     Case: 16-60835        Document: 00514317390       Page: 1    Date Filed: 01/23/2018




                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                       No. 16-60835
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
PORTS AMERICA LOUISIANA, INCORPORATED,                                   January 23, 2018
                                                                           Lyle W. Cayce
                 Petitioner,                                                    Clerk

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; ALEXANDER SCOTT,

                 Respondents.




                               Petition for Review of an Order
                                of the Benefits Review Board
                                      BRB No. 16-0073


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
       This dispute arises under the Longshore and Harbor Workers’
Compensation Act (LHWCA). 1 Ports America Louisiana, Inc. (Ports America)
appeals a Benefits Review Board (Board) decision affirming an order by the
Department of Labor district director that required Ports America to pay for




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   33 U.S.C. §§ 901–950.
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certain medical treatments for its injured employee, Alexander Scott. We
affirm.
                                         I
      Longshore foreman Alexander Scott, age 57, injured his hip and lower
back when he was struck from behind by a forklift at work. Scott consented to
treatment from Ports America’s physician, Dr. Steiner, and had been under his
care for approximately five months, when Dr. Steiner told Scott he had reached
“maximum medical improvement,” did not need additional treatment, and was
capable of “returning to his full duty activity without restriction.”       Scott
insisted that he was still in pain and did not feel comfortable returning to work,
but Dr. Steiner told him to try to work and to return the next month for a
check-up.
      Scott did not go back to work. Instead, he sought the opinions of other
physicians, who advised him not to recommence his employment duties. When
Scott returned to Dr. Steiner in August for the follow-up visit, Dr. Steiner again
told Scott that he should return to work and offered no additional treatment.
Dr. Steiner recommended an MRI, but told Ports America that Scott’s reports
of continued back pain were “subjective complaints.” Five days later, Scott met
with Dr. Bostick, who concluded that Scott had an altered gait and that he
should undergo additional physical therapy, take medication for his pain, start
using a crutch, and refrain from work.
      When Ports America refused to pay for the treatment by Dr. Bostick and
ceased compensation payments, Scott requested an informal conference with
the district director. The district director found that Scott was entitled to
choose another physician because Dr. Steiner had “effectively discharged” him
by “refus[ing] further medical treatment.” The district director also ordered
that Scott undergo an independent medical examination (IME) in light of the
“clear disagreement” between Dr. Bostick and Dr. Steiner about whether Scott
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                                       No. 16-60835
needed additional treatment.           The district director’s order required Ports
America to pay for the treatment by Dr. Bostick and for the IME. Ports
America appealed to the Board, which held that Ports America was only
obligated to pay for the services Dr. Bostick provided Scott after the date of the
district director’s order, but otherwise affirmed the district director’s decision. 2
       The LHWCA permits parties adversely affected by a final order of the
Board to seek review by the federal court of appeals pursuant to 33 U.S.C.
§ 921(c). 3 On appeal, Ports America asserts that that the district director
failed to apply the correct standard in determining whether Scott’s change-of-
physician request was permissible.            It also argues that the IME was not
justified by a medical question as required by statute. We review the decision
of the Board to ensure that it correctly reviewed the decision of the district
director. 4 In doing so, we independently review the record, applying the same
standards the Board used to review the decision of the district director. 5
                                             II
       The only issues before us are whether the Board erred by affirming the
district director’s order requiring Ports America to pay for Scott’s treatment
with Dr. Bostick and for the IME. Compensation payments are not at issue.
                                              A
       The LHWCA requires employers to provide medical treatment until the
injured employee recovers. 6 Employees are entitled to choose a physician from


       2  While evidentiary issues must be heard by an ALJ before they are reviewed by the
Board, Craven v. Dir., Office of Workers Comp. Programs, 604 F.3d 902, 906 (5th Cir. 2010),
discretionary decisions by the district director may be appealed directly to the Board, see
Jackson v. Universal Mar. Serv. Corp., 31 BRBS 103 at *3 (Ben. Rev. Bd. 1997).
        3 33 U.S.C. § 921(c).
        4 See Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119 n.1 (5th Cir. 1980); see

also Island Operating Co., Inc. v. Dir., Office of Worker's Comp. Programs, 738 F.3d 663, 666
(5th Cir. 2013) (citing Ceres Marine Terminal v. Hinton, 243 F.3d 222, 224 (5th Cir.2001)).
        5 See Avondale, 623 F.2d at 1119 n.1.
        6 33 U.S.C. § 907(a).

