which intervention is sought), as well

as notions of “respondent standing” derived from [TO

Corp. of Baltimore v. BRB, 529 F.2d 1080, 1089 (4th

Cir. 1975), refusal to substitute Director as respondent

affirmed as amplified upon rehearing en banc, 542 F.2d

903, 906-09 (1976), cert. denied, 433 U.S. 908 (1977).

Neither the statutory scheme nor the regulation re-

lied on by the Director impresses respondents. They

concede only that if there were to be “a federal repre-

sentative on appeal” the DOWCP would be the appropri-

ate federal representative because of his general enforce-

ment responsibilities under the Act. Concerning the reg-

ulation, 20 C.F.R. § 802.410(b), rspondents argue that

it “does nothing more than clarify who is to represent

the Secretary of Labor in appropriate circumstances, not

to define those circumstances.” They conclude that neither

statute nor regulation automatically confers upon the

DOWCP the status of party-respondent in all section

921(c) review proceedings. Rather, the Director must

in each case demonstrate either that the Director’s par-

ticipation is necessary for proper administration of the

Act or that the government was a party adverse before

the Board. Respondents argue that in this case, the Di-

rector can show neither and therefore, that the Director’s

motion to amend the caption and any other attempt to

participate in the case should be denied.

In reply, the Director cites Fed. R. App. P. 15(a): “In

each case the agency shall be named respondent.” Al-

though acknowledging that the drafters of Rule 15(a)

did not anticipate this precise situation, the Director

assumes that the premise underlying the rule—that there

must be @ federal respondent in agency review proceed-

ings—applies here. Because the Board is not a proper

respondent in a section 921(c) review proceeding, Mc-

Cord v. Benefits Review Board, 514 F.2d 198 (D.C. Cir.

16a

1975), it follows by process of elimination that the

DOWCP must be the proper federal respondent.

This important procedural issue has surprisingly not

yet been decided in this court despite the frequency with

which we are faced with petitions for review of orders

of the Benefits Review Board.

II. DiIscussION

At the outset we acknowledge that no authority easily

disposes of this motion. The statutory scheme and reg-

ulation upon which the DOWCP principally relies do not,

in so many words, resolve this issue; the Supreme Court’s

statement on this point is also equivocal. The legislative

history is unhelpful. Finally, Rule 15(a), if it applies

at all, begs the question. Thus it is not surprising that

the circuits have split almost evenly as to the proper

role of the Director and Board in section 921(c) proceed-

ings.*, We now join the majority in holding that the Di-

rector should be named as federal respondent in all cases

brought under section 921(c). We do so because we are

convinced that this result is not only consonant with the

legislative and regulatory scheme but comports best with

common sense.

? The decisions of court of appeals run the entire gamut of

possibilities. The Director has been held to be a proper re-

spondent by the Third and Fifth Circuits, Krolick Contracting

Corp. v. Benefits Review Board, 558 F.2d 685, 689-90 (Sd Cir.

1977) (Black Lung Benefits Act only) ; United Brands Co. v.

Melson, 569 F.2d 214, 217 (Sth Cir. 1978), held to be im-

proper by the Fourth, ITO Corp. of Baltimore v. Benefits Re-

view Board, 542 F.2d 903 (4th Cir. 1976) (en hance), cert.

denicd, 423 U.S. 908 (1977), and believed to be improper by

the Second, Pittston Stevedoring Corp. v. Dellaventura, 544

F.2d 35, 42-43 n.5 (2d Cir.), aff'd sub nom. Northeast Marine

Terminals Co. v. Caputo, 432 U.S. 249 (1976). For the split

over the question of the Board's role, sce note 9 infra: con-

cerning the split over whether the Director has standing to

file a petition for review, see note 6 infra.

17a

That Congress intended the Secretary to play an active

role in implementing, administering and enforcing the

LHWCA is manifest from a reading of the Act. See

especially, 33 U.S.C. § 939. The Secretary has permissibly

delegated this broad authority and substantial responsi-

bility to the Director of the Office of Workers’ Com-

pensation Programs. 20 C.F.R. §§ 701.201, 701.202(a).*

Because we believe the Director’s central role in the legis-

lative and regulatory scheme dictates in large part our

result to grant the Director automatic status as federal

party-respondent, we will briefly journey through the ad-

ministrative and judicial review processes under the

amended LHWCA and its regulations.

Claims under the Act are brought first to a deputy

commissioner who, if necessary, may investigate the

claim and order a formal hearing before an administra-

tive law judge. 33 U.S.C. §919(c), (d). Under section

939(c) (1),

The [Director] shall, upon request, provide per-

sons covered by this chapter with information and

assistance relating to the chapter’s coverage and

compensation and the procedures for obtaining such

compensation and including assistance in processing

a claim. The [Director] may, upon request, provide

persons covered by this chapter with legal assistance

in processing a claim. The [Director] shall also pro-

vide employees receiviiug compensation information

on medical, manpower, and vocational rehabilitation

services and assist such employees in obtaining the

best such services available.

* Rut see 20 C.F.R. §1.2(d) (“[T]he Assistant Secretary

has delegated authority and assigned responsibility to the

Director, OWCP for the Department of Labor’s programs

under the following statutes: .. . (d) Longshoremen’s and

Harbor Workers’ Compensation Act... except 921 as it applies

to the Benefits Review RBoard.”) (emphasis added). The

language of this regulation openly conflicts with 20 C.F.R.

§ 802.410. We disregard the earlier regulation to the extent

§ 802.410 negates it.

18a

Should a formal hearing be held, the Director (repre-

sented by the Solicitor of Labor) may appear and partici-

pate as “an interested party” as a matter of right.

20 C.F.R. § 702.333.

The Benefits Review Board is “authorized to hear and

determine appeals raising a substantial question of law

or fact taken by any party in interest from decisions

with respect to claims of employees under this chapter

and the extensions thereof.” 33 U.S.C. § 921(b) (3). The

Secretary’s regulations make it clear that the Director is

considered a party before the Board, whether or not the

DOWCP actively participated in any formal hearing, and

whether or not the Director is adversely affected thereby.

20 C.F.R. § 802.201(a) (“Any party adversely affected

by a decision or order pursuant to [the LHWCA] may

appeal . . . to the Board by filing a notice of appeal

.. ."), id. §$ 801.2110) (defining “party” as “the Sec-

retary or his designee and any person or business entity

directly affected by the decision or order from which

an appeal to the Board is taken.” Emphasis added.).

Review of final orders of the Board is had in the ap-

propriate court of appeals upon the timely filing of a

petition for review by “any person adversely affected or

aggrieved” by such order. 33 U.S.C. §921(c).* The

Act, somewhat ambiguously, provides as well that

Attorneys appointed by the Secretary shall rep-

resent the Secretary, the deputy commissioner, or

the Board in any court proceedings under section

921 of this title or other provisions of this chapter

except for proceedings in the Supreme Court of the

United States.

* See note 1 supra. The Secretary's regulation provides that

only a party adversely affected or agyrieved by the order

of the Board may file a petition for review. 20 C.F.R.

§ 702.410(a).

19a

33 U.S.C. § 921(a). The Secretary’s regulation, however,

specifically states that

The Director, OWCP as designee of the Secretary

of Labor responsible for the administration and en-

forcement of the [Act], shall be deemed to be the

proper party on behalf of the Secretary of Labor in

all review proceedings conducted pursuant to section

21(c) of the LHWCA.

20 C.F.R. § 802.410(b). We believe the Secretary’s regu-

lation to be a clear and definite statement, consistent

with the intent of the Act to allow the Director (as the

Secretary’s delegate) to participate at each stage of ad-

ministrative and judicial review in order to ensure proper

and consistent administration of the Act.®

®’ We read § 92la simply to indicate that attorneys within

the Department of Labor should represent Department officials

involved in § 921(c) review proceedings, be it the Secretary

(Director), deputy commissioner, or Board. Before the 1972

amendments, claims were brought before deputy commis-

sioners. Judicial review was had by writ of injunction against

the deputy commissioner in district court, with a right of

appeal to the court of appeals. 33 U.S.C. §921 (1970);

DOWCP v. National Van Lines, 613 F.2d 972, 976 n.1 (D.C.

Cir. 1979), cert. denied, 448 U.S. 907 (1980). The United

States Attorney in the judicial district in which the case was

pending represented the Secretary or deputy commissioner

in district court and on sppeal where either was a party to the

case or an interested party. 33 U.S.C. §921a (1970). See

United Brands Co. v. Melson, 569 F.2d 214, 216 (5th Cir.

1978) (single-judge panel) (citing §921la as evidence that

the LHWCA “appears to contemplate government participa-

tion in review litigation”), Pittston Stevedoring Corp. v.

Dellaventura, 544 F.2d 35, 42-43 n.§ (2d Cir.) (dictum)

(same), aff'd sub nom, Northeast Marine Terminal Co. v.

Caputo, 432 U.S. 249 (1976). But ef. Prolerized New England

Co. v. Benefits Review Board, 637 F.2d 30, 40-41 (1st Cir.

