It is a correct statement that an employer can never force a claimant to undergo surgery or any medical treatment, whatsoever. A court can not issue an injunction or order forcing an individual to comply with prescribed treatment. An individual's medical treatment is always at their sole discretion and properly should be. This is not to say, however, that an employer does not have options when faced with these circumstances.

The following article discusses an employer's options under the Longshore Act; the employee's rights concerning direction of medical treatment; the procedures to be followed when a dispute arises; the respective burdens of proof for the parties involved; and a summarization of pertinent case law regarding this peculiar and difficult issue.

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. ¹

Section 7(d)(4), therefore, provides an employer with an option should a claimant refuse to submit to medical or surgical treatment. If the claimant's refusal is unreasonable and not justified, no compensation shall be paid during the period of non-compliance.

Prior to the 1984 amendments, only the Secretary was permitted to make § 7(d)(4) determinations. The 1984 amendments added the clause "or administrative law judge" to this section.² Therefore, prior to the 1984 amendments, much of the litigation involving this section involved the procedure to be taken when it was invoked. Because the 1984 amendments rectified this problem, only a cursory review is necessary.

Before 1984, the Secretary was the only body permitted to review § 7(d)(4) issues. This leads to disputes as to whether an Administrative Law Judge should rule on issues of disability when there were unreasonable refusal issues outstanding. Originally, the Benefits Review Board held that an ALJ can not issue decisions regarding disability while there were outstanding § 7(d)(4) issues.³ In these cases, the ALJ was instructed to remand the case to the Deputy Commissioner for a full determination of the § 7 (d)(4) issue. The Board originally offered as support the intention to avoid piecemeal litigation.

However, in Murphy v. Honeywell Inc. ⁴ , the Board broke away from a screed of prior case law. The Hyrcyk line of cases, although avoiding piecemeal litigation, created a different problem for the courts to deal with. Frequently, there were issues as to whether a claimant was entitled to benefits regardless of § 7(d)(4) issues. In cases such as this, the Hyrcyk line of cases mandated that the Secretary make a reasonableness decision nevertheless. The Board's original efforts to avoid piecemeal litigation now caused a major breakdown in the efficiency of the Act's procedures. Therefore, in Honeywell, the Board held that an ALJ "should issue an Order of Compensation if he finds claimant entitled to compensation. Once the substantive rights and liabilities are set, the … (deputy commissioner) has something to act upon in deciding the Section 7(d) issue." ⁵

Much of the case law cited is contradictory and belabored by the Benefits Review Board. In response, Congress amended the Longshore Act in 1984 which, among other things, specifically allows the Administrative Law Judge to issue § 7(d)(4) decisions. This amendment not only provides the ALJ with jurisdiction over reasonableness issues, but allows the ALJ to suspend benefits as well. ⁶

First, the determination needs to be made as to whether the claimant's refusal is reasonable under the Act. This is an objective inquiry wherein the employer bears the burden of proof. "The recommended procedure or examination must be proven likely, as a matter of reasonable medical probability, to be of aid to a course of treatment designed to relieve the claimant's symptoms and restore a degree of his or her lost earning capacity without undue risk to his or her health and well being." ⁸ If this is established, the claimant's refusal must be considered unreasonable if an ordinary prudent person would submit to the treatment with minimal hesitation. Likewise, the converse would render the claimant's refusal reasonable and would end the inquiry, thereby disallowing the sanction.

If the employer meets its burden and shows that the claimant's refusal is unreasonable, the burden shifts to the claimant to show that the unreasonable refusal to submit to medical treatment or surgery is justified within the given circumstances. This is a purely subjective inquiry, which focuses on this particular claimant's reasons for refusing the recommended procedure. ⁹ There may be a number of reasons, which could justify an otherwise unreasonable refusal. ¹⁰

If the claimant meets his or her burden and proves that the refusal is justified under the given circumstances, the employer's request for § 7(d)(4) relief must be denied. If, however, the claimant fails to meet his or her burden by a preponderance of the evidence, the Administrative Law Judge or the District Director may, by order, suspend the payment of all further compensation to an employee during any period in which he unreasonably refuses to submit to medical or surgical treatment.