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a list of authorized individuals 7 but may not obtain a new physician without
the consent of the employer or the district director. 8
       The LHWCA and its implementing regulations outline several avenues
for permitting an employee to receive treatment from a different physician.
Under 33 U.S.C. § 907(b), the district director may allow an injured employee
to change physicians “on his own initiative or at the request of the
employer . . . when in his judgment such change is desirable or necessary in
the interest of the employee.” 9           It also states that changes of physicians
initiated by employees “shall be permitted in accordance with regulations of
the Secretary.” 10 Section § 907(c)(2) establishes:
       An employee may not change physicians after his initial choice
       unless the employer . . . or [district director] has given prior
       consent for such change. Such consent shall be given in cases
       where an employee’s initial choice was not of a specialist whose
       services are necessary for and appropriate to the proper care and
       treatment of the compensable injury or disease. In all other cases,
       consent may be given upon a showing of good cause for change. 11

       The parties dispute whether Scott’s change-of-physician request should
be evaluated under § 907(b)’s “desirable or necessary in the interest of the
employee” standard or the “good cause” standard in § 907(c)(2). The district
director approved Scott’s change-of-physician request because the director
concluded that the change was “desirable or necessary” to further Scott’s



       7 Id. § 907(b); 20 C.F.R. § 702.403.
       8 33 U.S.C. § 907(c)(2).
       9 33 U.S.C. § 907(b); 20 C.F.R. § 702.406(b) (“The district director . . . may order a

change of physicians or hospitals when such a change is found to be necessary or
desirable . . . .”); see also 20 C.F.R. § 702.407(c) (entrusting “[t]he determination of whether a
change of physicians . . . should be made or is necessary” to the district director).
       10 33 U.S.C. § 907(b).
       11 Id. § 907(c)(2); see also 20 C.F.R. § 702.406(a) (requiring consent to a change of

physician when a specialist is needed and permitting consent “[i]n all other cases . . . upon a
showing of good cause for change”).
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medical interests. Ports America argues that § 907(b) applies only when an
employee does not request the change of physician. Requests initiated by the
employee, it contends, are governed by the good cause standard in § 907(c)(2).
Although the district director’s choice of legal standards for evaluating Scott’s
proposed change of physician is subject to de novo review, we review the
district director’s decision allowing Scott to change physicians for abuse of
discretion. 12
       Because the district director’s decision to allow Scott to seek treatment
from another physician was not an abuse of discretion under either the
“desirable or necessary” or “good cause” standard, we need not decide which
applies in this case. We assume, arguendo, that the more demanding “good
cause” standard applies. 13
       Precedent from this court interpreting § 907(d) establishes that when an
employer’s physician tells an employee “he is recovered from his injury and
requires no further treatment” the employee “has, in effect, been refused
treatment by the employer.” 14 Ports America urges that Dr. Steiner did not
refuse to treat Scott because he scheduled a follow-up visit in August 2015 and
ordered an MRI. Viewed in the context of Dr. Steiner’s repeated statements
that Scott required no further treatment, had reached maximum medical
improvement, and should return to work without any restrictions in spite of
Scott’s continued complaints of pain, scheduling a follow-up visit does not
refute the evidence supporting Scott’s request to obtain an assessment and




       12 See 5 U.S.C. § 706.
       13 See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969) (stating that remand
would be “an idle and useless formality” when the substance of the agency decision was
correct).
       14 Atl. & Gulf Stevedores, Inc. v. Neuman, 440 F.2d 908, 911 (5th Cir. 1971); see also