1980) (denying without prejudice DOWCP’s motion to dis-

miss Beard as party-respondent: “[T]he idea that the Board

would appear in review proceedings under § 921 evidently was

not wholly foreign to Congress, since at the same time it

20a

This court has previously held that the Director’s

general supervisory and enforcement interest, apart from

any pecuniary interest, is sufficient to confer upon the

Director standing to file a petition for review under

section 921(c). DOWCP v. National Van Lines, 613 F.2d

972, 977 n.6 (D.C. Cir. 1979), cert, denied, 448 U.S. 907

(1980).* We hold today that this interest as expressed

in the legislative and regulatory scheme, and especially

in 20 C.F.R. § 802.410(b), entitles the Director to par-

ticipate as party-respondent as a matter of course in all

section 921(c) petitions.’ We note that the only state-

created the Board, Congress amended §92la ... .”), cert.

denied, 101 S. Ct. 3080 (1981); ITO Corp. of Baltimore v.

Benefits Review Board, 542 F.2d 903, 906 (4th Cir. 1976)

(en banc) (§ 921a begs the question), cert. denied, 433 U.S.

908 (1977).

The Secretary's regulation is the only sensible construction

of the current § 921a in light of this and other courts’ holdings

that the Board (and a fortiori the deputy commissioner) is

an improper respondent. See McCord v. Benefits Review

Board, 514 F.2d 198 (D.C, Cir. 1975), and cases cited at note

9 infra.

* cf. DOWCP v. Eastern Coal Corp., 561 F.2d 632, 645 (6th

Cir. 1977) (administrative interest of Director in enforcing

Black Lung Benefits Act sufficient to confer standing) ;

DOWCP v. Alabama By-Products, 560 F.2d 710, 715-17 (5th

Cir. 1977) (same) ; DOWCP v. Peabody Coal Corp., 554 F.2d

310, 332-38 (7th Cir. 1977) (same). Contra DOWCP v. RBeth-

lehem Steel Corp., 620 F.2d 60, 63 (5th Cir. 1980) (no admin-

istrative interest in litigating issues concerning proper allo-

cation of burdens of proof and persuasion under LITWCA) ;

Fusco v. Perini North River Assocs., 601 F.2d 659, 660 (2d

Cir. 1979) (no administrative interest under LITWCA), va-

cated and remanded on other grounds, 444 U.S. 1028 (1980) ;

DOWC? vy. Donzi Marine, Inc., 586 F.2d 377, 381-82 (5th Cir.

1978) (no administrative interest under LIIWCA; distin-

guishes Black Lung Benefits Act cases).

7 Two possible objections that come to mind may be quickly

dismissed, First, the DOWCP did not actively participate at

either stage of the administrative proceedings, although en-

titled to do so by regulation. Generally, failure to participate

2la

ment of the Supreme Court on point, Northeast Marine

Terminal Co. v. Caputo, 482 U.S. 249, 256 n.11 (1976),

while dietum and not entirely unambiguous, is basically

in accord with our holding."

before the agency is fatal to one who seeks to participate on

appeal. But that rule is inappropriate here. As a practical

matter, it would be impossible for the DOWCP, with its

limited resources, to actively participate before the ALJ and

BRB in every case. It would be grossly inefficient to require

the DOWCP to participate at the agency level in order to

participate in the court of appeals, or even to move to inter-

vene where not made a party. In any event, we believe Con-

gress intended the Secretary's designate to participate in ad-

ministrative and judicial proceedings where and when he

believed it necessary.

Second, it may at first blush seem illogical to allow a re-

spondent to side with petitioner. This is often the case, how-

ever, where the United States as statutory respondent argues

on behalf of petitioner in urging reversal of some agency

action. The prospect of a caption reading “DOWCP, et al. v.

DOWCP, et al.” can be avoided simply by the Director re-

fraining from naming itself as respondent in any petition for

review he chooses to file.

® Northeast Terminal came up on certiorari to the Second

Circuit, where the Director—at that time without the benefit

of 20 C.F.R. § 802.410(b) and burdened with 20 C.F.R.

§ 1.2(d), see note 3 supra—failed to persuade the Second

Circuit that the DOWCP, not the Board, should be the proper

fe val respondent in §921(c) proceedings. The court of

appeals stated in dictum,

Trying to make sense out of these regulations, we think

that while the Director, OWCP is a proper party before

the ALJ or the BRB... , the BRB is the proper agency

respondent for review in the court of appeals .... We

deem it best to defer resolution of this question to a case

where decision on this point is essential; perhaps in the

meanwhile the Department will tidy up its regulations.

Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 43

n.5 (1976). It was in response to this suggestion that the

22a

In so holding, we choose not to rely on Rule 15(a) as the

Director urges us to do. In McCord v. Benefits Review

Board, 514 F.2d 198 (D.C. Cir. 1975), this court granted

the Board’s unopposed motion to dismiss itself as a re-

spondent in a section 921(c) review proceeding. The

court stated that the rationale of Rule 15(a) does not

apply to this type of proceeding.

Normally, a single private party is contesting the

action of an agency, which agency must appear and

defend on the merits to insure the proper adversarial

clash requisite to a “case or controversy.” ... Here,

there is sufficient adversity between |the employer |

and [the claimant| to insure proper litigation with-

out participation by the Board. To require the Board

to appear as a party would parallel requiring the

District Court to appear and defend its decision upon

direct appeal.

514 F.2d at 200. The court listed as another reason for

dismissal a corollary of the first: the court could carry out

its judgment and order without any further action required

of the Board. /d. In this case, too, there is “sufficient ad-

versity” between petitioner Shahady and the named re-

spondents to ensure a “case or controversy.” Rule 15(a)

contemplates that the agency respondent defend the agen-

Secretary promulgated 20 C.F.R, § 802.410(h). The Supreme

Court, presented with the recently issued reculation, stated:

The Court of Appeals questioned whether the

[DOWCP], the federal respondent here, was a proper

party in the Court of Appeals. . . . It concluded that some

federal participation was proper and did not reach the

question whether the BRB should have been substituted

for the Director. . . . [N]ecither party has raised any

question in this Court concerning the identity of the fed-

eral respondent. This question is therefore not before us.

The Department of Labor has recently promulgated a

regulation making it clear that the Director of OWCrP

is the proper federal party in a case of this nature.

Northeast Marine Terminal Co, v. Caputo, 432 U.S. 249, 256

n.11 (1976) (emphasis added).

23a

cy’s (commission, or board) decision because the respond-

ent represents the agency. In LHWCA cases, the Benefits

Review Board—as a purely adjudicative entity—functions

as a district court.* There is no necessary identity of inter-

est between the BRB and DOWCP. The Director decides

independently to support the Board’s order, and if so, to

what extent and in what manner.

The Director argues that if the Board is not a proper

federal respondent, then the DOWCP must be. We dis-

agree. The reasoning of McCord—that the rationale of

Rule 15(a) is inapplicable to this kind of situation—ap-

plies as much to the DOWCP as it does the Board. We

® Most other courts that have dismissed the Board as re-

spondent have followed the reasoning of McCord. See, e.g.,

DOWCP v. Eastern Coal Corp., 561 F.2d 632, 648-49 (6th

Cir. 1977) (“Just as a District Court is not a necessary party

in this court for review of its decision, we hold the Benefits

Review Board is likewise not a necessary party to this liti-

gation.”) ; Nacirema Operating Co., Inc. v. Benefits Review

Board, 538 F.2d 73, 75 (3d Cir. 1976) (Board now performs

the function which prior to 1972 LHWCA amendments was

performed by a district court; Board, like the district court,

has no duty or interest in defending its actions on appeal) ;

ITO Corp. of Baltimore v. Benefits Review Board, 529 F.2d

1080, 1089 (4th Cir. 1975) (sufficient adversity between

employer and claimant; Board's participation unnecessary to

ensure proper litigation), dismissal of Board noted and left

undisturbed upon rehearing en banc, 542 F.2d 903, 907 n.4

(1976), cert. denied, 433 U.S. 908 (1977); Offshore Food

Service and Aetna Cas. Surety Co. v. Benefits Review Board,

524 F.2d 967 (“Neither [§ 921(c) nor Rule 15(a)] requires

the Board to be a party nor is its presence as a party necessary

to effectuation of orders this court may enter.”).

Only one circuit has relied on Rule 15(a) in holding the

Board to be a proper respondent. Prolerized New England Co.

v. Benefits Review Board, 637 F.2d 30, 40-41 (1st Cir. 1980).

Notably, the DOWCP also participated in that case as party-

respondent. The only other decision in conflict with the rea-

soning of McCord is Pittston Stevedoring, discussed infra

at 13.

24a

agree with Judge Friendly; we too “find it hard to believe

that . . . Congress [in the 1972 LHWCA amendments]

meant to oust the Government from participation as of

right.” Pittston Stevedoring Corp. v. Dellaventura, 544

F.2d 35, 43 n.5 (2d Cir. 1976), aff'd sub nom. Northwest

Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). But

we believe that the Act, not Rule 15(a), dictates our con-

clusion that the Director shall be named as federal party-

respondent in section 921(c) proceedings.

