Claimants do not have a statutory or regulatory right to select their own audiologist, according to the Benefits Review Board.
At the hearing before the Administrative Law Judge in Jones v. Huntington Ingalls, the parties entered into a number of stipulations. The employer agreed to authorize hearing aids for the claimant, but argued that the claimant could not choose his own audiologist to provide the aids. In examining the issue of entitlement to select an audiologist, the Board noted that active supervision of a claimant’s medical care falls to the District Director under Section 7(b) and 20 C.F.R. § 702.401 et seq., including the determination of “the necessity, character and sufficiency of any medical care furnished or to be furnished the employee.” The Board further explained that disputes over factual matters relating to treatment, such as whether a claimant sought authorization for medical treatment, fall to an ALJ. The Board said the issue before it did not involve a factual matter requiring resolution by an Administrative Law Judge.
Further explaining the statutory scheme, the Board instructed that Section 7(b) gives a claimant the right to choose an “attending physician,” and that Section 702.204 of the regulations defines “physician” as “doctors of medicine (MD), surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law … Naturopaths, faith healers, and other practitioners of the healing arts which are not listed herein are not included within the term ‘physician’ as used in this part.”
The Board observed that “audiologists” are not included in the definition of the term “physician,” therefore, a claimant does not have the right to choose an audiologist. The Board recalled Potter v. Electric Boat Corp., 41 BRBS 69 (2007), which held that a claimant’s choice of pharmacists should be regulated by the District Director, with the right of direct appeal to the Board. Similarly, the Board found that selection of an audiologist concerns the “character and sufficiency” of a medical service, an aspect of the claimant’s treatment to which the District Director is authorized to supervise.
Jones v. Huntington Ingalls, Inc., 16-0690, 51 BRBS 29 (10/10/2017).
An administrative law judge cannot determine rights under contracts for medical services, according to a recent decision from the Benefits Review Board.
In Watson (Wardell Orthopaedics) v. Huntington Ingalls Industries, the employer voluntarily paid all benefits arising from the claimant’s knee injury, including medical benefits. However, the employer paid one provider less than half its claimed invoice, alleging that a series of contracts the employer had with its health insurance company and that insurer’s affiliates allowed it to pay reduced fees for the medical provider’s services. Over the employer’s objection, the administrative law judge determined she had authority over the dispute. The employer filed an interlocutory appeal to the Benefits Review Board.
The Board began its analysis of the issue presented by recognizing that Section 19(a) of the Act grants an ALJ “full power and authority to hear and determine all questions in respect of such claim.” This statute has been interpreted as allowing an ALJ to hear and determine contractual issues that are necessary to the resolution of a claim. For example, an ALJ may determine rights under a workers’ compensation insurance policy. However, the U.S. Fifth Circuit Court of Appeals has held that Section 19(a) does not grant jurisdiction for an ALJ to consider contractual issues wholly unrelated to a claim for compensation.
The Board determined that the ALJ could consider the amount of fees due to the medical provider, but could not adjudicate whether the contracts with the health insurer entitled the employer to reduced fees. The Board found that the primary issue before the ALJ was the amount of fees to which the medical provider was due. The Board recognized that the medical provider could bring its own claim for these fees, and the ALJ had the authority to determine the amount of the fees at the prevailing community rates. However, the Board held that interpreting the contracts the employer had with its health insurer was not “in respects” of a claim, and could not be considered by the ALJ. According to the Board, “[i]nterpretation of these contracts goes beyond that which is necessary to resolve the claim under the Act.”
Watson (Wardell Orthopaedics) v. Huntington Ingalls Industries, BRB No. 16-0545 (6/30/17).
© 2018 Ira J. Rosenzweig