Roger’s Terminal & Shipping Corp. v. Dir., Office of Worker’s Comp. Programs, 784 F.2d 687,
693 (5th Cir. 1986).
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opinion from Dr. Bostick, who found that Scott had an altered gait and
concluded that Scott should not return to work. Dr. Steiner had prescribed no
additional medication for pain, restrictions at work, nor continued therapy.
Ports America represented to the district director that the August 20 check-up
was a “final follow-up” and that Dr. Steiner had “nothing further to offer
[Scott].” While Ports America’s position has changed on appeal, its previous
interpretation of Dr. Steiner’s reports as the end of treatment further supports
a conclusion that the district director did not abuse his discretion.
         The bounds of § 907(c)(2)’s good cause standard, coupled with the
inherent discretion bestowed on district directors to supervise the cases within
their charge, 15 suggest the district director had wide latitude to decide whether
to grant Scott’s request. The district director’s order allowing Scott to obtain
a new physician and requiring Ports America to pay for Dr. Bostick’s services
was based on good cause and therefore was not an abuse of discretion.
                                               B
         We also agree with the Board’s conclusion that the district director did
not abuse his discretion in ordering an IME for Scott and requiring Ports
America to pay for it. Section 907(e) provides that “[i]n the event that medical
questions are raised in any case,” district directors may order that the
employee be examined by an independent medical professional of the director’s
choosing. 16 The statute is clear that district directors have discretion to assign
the cost of the IME to the employer. 17 The only issue in Scott’s case is whether
there was a “medical question” about Scott’s injury within the meaning of
§ 907(e). We review the issue de novo, 18 deferring to the OWCP Director’s


         15 See, e.g., 20 C.F.R. § 702.407(c).
         16 33 U.S.C. § 907(e).
         17 Id.
         18 See 5 U.S.C. § 706; see also Augillard v. Pool Co., 31 BRBS 62 at *2 (Ben. Rev. Bd.

1997).
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interpretation of the LHWCA according to “the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it power to persuade.” 19
       Based on this review, we conclude that there is a medical question. The
regulations implementing § 907(e) clarify that medical questions about the
“appropriate diagnosis, extent, effect of, appropriate treatment, and the
duration of any such care or treatment,” may justify an IME. 20
       As both the district director and Board determined, Dr. Steiner and Dr.
Bostick disagreed about whether Scott’s gait was normal and whether he
needed additional treatment or should return to work. The disparity in views
about the proper duration and scope of Scott’s treatment provides adequate
justification for the district director’s decision to order an IME. Despite Ports
America’s argument to the contrary, it is irrelevant that Dr. Steiner and Dr.
Bostick were both chosen by Scott as medical providers. The statute does not
predicate IMEs on a dispute between a physician hired by the employer and
the patient’s chosen physician.          It requires only that there be a “medical
question[],” 21 and the disagreement between Steiner and Bostick raises such a
question.     The district director properly concluded that the disagreement
between the two physicians was a medical question. The director’s decision to
order an IME and impose the costs on Ports America was not an abuse of
discretion.
                                             C
       Ports America contends that upholding the Board’s affirmance of the
district director’s order will lead to “physician shopping.” We are skeptical.



       19 Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001) (quoting United States v. Mead
Corp., 533 U.S. 218, 228 (2001)).
       20 20 C.F.R. § 702.408.
       21 33 U.S.C. § 907(e).

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The Act’s dispute resolution procedures are designed to prevent employees
from submitting unfounded change-of-physician requests.                          The district
director, who by design is familiar with the details of the case and the parties
involved, is empowered with discretion to review the facts and permit
employees to change physicians as warranted. 22                     If there are unresolved
medical questions, the director can also order an IME by an unbiased
physician. 23 The district director serves as a gatekeeper, separating frivolous
requests from legitimate ones.
                                       *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the Board.




      22   33 U.S.C. § 907(b); 20 C.F.R. §§ 702.406, 407(c).
      23   33 U.S.C. § 907(e); 20 C.F.R. § 702.408.
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