III. CONCLUSION

We hold that the Director, OWCP shall be nan.ed as

federal party-respondent in all petitions for review

brought under section 21(c) of the LHWCA, 33 U.S.C.

§ 921(c), regardless of the level or degree of active par-

ticipation of the Director Sefore the Board. The Director

may freely elect either to support the Board’s decision and

order, in whole or in part, to side with petitioner and urge

reversal, or to refrain from taking a position. The Direc-

tor’s motion to amend and reform the caption in No. 81-

1818 is therefore granted.

25a

APPENDIX G

BENEFITS REVIEW BOARD

U.S. DEPARTMENT OF LABOR

No. 79-724

JAMES SHAHADY

Claimant-Petitioner

Vv.

)

)

)

)

)

ATLAS TILE & MARBLE )

) FILED AS PART

and ) OF THE RECORD

) JUN 11 1981

HARTFORD ACCIDENT & ) ome

INDEMNITY COMPANY ) /s/

Employer/Carrier ) mae _. —_

Respondents )

DECISION and ORDER

Appeal from the Decision and Order of Robert

A. Briggs, Administrative Law Judge, United

States Department of Labor.

Wayne M. Mansulla, (Ashcraft & Gerel),

Washington, D.C., for the claimant.

William P. Dale, (McChesney & Pyne),

Washington, D.C., for the employer/carrier.

Before: SMITH, Chief Administrative Ap-

peals Judge, MILLER* and KALARIS, Ad-

ministrative Appeals Judges.

*Separate opinion by MILLER, Administrative Appeals Judge, to

follow.

26a

KALARIS, Administrative Appeals Judge:

This is an appeal by claimant from the Decision and

Order (79-DCWC-252) of Administrative Law Judge

Robert A. Briggs pursuant to the provisions of the

Longshoremen’s and Harbor Workers’ Compensation

Act, as amended, 33 U.S.C. § 901 ef seg., as extended by

the District of Columbia Workmen’s Compensation Act,

36 D.C. Code § 501 ef seq. (hereinatter, the Act). Clai-

mant appeals the administrative law judge’s decision not

to award to claimant payment for the medical services

rendered by three physicians, Drs. Pecson, Schuster, and

Edelson.

Claimant injured his left knee on November 19, 1975,

while engaged in his employment as a marble mason.

About one week after the injury, claimant came under the

care of his family physician, Dr. Pecson. However, as clai-

mant’s knee worsened, claimant’s employer, Atlas Tile and

Marble (hereinafter, employer), referred claimant to Dr.

Gibson, who thereafter performed surgery on claimant on

April 2, 1977. Dr. Gibson continued to treat claimant until

April 1978, when claimant and Dr. Gibson experienced

some “unpleasantness.” After this “unpleasantness,” clai-

mant once again sought treatment from Dr. Pecson. On

advice of Dr. Pecson, claimant was operated on by Dr.

Schuster.' Claimant continued to see both Drs. Pecson

and Schuster after the operation.

The administrative law judge held that, even though Dr.

Pecson was ciaimant’s “initial free choice,” employer was

not liabie for these medical expenses because claimant had

not requested that employer authorize treatment by Dr.

Pecson, as provided in Section 7(d) of the Act. 33 U.S.C.

'Dr. Edelson assisted Dr. Schuster in the operation on claimant.

27a

§ 907(d). The administrative law judge denied claimant

payment of the medical expenses of Drs. Schuster and

Edelson because claimant had failed to obtain a written

consent to change physicians as required by 20 C.F.R.

§ 702.406. The administrative law judge also found that

none of the physicians had properly filed medical reports,

as required by Section 7(d).

Claimant has advanced several arguments in his appeal

of the administrative law judge’s decision not to award

payment of the medical expenses. However, review of

both claimant’s arguments on appeal and the Decision and

Order of the administrative law judge reveals that there

are three issues involved in this appeal: whether employer

was absolved of its obligation to pay for medical services

rendered to claimant because of claimant’s failure to ob-

tain prior authorization; whether certain 2'leged actions

by employer’s physician and insurance carrier constituted

a refusal by employer to provide further medical care; and

whether the administrative law judge properly refused to

excuse the failure of the physicians who treated claimant

to file the required medical reports.

We note initially that the Board’s scope of review is

limited. Therefore, where the findings and conclusions of

the administrative law judge are supported by substantial

evidence in the record considered as a whole, are not irra-

tional, and are in accordance with law, they must be af-

firmed by the Board. 33 U.S.C. § 921(b)(3); O'Keeffe v.

Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359

(1965).

As a general rule, an employer is responsible for fur-

nishing medical services and supplies that may be required

as the result of a work-related injury. See 33 U.S.C.

§ 907(a). However, Section 7(d) conditions a claimant’s

28a

recovery of medical expenses on the occurrence of one of

three events provided that the required physician’s report

is filed or failure to file is excused: the claimant requests

that the employer furnish medical treatment and the

employer refuses or neglects to do so; or the claimant re-

quests that the employer authorize medical treatment by a

physician chosen by the claimant and the employer refuses

or neglects to do so; or the nature of the injury requires

immediate medical treatment and the employer, having

knowledge of the injury, neglects to provide or authorize

treatment.? Where the employer refuses or neglects to pro-

vide medical treatment when requested, or refuses to

authorize treatment upon request, and the claimant

thereafter procures necessary medical treatment, the

employer must bear these expenses. See 33 U.S.C.

§ 907(d).

The controversy in the instant case revolves around the

payment for medical treatment provided by physicians

?Employer’s obligations in an emergency situation are further defin-

ed in 20 C.F.R. §§ 702.405 and 702.421. In his dissent in Jackson v.

Navy Exchange, 9 BRBS 437, BRB No. 77-374 (1978), Administrative

Appeals Judge Miller argued that an employer was liable for any

medical treatment, including treatment that claimant did not request

in advance, if this treatment was subsequently found necessary, the

employer had knowledge of the injury, and the employer neglected to

provide or to authorize such treatment. Jackson, 9 BRBS at 440.

However, as indicated earlier, it is the majority’s opinion that an

employer's obligation to furnish medical treatment is conditioned

upon claimant’s requesting either treatment or authorization for treat-

ment, except in the case of an emergency. In the instant case, the ad-

ministrative law judge found, and substantial evidence in the record

supports the finding, that no emergency situation existed. We,

therefore, need only address the prior authorization requirements of

Section 7(d) in this case. O’Keefe, supra.

29a

chosen by claimant himself. We first address the issue of

whether, under the facts of this case, claimant was re-

quired to request authorization from employer prior to

obtaining medical treatment. Claimant argues that, as Dr.

Pecson was his “initial free choise” pursuant to Section

17(b) of the Act and 20 C.F.R. § 702.406, there was no re-

quirement that claimant obtain authorization prior to

seeking Dr. Pecson’s services. While the administrative

law judge agreed that Dr. Pecson was claimant's “initial

free choice,” Judge Briggs nevertheless denied pay-

ment of these medical expenses since claimant had fail-

ed to obtain authorization prior to seeing Dr. Pecson.

Citing decisions from the Courts of Appeals for the

Fourth and Ninth Circuits, the administrative law judge

held that Section 7(d) provides that a claimant is not entitled

to recover payment for any medical expenses unless the

claimant has first requested that employer “authorize pro-

vision of medical or surgical services by the physician

selected by the employee and the employer shall have

refused . . .” See Maryland Shipbuilding and Dry Dock

Co. v. Jenkins, 549 F.2d 404, 10 BRBS 1 (4th Cir. 1979),

Nardella v. Campbell Machine, Inc., 525 F.2d 45, 3 BRBS

78 (9th Cir. 1975). See generally Jackson v. Navy Ex-

change, 9 BRBS 437, BRB No. 177-374 (1978).

We agree with the administrative law judge that clai-

mant’s entitlement to an initial free choice of a physician

under Section 7(b) does not negate the requirement under

Section 7(d) that claimant obtain employer’s authorization

prior to seeking recovery for the medical services of that

physician. As it is clear from the facts of the instant case

that none of the conditions of Section 7(d) had been met,

we conclude that the administrative law judge’s decision

denying payment of Dr. Pecson’s medical services because

of claimant’s failure to obtain authorization prior to see-

30a

ing Dr. Pecson,’ is supported by substantial evidence and

is in accordance with law. O’Keeffe, supra.

We realize that our decision today is not in accord with

the Board’s earlier decision in Bulone v. Universal Ter-

minal & Stevedoring Corp., 8 BRBS 515, BRB No. 78-154

(1978). However, in Bulone, the applicability of Section

7(b) was erroneously considered without any reference to

Section 7(d). Therefore, to the extent that Bu/one is incon-

sistent with our determination in the instant case, Bulone

is overruled.

As concerns the medical services of Dr. Schuster, clai-

mant argues that they should be viewed as an extension of

the services rendered by Dr. Pecson. Being under the im-

pression that no prior authorization was required before

seeking the services of Dr. Pecson, claimant’s “initial free

choice,” claimant takes the position that no prior

authorization was required before seeing Dr. Schuster

either. We have held herein that, although Dr. Pecson was

claimant’s “initial free choice,” claimant was nevertheless

‘It is obvious that Dr. Pecson was claimant's “initial free choice”

after his injury. However, as to claimant's return to Dr. Pecson after

the “unpleasantness” with Dr. Gibson, it is not certain whether Dr.

