Medical treatment and IMEs under the Longshore and Harbor Workers' Compensation Act

My book – “Longshore and Harbor Workers’ Compensation Act and Defense Base Act Claims 2011 Edition” is getting ready for publishing and we are finalizing the cites and references for the 2011 editiion (shipping: April 2011). Here’s a sneak preview of the Chapter 6: Medical Benefits (note: 43 footnotes with citations have been removed):

Chapter 6: Medical Benefits under the LHWCA

Section 907 of the Act requires that the
. . . employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.

The employer must respond to a request for treatment upon notice of the injury, even if the work-relatedness of the injury is challenged. The duty of the employer to provide medical treatment is absolute. The medical care provided must be both “reasonable and necessary” and appropriate for the injury.   The claimant has the right to choose his own attending physician.

The physician chosen by the claimant must submit a report to the carrier within 10 days.

The right of the claimant to choose his own physician is only limited by the ‘prohibited’ provider list of physicians and facilities who do not meet standards established by the DOL.

The employer is liable for all medical expenses for any consequences of the compensable injury, including the chosen physician’s malpractice.  While an employer is not liable for medical expenses due to the degenerative processes of aging, an employer is responsible for ‘aggravations’ of prior injuries. An employer is responsible for treatment even if the work-related injury only partly causes the need for that treatment, and that is true in psychological injury cases as well as physical injury ones.

Any injury sustained during the course of a medical examination scheduled at the employer’s request for an alleged work-related injury is covered under the LHWCA, because such an injury necessarily arises out of and in the course of employment.

Exceptions to the claimant’s choice of physician

Emergencies

The employer is allowed to select a doctor or facility the claimant can not due to the nature of his injury and the injury requires urgent treatment, the employer is to select a physician for him. The claimant must be incapacitated and in need of emergent treatment for this exception to be invoked. Once the claimant regains his faculties, then he regains the freedom to chose his own attending doctor.

Changing doctors

Once a claimant has made an initial unrestricted choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. If the claimant fails to obtain the required authorization to switch treaters, the carrier/employer does not have to reimburse the claimant for the costs of the new, unauthorized treatment. Note: referral to a specialist from an attending physician will not invoke a need for new authorization from the carrier.
         

Requesting treatment.

The claimant must report his injury and request treatment in order to trigger an employer’s responsibility to pay for such care. There are many instances where an employee does not have to formally report his injury – for example, where an employer’s representative is at the scene of the accident. An employer “has knowledge of an injury” when an accident occurs and a reasonable person could conclude that there might be liability for compensation and should investigate further.

Mere knowledge of an accident is not enough to make an employer liable for paying medical bills – accident happen everyday and no treatment is sought. The employee must affirmatively request care in order to trigger responsibility on the part of the employer for any resulting medical bills.

The employee does not have to request treatment when a request would be futile. For example, if the claimant was fired for reporting the accident, there would be no duty on the part of the claimant to seek treatment from the employer.

Judicial review of medical treatment

A claimant only has to present the opinion of a qualified physician that treatment was necessary for a work-related condition to establish a prima facie case for compensable medical treatment. The judge can order the employer to make payment for medical treatments already received by the claimant. The Judge can also order that a specific course of medical care be authorized by the employer. However, a judge can not pick specific medical facilities for the care to take place – that would abrogate the claimant’s right to pick his own doctor.

A judge has no authority to deny a medical expense on the technical grounds such as a particular physician’s expertise, whether the fee charged was within the customary range, or where the medical treatment was not documented. The Judge can only rule on the reasonableness of the medical services.

It is up to the employer to raise the reasonableness and necessity of treatment before the presiding judge.

What counts as medical treatment?

Stories are legion and Longshore caselaw is replete with references to dubious medical treatment prescribed by treating physicians and ruled to be the employer’s expense (for example – the install of a jacuzzi for the ‘recovery’ of a claimant, a physician ordered who ordered his patient relocate to a ‘warmer climate,’ or a doctor writing prescriptions for first class travel). The regulations define medical care to include laboratory, x-ray, and other technical services, such as prosthetic devices for the care and treatment of the injury or disease. Treatment does not have to be ‘medically accepted’ but merely “helpful.” The treatment does not have to be administered by a therapist or practitioner with any sort of license. Meeting this rather low burden are pseudo-medical treatments such as biofeedback.

Chiropractors are allowed to treat Longshore patients and are paid for their care only to the extent that it consists of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings. Chiropractors are not to be paid for treating shoulders, hips, knees, etc., or administering physical therapy.

Travel to and from medical appointments, as well as special travel needs, are generally compensable.
Generally, travel will be reimbursed for physicians within 25 miles of the residence of the claimant.

Regulation 20 C.F.R. § 702.403 states:
In determining the choice of physician, consideration must be given to availability, the employee’s condition, and the method and means of transportation. Generally, 25 miles from the place of injury or the employee’s home is a reasonable distance to travel, but other pertinent factors must also be taken into account.

Independent Medical Examinations

33 U.S.C. § 907(e) states:
In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted. Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required. The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].

The IME Process

When a medical question is raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive a report to determine the diagnosis, estimate the claimant’s physical impairment, or comment on whether additional medical treatment is necessary.

Following the initial report, either the claimant or the employer can then request a review or a reexamination of the employee by a different physicians employed or chosen by the Secretary within two weeks.

The findings of the initial examining physician’s findings are not binding on any party.

Immediately following the initial exam, the employer or carrier may request, to have the employee examined.

If the claimant refuses to attend an IME

If the employee refuses to submit to the examination, the proceedings shall be suspended and no compensation is paid until the claimant attends the exam. This applies equally to initial exam and employer-requested IMEs. A claimant’s failure to attend an exam with the employer’s chosen examining physician can not be excused. Claimants have argued that the physician chosen by the employer are biased or incompetent as excuses for not attending exams. A Judge can not excuse a failure to attend an IME on the grounds that the claimant lacks confidence in the physician, although that would obviously be accepted by the court as a reason to not allow the doctor to act as a treating physician.

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com