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).
© 2018 Ira J. Rosenzweig