Pecson remained claimant's “initial free choice” or whether this should

be viewed as a “change of physicians.” While under certain cir-

cumstances this difference in terminology could be significant, we

believe that in the instant case it is unnecessary to address this dif-

ference for two reasons. First, regardless of whether these latter visists

to Dr. Pecson are termed part of claimant's “initial free choice” or a

“change of physicians,” claimant was obligated to obtain some form

of authorization from employer, which, in either event, claimant fail-

ed to do. Secondly, as an alternative reason, the administrative law

judge denied payment of the medical services rendered by Dr. Pecson

because Dr. Pecson failed to file the necessary medical reports. The

failure to file these reports is sufficient by itself to support the denial

of the payment.

3la

obligated to obtain authorization prior to seeing Dr. Pec-

son. Thus, even if we view Dr. Schuster’s services as an ex-

tension of Dr. Pecson’s services, claimant failed to obtain

the required authorization. Moreover, in Nardella, supra,

the Ninth Circuit rejected claimant’s argument that no ad-

ditional authorization was required before receiving treat-

ment from physicians to whom claimant had been referred

by his “primary physician.” Nardella, 3 BRBS at 82.

Although Nardella was a pre-amendment case, we agree

with the result reached therein and consider the rationale

of that case equally applicable to the amended Section

7(d). Additionally, we agree with the administrative law

judge that reimbursement for the services rendered by Drs.

Schuster and Edelson should be disallowed since claimant

failed to obtain a written consent to change physicians as

required by 20 C.F.R. § 702.406. And see 33 U.S.C.

§ 907(b).

Claimant further argues that there are acts attributable

to employer, each of which would constitute a refusal by

employer to provide further medical care, and, thus,

negate claimant’s obligation to obtain authorization prior

to seeking medical treatment. As earlier noted, if a clai-

mant requests the employer to furnish medical treatment

or services, or to authorize such treatment by a physician

selected by claimant, the employer must bear the costs of

such treatment. The Board, however, has concluded that,

under certain circumstances, the actions of an employer

can be tantamount to a refusal by the employer to either

provide treatment or to authorize treatment. When the ac-

tions of an employer are such that they are tantamount to

a refusal, the claimant is thereby entitled to payment or

reimbursement for any subsequently obtained treatment.

See Rogers v. Pal Services, 9 BRBS 807, BRB No. 77-636

(1978) (employer’s physician’s discharge of claimant, who

32a

was nevertheless still disabled, held tantamount to a

refusal by employer to provide further treatment);

Washington v. Cooper Stevedoring Co., 3 BRBS 474,

BRB No. 75-237 (1976), aff'd sub nom. Cooper Stevedor-

ing of Louisiana v. Washington, 556 F.2d 268, 6 BRBS

324 (Sth Cir. 1977) (employer’s physician’s misdiagnosis

held tantamount to a refusal to provide further medical

treatment). See also Mitchell v. Sun Shipbuilding & Dry

Dock Co., 7 BRBS 215, BRB Nos. 77-1205 (3d Cir. Nov.

17, 1978).

In the instant case, claimant argues that the unpleasant-

ness which occurred between Dr. Gibson and himself was

tantamount to a refusal by employer to provide further

medical care. However, there is a conflict in the testimony

over the degree of this unpleasantness. The administrative

law judge held that this unpleasantness did not constitute a

refusal by employer to provide further medical care. Deci-

sion and Order at 4. Substantial evidence supports the ad-

ministrative law judge’s finding, and we therefore affirm.‘

O'Keeffe, supra.

“Claimant also “tangentially” notes that Dr. Gibson “may be guilty

of medical malpractice,” citing Washington v. Cooper, supra, which

held that a misdiagnosis was a refusal under the Act. Our examination

of the record below reveals that claimant elicited evidence on the com-

petency of Dr. Gibson’s treatment of the purpose of establishing clai-

mant’s dissatisfaction with Dr. Gibson’s treatment on the theory that

under such circumstances claiamnt would not be required to con-

tinued under the care of Dr. Gibson. Hearing Transcript, pp. 90-91.

We agree with employer that claimant’s argument is irrelevant to the

question of whether the proper statutory and regulatory procedures

were satisfied in obtaining medical treatment. /d. Further, the

phraseology of claimant’s argument indicates that a finding of medical

malpractice is not and cannot be seriously pressed on appeal, nor was

the evidence below developed to that end. For these reasons we reject

claimant's argument.

33a

Claimant also contends that, in his visit to Dr. Gibson

during which the unpleasantness occurred, claimant re-

quested further treatment from Dr. Gibson, but was told

that he had recovered from his injury and required no fur-

ther treatment, thus constituting an effective refusal under

the Act. The administrative law judge found that, with

regard to Dr. Gibson, there was no refusal by employer to

provide medica! care. We have reviewed the record as a

whole and find that there is substantial evidence to sustain

the administrative law judge’s conclusion. See Hearing

Transcript, pp. 70-71, 78, 80; Cl. Ex. 6, Report of Dr.

Gibson, April 14, 1978. We affirm. O’Keeffe, supra.

Finally, in his attempt to establish a refusal by employer

to provide further medical care, claimant cites two occa-

sions in which employer’s insurance carrier refused to

authorize medical services. Claimant argues that, on these

occasions, when he was being admitted to Doctor’s

Hospital, the hospital telephoned employer’s insurance

carrier and inquired as to whether the carrier would

authorize the scheduled treatment. On both occasions, the

carrier refused to authorize the treatment. Claimant main-

tains that these two incidents constitute requests for

authorization by employee and refusals by employer, thus

satisfying the prior authorization requirement for the

treatment requested and the requirement of a “refusal” by

employer to provide further care.

We are, however, unable to accept this third argument

advanced by claimant. The administrative law judge

found that, with respect to the hospital admissions, there

was no request by claimant to the employer or carrier for

the prior furnishing of such services. Decision and Order

at 3. We hold that there is substantial evidence in the

record to sustain this finding. The only record evidence of

these requests by the hospital personnel is claimant’s bare

34a

allegation that the telephone calls were made. Hearing

Transcript, pp. 82, 86. Moreover, even assuming that the

requests were made, there is no evidence that the telephone

calls apprised employer or carrier that the hospitalization

was for claimant’s work-related injury to his left knee. As

employer notes in its brief, claimant had a prior right knee

injury and compensation case arising out of an injury that

occurred in 1974 with another employer and carrier. Thus,

there is not sufficient evidence of the contents of the two

telephone calls made by Doctor’s Hospital to show that the

insurance carrier knew that it was being requested to

authorize treatment for an injury for which it was respon-

sible. Under these facts, the insurance carrier’s refusal to

authorize treatment should not now be the basis for find-

ing the carrier liable. Accordingly, we affirm the ad-

ministrative law judge’s finding that the provisions of Sec-

tion 7 were not complied with, and thus employer is not

chargeuble for the medical treatment that claimant subse-

quently obtained.

In addition to denying the claim for payment of the

medical services because claimant had failed to obtain the

required prior authorization, the administrative law judge

also denied the claim because none of the physicians com-

plied with Section 7(d) in regard to the filing of the re-

quired medical reports. Section 702.422(a), 20 C.F.R.

§ 702.422(a), premises an employer’s liability for payment

of medical services on the receipt by employer and the

deputy commissioner of a medical report from the atten-

ding physician within 10 days following the date of the

first treatment. In the instant case, the evidence discloses

that Drs. Pecson and Edelson never filed the medical

reports required by Section 7(d) and, although Dr.

Schuster did file an Attending Physician’s Report with the

deputy commissioner, this report was filed three months

35a

after the initial treatment and surgery. Under the provi-

sions of Section 702.422(b), 20 C.F.R. § 702.422(b), the

Secretary of Labor has delegated to the administrative law

judge the authority to excuse the failure to file the required

medical reports within 10 days.

The arguments raised by claimant in his attempt to

establish that employer acted in a manner that was tanta-

mount to a refusal to provide further medical treatment

are also asserted as reasons to excuse the failure of the

physicians to properly file the required reports. However,

we have already considered these arguments and determin-

ed that the administrative law judge did not abuse his

discretion in finding that none of the acts cited by claimant

constituted a refusal by employer to provide or authorize

medical treatment. Therefore, the rationale of Buckhaults

v. Shippers Stevedoring Company, 2 BRBS 277, BRB No.

75-132 (1975) (employer’s refusal of further medical care

held to negate the finding that failure to file the required

medical report was unjustified) is inapposite. Accordingly,

we affirm the administrative law judge’s finding that there

is “. . . no basis for excusing the failure of the respective

attending physicians to properly submit the report(s) re-

quired by the statute.” Decision and Order, slip op. at 4.

This noncompliance mandates a denial of the request for

payment of the medical services.

