Darin Bryant vs. Ceres Marine Terminal, ALJ Krantz

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2010/BRYANT_DARIN_v_CERES_MARINE_TERMINA_2010LHC01191_(MAY_17_2012)_122901_CADEC_SD.PDF

Excerpts


The issues remaining to be resolved are (TR 14-19):
1. Whether Claimant must submit to a second independent medical examination (IME) at
Employer’s request, and
2. Whether Employer must authorize the medical treatment (surgery) recommended by Dr. Raphael
Roybal.

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B. Law and Discussion
Section 907(d) governs when a claimant under the Act shall be reimbursed by his or her employer
when he or she has paid his or her own expenses. Section (d)(1), states, in pertinent part:
(d) Request of treatment or services prerequisite to recovery of expenses; formal report of
injury and treatment; suspension of compensation for refusal of treatment or examination;
justification
(4) If at any time the employee unreasonably refuses to submit to medical or surgical
treatment, or to an examination by a physician selected by the employer, the Secretary
or administrative law judge may, by order, suspend the payment of further compensation
during such time as such refusal continues, and no compensation shall be paid at any time
during the period of such suspension, unless the circumstances justified the refusal.
33 U.S.C. § 907(d) (emphasis added). The Benefits Review Board (“Board”) has held that the analysis
under § 907(d)(4) consists of two prongs. Under § 907(d)(4), the claimant’s refusal to submit to medical
treatment or examination must be both (1) unreasonable, and (2) unjustified by the circumstances.
Pittsburg & Conneaut Dock Co. v. Director, Office of Workers Compensation Programs, 473 F.3d 253,
261 (6th Cir. 2007); citing Malone v. Int'l Terminal Operating Co., 29 BRBS 109 (1995); Hrycyk v. Bath
Iron Works Corp., 11 BRBS 238, 240-41 (1979). This analysis is commonly known as the “Hrycyk test.”


Under the test, the initial burden of proof is on Employer to show that Claimant’s refusal was
unreasonable. Hrycyk, 11 BRBS at 241-42. If Employer carries its burden, the burden shifts to Claimant
to show that the circumstances justify the refusal. Id. The “reasonableness” of a particular refusal is an
objective inquiry. Id. The principle question is: “what course would an ordinary person in the claimant's
position pursue?” Id. On the other hand, “justification under the circumstances” is a subjective inquiry,
focusing on the individual claimant's particular reasons for refusal. Id. The ALJ’s determination of
whether the refusal is reasonable or unreasonable is an issue of fact which will be upheld so long as it is
“supported by substantial evidence in light of the whole record.” Pittsburg & Conneaut Dock Co., 473
F.3d at 261; see also Gulf Best Elec. Inc. v. Methe, 396 F.3d 601, 604-605 (5th Cir. 2004).

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Employer did not consult with Claimant on the choice of physician, nor did it suggest three
options. Very clearly, “the parties” did not “submit three names of physicians that could be used” to
resolve the issue. Instead, Employer unilaterally scheduled Claimant for an IME with a doctor of its own
choosing, who is located 70 miles away from Claimant. The recommendation from the District Office
had the intention of creating a pool of three mutually-agreed-upon doctors for the IME, in an attempt to
both resolve the issue and eliminate the problem of bias. Employer’s one-sided actions did not serve this
purpose, in letter or in spirit. Therefore the argument that Employer was complying with the
recommendations of the District Office is unsupported and unpersuasive.

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Taking all of the above into consideration, I find that Employer has failed to carry its burden to
show that Claimant’s refusal was objectively unreasonable. An ordinary person in Claimant's position
would pursue the course of avoiding an IME that shows a strong possibility of bias against him,
especially when the Board recommended a more balanced approach. The burden need not shift to Claimant, and he is not required to show that, subjectively, the circumstances justified the refusal.
In conclusion, Employer has failed the Hrycyk test and Claimant’s refusal to submit to the IME
with Dr. Brooks is not unreasonable. Under Section 907(d), I will not order the suspension of the
payment of further compensation during such time as such refusal continues. Further, any suspension of
such compensation that may have occurred at any time during the period of refusal was not justified under
§907(d). Therefore, I deny the motion to compel.