Lastly, claimant argues that the Section 20 presumption

applies to the issue of the filing of the medical reports re-

quired by Section 7(d). Claimant maintains that com-

pliance with Section 7(d) must be presumed unless and un-

til employer fulfills its burden of proving noncompliance

with the Act. Claimant also argues that, since employer

did not raise the issue of the “timeliness” of Dr. Schuster’s

reports before the administrative law judge, it was im-

proper for the administrative law judge to raise this issu<

36a

on his own.’ Moreover, claimant argues that, since

employer failed to raise the “untimeliness” defense before

the administrative law judge, employer cannot raise this

issue for the first time on appeal.

First, it has been held that the filing of the medical

reports as required by Section 7(d) is not included within

the Section 20 presumption. Maryland Shipbuilding and

Dry Dock Co. v. Jenkins, supra at 407. Secondly, in his

opening statement counsel for employer specifically

brought to the court’s atteniion the regulation concerning

the “effect of failure to report on medical care after initial

authorization.” Hearing Transcript at 34. Further, on Oc-

tober 22, 1979, three days after the hearing, claimant was

directed by the administrative law judge to file any attend-

ing physician’s reports or reports of initial treatment and

any letter or other request made to employer/carrier to

provide medical treatment or services. ALJ Ex. 1. Clai-

mant’s reply to this request was a reference to the reports

of Dr. Pecson. Cl. Ex. 14. However, counsel for employer

responded to this request by indicating that Employer’s

Exhibit 4 was an Attending Physician’s Report of Dr.

Schuster and noted that this report had been dated three

months after the first treatment. Emp. Ex. 11.

Under these circumstances, we hold that the issue of

compliance with Section 7 in regard to the medical reports

was properly before the administrative law judge and all

parties had a sufficient opportunity to address this issue.

‘In making this argument, claimant only refers to Dr. Schuster’s

failure to submit the required reports within 10 days as required by the

Act. Claimant offers no explanation as to why this argument was not

extended to include Dr. Pecson’s and Dr. Edelson’s failure to comply

with Section 7. We will address this argument as if it applied to all

three physicians.

37a

Accordingly, we affirm the decision of the ad-

ministrative law judge denying claimant’s claim for pay-

ment of the medical services rendered by Drs. Pecson,

Schuster and Edelson.

SO ORDERED.

/s/

ISMENE M. KALARIS

Administrative Appeals Judge

I Concur: /s/

SAMUEL J. SMITH, Chief

Administrative Appeals Judge

38a

APPENDIX H

BENEFITS REVIEW BOARD

U.S. DEPARTMENT OF LABOR

No. 79-724

JAMES SHAHADY )

Claimant-Petitioner )

) FILED AS ParT

v. ) Ser: 20 wane

) Agnes Kurizman/KW

ATLAS TILE & MARBLE a se

) SEPARATE

and ) OPINION

)

HARTFORD ACCIDENT AND )

INDEMNITY COMPANY )

Employer/Carrier- )

Respondents )

MILLER, Administrative Appeals Judge, dissenting:

I must object to my colleagues’ denial of claimant’s re-

quest for the payment of medical services rendered by Drs.

Pecson, Schuster, and Edelson. Preliminarily, I would

find employer liable pursuant to Section 7(b) and 20

C.F.R. § 702.406 for the costs of treatment supplied by

Dr. Pecson.

As the administrative law judge noted, Dr. Pecson was

claimant’s initial choice of physician. This fact alone

should establish employer’s responsibility for the fees

associated with Dr. Pecson’s treatment, since “claimant ig

entitled to an initial free choice of a physician with no need

39a

of authorization. . . .” Bulone v. Universal Terminal &

Stevedoring Corp., 8 BRBS 515, 517 BRB No. 78-154

(1978)l. Howver, my colleagues, offering no rationale

therefor, have determined that their Bu/one decision is er-

roneous and that the Act mandates authorization prior to

seeking treatment from the physician of claimant’s initial

free choice. In doing so, the majority disregards the

judicial doctrine of stare decisis, the foundation of which,

as noted in my dissenting opinion in Clites v. Jones &

Laughlin Steel Corp., 2 BLR 1-1019, BRB No. 79-358

BLA (1980), “is to insure that parties can place great

reliance on the past decisions of an adjudicator as in-

dicative of future decisions in a similar case. . . .” 2 BLR at

1-1028. Claimant has demonstrated his reliance on

Bulone. See claimants Memorandum of Points and

Authorities at 10. Accordingly, “[w]hen rights have been

created. . .in reliance on established rules of law, the

arguments against their change have specific force.”

Thomas v. Washington Gas Light co., 12 BRBS 828, 835,

100 S.Ct. 2647 (1980) (plurality opinion). My colleagues

have profferred no arguments to support a reversal of

Bulone. Thus, I would find Bulone controlling and would

hold employer liable for the cost of Dr. Pecson’s services.

Additionally, I would find employer liable pursuant to

Section 7(d) for the expenses incurred by claimant in treat-

ment from all three physicians. For the reasons stated in

my dissent in Jackson v. Navy Exchange Service Center, 9

BRBS 437, 440 BRB No. 77-374 (1978), I would hold that

a claimant is not obliged to request authorization when the

nature of his injury requires treatment, and employer has

knowledge of the injury and neglects to provide care. In

the instant case, the facts establish that the employer did

not meet this burden.

Finally, | cannot subscribe to my colleagues’ holding

40a

that the timeliness issue of the physicians’ reports “was

properly before the administrative law judge. . . .” Majori-

ty Opinion, slip op. at 13. I am unable to assent to the ma-

jority’s proposition that a bare allusion to a regulation

constitutes the raising of a defense. On appeal, the

employer attempts to excuse its failure to raise this issue

below by maintaining that the administrative law judge

“requested only brief references to the applicable statute

and regulations in opening statements.” Employer’s

Response Brief at 13. An examination of the record

discloses no such request. Moreover, I hardly consider the

opening statement of employer’s counsel, consisting of ten

transcript pages, as brief references to the statute and

regulations.

I further object to the majority’s premise that the

employer’s response to the administrative law judge’s re-

quest for physicians’ reports constitutes the raising of the

untimeliness of said reports. In this letter, the employer

does note that Dr. Schuster’s report is dated three months

subsequent to the date of the initial Treatment. However,

the employer makes no mention of the physicians’ reports

of Drs. Pecson and Edelson. It is thus impossible for me to

view this letter as an objection to the untimeliness of the

reports of Drs. Pecson and Edelson.

I would further apply the Section 20(a) presumption to

the issue of the timeliness of the physicians’ reports. See

Jenkins v. Maryland Shipbuilding & Dry Dock Co., 6

BRBS 550, BRB No. 76-376 (1977), rev’d, 10 BRBS 1, 594

F.2d 404 (4th Cir. 1979). The employer had full oppor-

tunity at the hearing to establish the untimeliness of these

reports. The employer failed to rebut the presumption by

declining to present any evidence on this issue. The ma-

jority’s approval of the administrative law judge’s treat-

ment of this issue is contrary to the interests of justice.

4la

Our mandate under the Act is to apply the terms

of the [Act] in a principled fashion, striving to

avoid ‘harsh and incongruous results’ whenever

appropriate in light of the language and intent of

the Act. . . . We must ‘not construe the Act so as

to enable [employers] to escape liability to per-

sons entitled to recover for an admittedly com-

pensable death by reading into it technical

restrictions on the tolling of the filing period

which are inconsistent with the purposes of the

Act.’

Smith v. Aerojet-General Shipyards, Inc., 13 BRBS 391,

396, 647 F.2d 518 (Sth Cir. 1981) rev’g and remanding 9

BRBS 225, BRB Nos. 76-346/A (1978) (Miller, dissenting)

(citations omitted). See also my dissent in Peterson v.

Washington Metropolitan Area Transit Authority,

_ BRBS , BRB, No. 78-610 (June 11, 1981).

For the reasons stated herein, I would reverse the ad-

ministrative law judge’s denial of claimant’s claim for

medical expenses.

Julius Miller

Administrative Appeals Judge

Dated this 21st

day of September 1981

42a

SERVICE SHEET

BRB No. 79-724: James R. Shahady v. Atlas Tile and

Marble and Hartford Accident & In-

demnity Company

(Case No. 79-DCWC-252) (OWCP No.

40- 102454)

Wayne M. Mansulla, Esq.

Ashcraft and Gerel

Suite 303

2101 L Street, N.W.

Washington, DC 20037

William P. Dale, Esq.

1000 Connecticut Avenue, N.W.

Washington, DC 20036

Mr. Donald S. Shire, Esq.

Associate Solicitor

U.S. Department of Labor

Suite N-2620, NDOL

Washington, DC 20210

Ms. Janice V. Bryant

Deputy Commissioner

US DOL/ESA/OWCP

Room 1015, Vanguard Building

1111 20th Street, N.W.

Washington, DC 20036

Judge Robert G. Mahony

U.S. Department of Labor

Suite 700, Vanguard Building

1111 20th Street, N.W.

Washington, D.C. 20036

Certified

Certified

Certified

43a

Mr. Ralph M. Hartman

Director, Office of Workers’

Compensation Programs

U.S. Department of Labor

Suite S-3524, NDOL

Washington, DC 20210

In the Matter of

JAMES SHAHADY

Claimant :

Vv. : Case No

ATLAS TILE & MARBLE

Employer : 102454

HARTFORD ACCIDENT &

INDEMNITY CO.

Wayne Mansulla, Esq.

2101 L Street N.W., Suite 303

Washington, D.C. 20037

For the Claimant

William P. Dale, Esq.

1000 Connecticut Avenue N.W.

Washington, D.C. 20036

For the Employer-Carrier

Before: ROBERT A. BRIGGS

Administrative Law Judge

4Sa

DECISION AND ORDER

Pursuant to the provisions of the Longshoremen’s and

Harbor Workers’ Compensation Act, as amended, 33

U.S.C. 901 ef seg., and the District of Columbia

Workmen’s Compensation Act, as amended, 36 D.C.

Code 501 et seg., a formal hearing was held before the

undersigned in this proceeding. Transcript pages are

referenced by the letter “T”. The Employer/Carrier is

hereinafter referred to as Respondent. All evidence and

testimony has been carefully considered but to summarize

herein would serve no useful purpose. Pursuant to direc-

tive (ALJ Ex.1), the parties have filed post-hearing sub-

missions relating to attending physician’s reports and any

requests for medical care, which are received in evidence

as Claimant Ex. 14 and Employer Ex. 11.

Based upon the entire record herein, including the

stipulations of fact by the parties and evidence adduced,

and from my observation of the witnesses and their de-

meanor, I make the following findings of fact, conclusions

of law, and order.

Both parties are subject to the Act and in compliance

with applicable notice are filing requirements of Sections

12 and 13. On November 19, 1975 claimant tripped and

fell, striking his left knee, with said injury arising out of

and in the course of his employment as a marble mason,

which work requires considerable kneeling (T. 59). Two

days later, he was treated and released to return to work

by the NE Industrial Clinic (Claimant Ex. 4). Although he

continued to work, his left knee condition worsened, and

October 8, 1976 his employer referred him to Dr. Gibson,

an orthopedic surgeon. Conservative treatment proved un-

successful, and surgery was performed by Dr. Gibson on

April 2, 1977. Claimant continued to see Dr. Gibson until

46a

April 14, 1978 (Claimant Ex. 6). Compensation payments

for temporary total disability were made from April | to

May 30, 1977 (Claimant Ex. 12). Claimant is presently

receiving compensation which is not in issue at this time

(T. 4). Claimant returned to work in early June 1977 (in-

itially as a truck driver and, on October 3, 1977, returned

to his regular work) and continued to work without miss-

ing any time through at least April 14, 1978 (Claimant Ex.

6).

Preceding, during, and subsequent to the above medical

care of Dr. Gibson, claimant was also treated by his family

physician, Dr. Pecson, commencing about one week after

the injury (Claimant Ex. 2 at p. 1) and continuing at least

through April 1979 (Employer Ex. 8). Claimant’s condi-

tion further deteriorated and on June 23, 1978, Dr. Pecson

advised claimant’s attorney that claimant was “barely

able” to work and would be hospitalized on June 25 for

corrective surgery (Claimant Ex. 5.). Claimant was admit-

ted to Doctor’s Hospital on that date and referred to Dr.

Schuster, an orthopedic surgeon, who operated on clai-

mant’s left knee four days later on June 29, 1978. (Clai-

mant Ex. 2 at p. 1, 2). A bill for $200 by Dr. Edelstein who

assisted Dr. Schuster at the operation is also claimed-

Claimant Ex. 8. Subsequent to the above surgery, clai-

mant continued to see both Dr. Pecson and Dr. Schuster.

In November 1978, Dr. Schuster admitted claimant to

Doctor’s Hospital (a period of 4 days) for non-surgical

treatment of his left knee (T. 57).

Claimant had no problems with his /eft knee prior to

November 1975 but has since experienced pain, swelling

and stiffness which have required two operations. I con-

clude that both operations were necessary and causally

related (directly or indirectly) to claimant’s injury of

November 1975. Aggravation of a pre-existing condition is

47a

compensable and, in this respect, there is no conflict in the

evidence. I credit the opinion of Dr. Gibson that “The

degenerative arthritis which pre-existed . . . suffered some

aggravation both by the patient’s injury and surgery . . .”

(Claimant Ex. 6; T. 78.). Dr. Schuster’s opinion further

corroborates the above (Claimant Ex. 9). Accordingly, I

find claimant’s injury (and any sequelae thereof-such as

may have resulted from subsequent necessary surgery by

Dr. Gibson and Dr. Schuster) to be compensable. Thus,

any future medical expenses (medication to relieve pain,

orthopedic braces, future surgery, if necessary) would be

recoverable provided there is compliance with Section 7 of

the Act.

Past medical expenses. In March 1976 (about 4 months

after his injury and over two years prior to treatment and

surgery by Dr. Schuster), claimant retained the services of

counsel who filed the instant claim on March 31, 1976

(Claimant Ex. 13). The parties have stipulated that neither

claimant or his counsel contacted the insurance carrier to

request medical treatment (T. 89). With respect to all of

the treatments by Dr. Pecson, Dr. Schuster and Dr. Edels-

tein and related hospital admissions, there has been no re-

quest by claimant to the employer or carrier for the prior

furnishing of such services (also Claimant Ex. 14). In this

respect, I find that an emergency situation did not exist

herein (as noted, supra, claimant’s attorney was advised

nearly a week prior to surgery on June 29 - Claimant Ex.

5) but rather a slowly deteriorating condition over a period

of nearly 3 years, culminating in claimant’s operation on

June 29, 1978. Although there was some unpleasantness

between claimant and Dr. Gibson, I find that this does not

constitute a refusal by the employer to provide further

medical treatment, particularly in view of claimant’s

statutory right to a physician of his choosing. In this

48a

respect, I find that claimant did not select Dr. Gibson, but

that Dr. Pecson was his initial choice. As no request was

made (and there was no emergency or refusal by

employer), the claim herein for past medical expenses

must be denied.

Athough claimant is entitled to an initial free choice of

physician, Section 7(d) provides that he is not entitled to

recover any medical expenses unless he has requested that

employer “authorize provision of medical or surgical serv-

ices by the physician selected by the employee and the

employer shall have refused . . .” (emphasis added). Deci-

sions of the 4th and Sth Circuit Court of Appeals in

Nardella v. Campbell Machine, 525 F.2d 45, 3 BRBS 78

(1975) and Maryland Shipbuilding v. Jenkins, 549 F.2d

404, 10 BRBS 1 (1979) are dispositive. Also compare

Jackson v. Navy Exchange, 9 BRBS 437, 439 (1978).

Although failure to request authorization requires

denial, the claim is additionally denied because neither Dr.

Pecson nor Dr. Edelstein have filed the reports required by

Section 7(d). An Attending Physician’s report filed with

the Deputy Commissioner (but not the employer) by Dr.

Schuster on September 25, 11978 (Employer Ex. 4 at p. 3)

some three months subsequent to initial treatment and

surgery does not comply with Section 7(d). Under the cir-

cumstances of this case, and considering claimant’s

representation by counsel since March 1976, I find no

basis for excusing the failure of the respective attending

physicians to properly submit the report(s) required by

statute. CF. Maryland Shipbuilding, supra, 10 BRBS at p.

8. As Dr. Pecson was claimant’s initial choice, subsequent

medical services by Dr. Schuster and Dr. Edelstein are

denied for the additional reason that written consent to

change physicians was not obtained as required by 20 CFR

702.406.

49a

As noted in Nardella and Maryland Shipbuilding,

supra, although the Longshore Act is to be interpreted

liberally, the plain terms of the statute may not be

disregarded under the guise of liberal interpretation. Sec-

tion 7(b) and implementing regulation at 20 CFR 702.407

et seq. require that the Deputy Commissioner shail active-

ly supervise the medical care rendered to injured

employees, including making determinations with respect

to the necessity of medical care furnished or to be furnish-

ed, determinations with respect to change of physicians,

the appointment (where appropriate) of impartial

specialists to assist in resolving medical disputes based on

differing medical evaluations, and the requiring of

periodic reports as to the medical care being rendered. 20

CFR 702.422 provides that the employer/carrier is not

liable even for authorized medical care unless the treating

physician shall furnish, within 10 days of his first treat-

ment, a report to the employer and to the Deputy Com-

missioner (failure to furnish such report may be excused

when in the interest of justice to do so).

In the instant case, comprehensive procedures for the

providing of appropriate medical care, supervised and

monitored by the Deputy Commissioner, and for the

resolution of any disputes concerning such care were

thwarted by claimant’s failure to apprise either the

employer or the Deputy Commissioner of his decision to

seek additional medical aid (also T. 38). As in Maryland

Shipbuilding, supra, such failure is further exacerbated by

the fact that claimant obtained legal advice shortly after

the injury (and continuing) some two years prior to the in-

itial treatment and surgery by Dr. Schuster. In the instant

case, counsel for claimant has tried hundreds of cases

under the Longshore Act, is knowledgeable as to its re-

quirements, and had represented claimant in a prior com-

50a

pensation claim (T. 88). Although claimant may obtain

such medical care as he wishes without request or notifica-

tion to anyone, such expenses are not chargeable to his

employer under the Longshore Act unless the provisions

of Section 7 are complied with.

Should medical treatment or surgery be deemed

necessary in the future, claimant (or his counsel) is advised

to forward a written request to the employer/carrier with a

copy to the Deputy Commissioner. A written request for

any future change of physician should be made to the

Deputy Commissioner or, alternatively, to the employer.

ORDER

For the above reasons, the claim herein for medical ex-

penses of Dr. Pecson, Dr. Schuster, Dr. Edelstein and any

related hospital expenses is denied.

/s/

ROBERT A. BRIGGS

Administrative Law Judge

MARK W. LLOYD

Sla

APPENDIX J

BENEFITS REVIEW BOARD

U.S. DEPARTMENT OF LABOR

No. 80-515

Claimant-Petitioner

)

)

)

v. ) FILED AS PART

OF THE RECORD

) SEP 30 1982

SLATTERY ASSOCIATION, INC.) —

and ) Benefits Review Board

HARTFORD ACCIDENT AND )

INDEMINITY COMPANY )

Employer/Carrier-Respondents )

DECISION and ORDER

Appeal from the Decision and Order of Robert

J. Brissenden, Administrative Law Judge,

United States Department of Labor.

Timothy F. X. Cleary (Ashcraft & Gerel),

Washington, D.C., for the claimant.

William P. Dale (McChesney & Pyne),

Washington, D.C., for the empioyer/carrier.

Before: RAMSEY, Chief Administrative Ap-

peals Judge, MILLER and KALARIS, Ad-

ministrative Appeals Judges.

MILLER, Administrative Appeals Judge:

S2a

This is an appeal by claimant from the Decision and

Order (77-DCWC-i1) of Administrative Law Judge

Robert J. Brissenden pursuant to the provisions of the

Longshoremen’s and Harbor Worker’s Compensation

Act, as amended, 33 U.S.C. § 901 ef seg., as extended by

the District of Columbia Workmen’s Compensation Act,

36 D.C. Code § 501 et seq. (hereinafter, the Act).

Claimant suffered a work-related back injury on October

30, 1975. In a Decision and Order dated April 1, 1977,

claimant was awarded compensation and medical benefits

under the Act. On April 5, 1978, the parties entered into a

lump sum settlement of the compensation benefits. The

settlement provided for future medical treatment related

to claimant’s injury.

Shortly after the injury, claimant consulted Dr. Hyde at

the employer’s clinic. Claimant was later referred to Dr.

Gordon by Dr. Hyde. There is no dispute as to the clai-

mant’s right to be treated by either of these doctors.

However, claimant became dissatisfied with Dr. Gordon’s

care and began undergoing treatment by Dr. Schuster on

August 22, 1979.'

The administrative law judge found that claimant had

not requested that employer authorize the treatment by

Dr. Schuster as required by Section 7(d) of the Act. 33

U.S.C. § 907(d). The administrative law judge also found

that Dr. Schuster failed to file a medical report within 10

days following the first treatment as required by Section

7(d). Accordingly, he denied the claim for medical ex-

penses in regard to treatment by Dr. Schuster.

‘Additionally, the claimant visited Dr. Rida Azer on three occa-

sions. There is also no dispute with respect to the right to consult this

doctor.

53a

Claimant contends that he is entitled to reimbursement

for medical expenses because the employer effectively

refused to provide medical treatment. Claimant further

argues that, once the employer has refused medical treat-

ment, it is not within the spirit of the Act to deny reim-

bursement for necessary medical expenses simply because

claimant did not request further treatment. Finally, clai-

mant argues that, based on Buckhaults v. Shippers

Stevedore Co., 2 BRBS 277 (1975), employer’s refusal to

authorize medical care negates the administrative law

judge’s finding that there was no justification for Dr.

Schuster’s failure to tit: ty file his medical report.

Employer initially contends that the administrative law

judge correctly determined that employer did not refuse to

provide medical care. Moreover, employer argues that,

even if Dr. Gordon had refused to provide further treat-

ment, it should not be liable since Dr. Gordon was not the

employer’s doctor. Lastly, employer maintains thai clai-

mant has not shown good cause for Dr. Schuster’s failure

to timely file a medical report.

The Board must affirm a decision if the findings of the

administrative law judge are supported by substantial

evidence in the record considered as a whole, if they are ra-

tional, and if the decision is in accordance with law.

O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,

380 U.S. 359 (1965); 33 U.S.C. § 921(b)(3).

As a general rule, an employer is responsible for fur-

nishing medical services and supplies that may be required

as the result of a work-related injury. See 33 U.S.C.

§ 907(a). Nevertheless, Section 7(d) provides in pertinent

part as follows:

An employee shall not be entitled to recover any

amount expended by him for medical or other

54a

treatment or services unless he shall have re-

quested the employer to furnish such treatment

or services, or to authorize provision of medical

or surgical services by the physician selected by

the employee, and the employer shall hvae refus-

ed or neglectd to do so, or unless the nature of

the injury required such treatment and services

and the employer or his superintendent or

foreman having knowledge of such injury shall

have neglected to provide or authorize the same;

nor shall any claim for medical or surgical treat-

ment be valid and enforceable, as against such

employer, unless within ten days following the

first treatment the physician giving such treat-

ment furnish to the employer and the Secretary a

report of such injury and treatment, on a form

prescribed by the Secretary. The Secretary may,

however, excuse the failure to furnish such

report within ten days wher he finds it to be in

the interest of justice to do so, and he may, upon

application by a party in interest, make an award

for the reasonable value of such medical or

surgical treatment so obtained by the employee.

Claimant does not contend that he requested authoriza-

tion to consult Dr. Schuster or that he requested further

treatment from Dr. Gordon. However, he argues that the

actions of Dr. Gordon are sufficient to constitute a refusal

of treatment. Case law establishes that, under certain cir-

cumstances, the actions of an employer’s physician can be

tantamount to a refusal by the employer to etiher provide

treatment or to authorize treatment, thus obviating the

need for claimant to request either treatment or authoriza-

tion of treatment. When the actions of an employer are

such that they are tantamount to a refusal, the claimant is

thereby entitled to payment or reimbursement for any

subsequently obtained necessary treatment. See Altantic &

5Sa

Gulf Stevedores, Inc. v. Neuman, 440 F.2d 908 (Sth Cir.

1971); Rogers v. Pal Services, 9 BRBS 807 (1978); Walker

v. AAF Exchange Service, 5 BRBS 500 (1977);

Washington v. Cooper Stevedoring Co., 3 BRBS 474

(1976), aff'd sub nom. Cooper Stevedoring of Louisiana,

Inc. v. Washington, 556 F.2d 268, 6 BRBS 324 (Sth Cir.

1977); Buckhaults. In Washington, the Board held that a

mistaken diagnosis was equivalent to a refusal of treat-

ment. 3 BRBS at 479.

In the instant case, Dr. Gordon and Dr. Schuster did

not actually diagnose claimant’s ailments differently. Each

found back pain complicated by accompanying emotional

problems. Their disagreement was with respect to the pro-

per method of treatment. Nevertheless, we conclude that

Dr. Gordon’s actions are tantamount to a mistaken

diagnosis, because the administrative law judge explicitly

found that Dr. Schuster’s treatment was reasonable and

necessary and that his approach differed considerably

from Dr. Gordon’s. Thus, we find that claimant was refus-

ed treatment and incurred expenses for further necessary

medical treatment. Claimant can recover the cost of this

further treatment if the refusal of treatment is attributed

to the employer. See Shahady v. Atlas Tile & Marble Co.,

____. F.2d ___, No. 81-1818 (D.C. Cir. June 4, 1982),

rev’g 13 BRBS 1007 (1981) (Miller, J., dissenting); Rogers,

supra.

In this case, the administrative law judge concluded that

“(t}here was no evidence to indicate that Dr. Gordon was

employer’s representative.” However, the record indicates

that claimant was referred to Dr. Gordon by Dr. Hyde,

the physician at the employer’s clinic. Moreover, Dr. Gor-

don was called by employer as its witness. Therefore, we

determine that the administrative law judge’s conclusion

that Dr. Gordon was not employer’s representative is irra-

S6a

tional. Accordingly, we hold that Dr. Gordon’s Refusal of

treatment by virtue of misdiagnosis must be attributed to

employer.

Finally, we must address claimant’s contention that the

refusal of treatment negates the administrative law judge’s

finding that there was no justification for Dr. Schuster’s

failure to timely file his medical report. In Shahady, the

United States Court of Appeals for the District of Colum-

bia Circuit held that, when an employer refuses to provide

medical care, an administrative law judge’s refusal to ex-

cuse a physician’s failure to timely file his medical reports

as required by Section 7(d) is an abuse of discretion. Ac-

cordingly, we hold that the administrative law judge abus-

ed his discretion by not excusing Dr. Schuster’s failure to

timely file his medical report.

For the foregoing reasons, the Decision and Order of

the administrative law judge is reversed, and the case is

remanded or an award of benefits.

SO ORDERED,

/s/ Julius Miller

Administrative Appeals Judge

I concur: Robert L. Ramsey, Chief

Administrative Appeals Judge

57a

KALARIS, Administrative Appeals Judge, concurring:

I am of the opinion that the decision of the District of

Columbia Court of Appeals in Shahady v. Atlas Tile Mar-

ble Co., __. F.2d___., No. 81-1818 (D.C. Cir. June 4,

1982), rev’g 13 BRBS 1007 (1981), requires reversal of the

administrative law judge’s denial of medical costs in the

case before us. Shahady controls the results herein because

this claim, too, arises in the District of Columbia Circuit. I

therefore concur in the result reached by my colleagues,

However, I continue to disagree with the circuit court’s

opinion in Shahady, and herewith set forth my disagree-

ment in the context of the case now before the Board.

The administrative law judge below determined that

employer could not be deemed to have refused to provide

claimant with treatment (which refusal would have

eliminated the claimant’s duty under Section 7(d) to re-

quest the services of another physician, Dr. Schuster)

because of the actions of Dr. Gordon, employer’s physi-

cian.' The administrative law judge below evaluated Dr.

Gordon’s actions in the light of Walker v. AAF Exchange

Service, 5 BRBS 500 (1977), which held that, where an

employer’s physician makes a determination may be tanta-

mount to a refusal by employer to provide care thus

eliminating any duty on the part of the employee under

Section 7(d) to request medical care. See also Atlantic &

Gulf Stevedores, Inc. v. Neuman, 440 F.2d 908 (Sth Cir.

1971). The administrative law judge found that, since Dr.

Cordon’s report and testimony were to the effect that,

‘I fully concur in my colleagues’ conclusion that Dr. Gordon is

employer's physician on the facts of this case.

58a

since Dr. Gordon’s report and testimony were to the effect

that emotional problems remained, Dr. Gordon did not

deem claimant fully recovered; therefore claimant’s duty

to request that employer provide additional care would re-

main intact under the Walker rationale. In my view, the

administrative law judge’s c. xclusions on this point are

supported by substantial evidence in the record and may

not, therefore, be disturbed on appeal. O’Keeffe v. Smith,

Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965);

Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469

(1947).

The administrative law judge went on to conclude that

an employee’s simple dissatisfaction with the treatment

and his disagreement on the state sof recovery, even if

communicated to employer’s doctor, would not be enough

to constitute a request to employer for medical care.

However, the opinion of the court in Shahady, appears to

require a contrary result. In Shahady, an employer’s physi-

cian had stopped treatment of the claimant (despite lack of

recovery), which action the court equated with a

“discharge” from treatment; the result was that the claim-

ant’s after-acquired medical care, since necessary and

related to the industrial injury, was reimbursable by the

employer. I see little to distinguish the case before us from

the facts in Shahady. In the case before us, Dr. Gordon

withheld the kind of treatment that Dr. Schuster later pro-

vided because Dr. Gordon did not believe that such treat-

ment was necessary. The claimant, by Dr. Gordon’s own

admission, had nevertheless not recovered. As in Shahady,

the administrative law judge below found that the treat-

ment provided by Dr. Schuster was both reasonable and

necessary. On these facts, I believe that the District of Col-

umbia Circuit would, under Shahady, find an effective

“discharge” in Dr. Gordon’s actions, and, therefore,

59a

would find an effective refusal on the part of employer to

provide further medical treatment.”

In my view, a finding that Dr. Gordon’s actions consti-

tute a “discharge” from treatment is a legal fiction that

obscures the reality of the case. I agree with the admin-

istrative law judge’s characterization of the legal issue

before us which is, simply, whether the requirements of

Section 7(d) are met where an employee, who is dissatis-

fied with treatment or who disagrees with the state of his

recovery, secures other medical treatment without request

of the employer and that treatment is ultimately found to

be necessary, and causally related to his employment in-

jury. The plain language of section 7(d) requires an answer

in the negative. The request must be made, followed by

employer’s refusal to provide care, unless the nature of the

injury requires immediate medical treatment, that is,

unless an emergency situation exists. See Jackson v. Navy

Exchange, 9 BRBS 437 (1978); 20 C.F.R. §§ 702.405 and

702.421. Since no emergency situation existed in the case

before us, the employee was required by statute to request

treatment or authorization for treatment from employer.

Failure to comply bars the employee’s recovery of medical

expenses by the plain language of Section 7(d). 33 U.S.C.

§ 907(d). It has often been said that, where “Congress has

put down its pen, [the Court] can neither rewrite Congress’

words nor call it back ‘to cancel half a line.’ ” Director,

OWCP v. Rasmussen, 440 U.S. 29, 47 (1979). For this

reason, the Board is not empowered to create judicial ex-

ceptions to the prior authorization requirements of Sec-

2My colleagues achieve a similar result by finding that Dr. Gordon’s

actions constitute a “mistaken diagnosis,” and, therefore, an effective

refusal on the part of employer to provide further medical treatment. |

cannot ascribe to this finding because Dr. Gordon did not diagnose

claimant's ailments differently than Dr. Schuster.

60a

tion 7(d) for the employee who is dissatisfied with his

treatment and secures necessary treatment elsewhere.

With regard to the issue of the failure of Dr. Schuster to

timely file the physician’s report required by Section 7(d), I

concur in the result reached by my colleagues because

Shahady is controlling. My colleagues are correct that the

D.C. Circuit held in Shahady that, when an employer

refuses to provide necessary medical care, an administra-

tive law judge’s refusal to excuse the physician’s failure to

file his Section 7(d) report, where medical services are

otherwise reimbursable, is an abuse of discretion. Sha-

hady, slip op. at 4. Accordingly, the administrative law

judge’s refusal to excuse Dr. Schuster’s failure to timely

file his report is reversible error as a matter of law in the

D.C. Circuit on the facts of this case. However, the D.C.

Circuit’s opinion on this issue is based on a mistaken

premise.

The court stated in Shahady that its holding, that it is an

abuse of discretion for the administrative law judge to

refuse to excuse the failure to timely file the physician’s

report in the situation where the employer refuses to pro-

vide care, is compelled by the Board’s own precedent in

Buckhaults v. Shippers Stevedore Co., 2 BRS 277 (1975). I

do not agree. Buckhaults involved a situation where the

administrative law judge refused to excuse the physician’s

failure to file his report because the administrative law

judge believed that employer had not refused medical

care. Since the Board held as a matter of law that the

employer had indeed refused to provide medical care, the

Board remanded in Buckhaults for the administrative law

judge to reconsider excusing the failure to file the doctor’s

report in light of employer’s refusal to provide care.

Buckhaults does not hold, as the court in Shahady would

say, that the administrative law judge must as a matter of

6la

law excuse the failure to file the Section 7(d) report where

employer has refused to provide treatment. Indeed,

Buckhaults properly remanded the case for the admini-

strative law judge to reconsider his conclusion, since the

statute provides for excusing the failure to timely file the

physician’s report when it is “in the interest of justice to do

so.” 33 U.S.C. § 907(d); and see n20 C.F.R. § 702.422.

Finding the Section 7(d) filing requirement excused is a

discretionary act under the plain language of the statute

and is not made mandatory by the single fact that

employer has refused to provide medical care. For exam-

ple, an administrative law judge may be confronted with a

situation where a physician treated claimant’s disease over

a long period of time but never filed the report despite his

knowledge that the illness was occupational in origin.

Perhaps the physician was paid from other sources and the

claimant may have had legal counsel during the period of

treatment. Such facts would require a judgment as to

whether it is in the interests of justice to excuse the failure

to file, and that judgment is not pre-ordained, under

Board law or under a fair reading of the statute, where the

single factor of employer’s refusal to provide care is pre-

sent. Assuming, therefore, that there has been a refusal by

employer in the case before us, Board law would require

remand for reconsideration of the issue of excusing the

physician’s failure to timely file his Seciton 7(d) report.

Because Shahady mandates reversal in the D.C. Circuit,

however, I concur in the judgment of my colleagues.

ISMENE M. KALARIS

Administrative Appeals Judge

Dated this 30th day of September 1982

62a

SERVICE SHEET

BRB No. 80-15: Mark W. Lloyd v. Slattery Association,

Inc. and Hartford Accident and In-

susance Co.

(Case No. 77-OWCP No. 4-99153)

Copies were sent to the following:

Timothy F. X. Cleary, Esq. Certified

Ashcraft and Gerel

Suite 303

2101 L Street, N.W.

Washington, DC 20037

William P. Dale, Esq. Certified

McChesney and Pyne

Suite 1010

1000 Connecticut Avenue, N.W.

Washington, DC 20036

Donald S. Shire, Esq. Certified

Associate Solicitor

U.S. Department of Labor

Suite N-2620, NDOL

Washington, DC 20210

Ms. Janice V. Bryant

Deputy Commissioner

US DOL/ESA/OWCP

Room 1015, Vanguard Building

1111 20th Street, N.W.

Washington, DC 20036

63a

Judge Robert Brissenden

U.S. Department of Labor

Suite 201

55 West Queens Way

Hampion, VA 23669

Mr. William C. Jacobs

Director, Office of Workers’

Compensation Programs

U.S. Department of Labor

Suite S-3524, NDOL

Washington, DC 20210