If an employer can show a refusal to undergo medical or surgical treatment as unreasonable and without justification, the § 7(d)(4) sanction can be utilized as a powerful tool to either direct medical care or deny compensation benefits.

As well, the § 7(d)(4) sanction does not sever the causal connection between the injury and disability. In Dodd v. Newport News Shipbuilding & Dry Dock Co. ¹², the Board stated "Section 7(d)(4) does not serve to sever the causal connection between claimant's injury and disability, but is a method for suspending compensation for a specific period during which claimant has unreasonably refused to undergo medical treatment." ¹³

In order to claim the sanction, the employer must have properly preserved the issue. Suspension of benefits can not be applied retroactively to terminate payments for a period prior to employer's raising the issue. ¹⁴ The sanction provides an immediate remedy for an employer when a claimant unreasonably refuses medical treatment. Therefore, it is of great importance that the issue is recognized immediately and preserved on a Notice of Controversion. ¹⁵ A subsequent argument before an ALJ urging the sanction will not be allowed unless properly preserved.

The sanction will never be allowed when doctors can not state that the condition at issue is actually aggravating the disability. ¹⁶ In Adams v. Brookfield & Baylor Constr. Co. ¹⁷ , the employer attempted to invoke the § 7(d)(4) sanction claiming that the claimant refused to undergo surgery. However, the evidence clearly indicated that no physicians were willing to state that the condition at issue even contributed to the disability. Therefore, the BRB rejected the employer's request.

The Board has also refused to apply the sanction for minor instances of noncompliance. In Totaiff v. Triple A Machine Shop ¹⁸ , the Board held that the suspension of benefits was not appropriate when a claimant missed two scheduled medical examinations. In this case, the Board found that the record was clear that the claimant had attended all previously scheduled evaluations and further found that there was an issue as to whether the claimant received notice of the missed appointments.

Finally, the § 7(d)(4) sanction is not appropriate in cases where the medical evidence is equivocal. In Malone v. International Terminal Operating Co. ¹⁹, the ALJ applied the Hrycyk test and concluded that the claimant's refusal to undergo a laminectomy was unreasonable in light of the fact that all four reporting physicians plus three consulting physicians unanimously agreed that surgery was the indicated treatment. Further, the ALJ found that the claimant's subjective reasons for refusing surgery were "transparent, unsubstantiated, and unconvincing." ²⁰

On review, the BRB found that the ALJ applied both prongs of the Hrycyk test incorrectly and remanded the case for further findings. Regarding the first, objective prong, the BRB stated that the ALJ mischaracterized the medical evidence as unanimous. They specifically noted that although all doctors agreed with the surgical procedure, they provided final deference to the treating physician (who also recommended the procedure). Because of this qualification, the BRB did not agree with the ALJ's characterization of the medical evidence as unanimous. Further, the BRB found that the ALJ erred in not addressing the treating physician's trial testimony stating that the claimant's choice was reasonable and that in retrospect, the choice may have been appropriate since the claimant's condition did not deteriorate after rejection of the surgery. The BRB remanded the case for reconsideration of the reasonableness prong and the totality of the medical evidence.

Secondly, the Board rejected and vacated the ALJ's finding on the subjective prong of the Hrycyk test. As stated previously, the ALJ found the claimant's subjective reasons for refusing surgery to be "transparent, unsubstantiated, and unconvincing."

On review, however, the Board found that the ALJ erred in not specifically addressing:

As a comment, it is impossible to imagine the circumstances, which would have to exist for the BRB to allow for suspension of benefits under this type of standard. The BRB seemed to suggest that to pass the subjective prong, a surgery would have to be accompanied by a 100% guaranty of effectiveness. As is well known, this is impossible in modern medical practice. In order to pass the intense scrutiny of the BRB, a judge's suspension of disability benefits pursuant to § 7(d)(4) must be based on factual discretion and outline in copious detail all pertinent testimony and evidence.

However, § 7(d)(4) can be used if the claimant refuses to be examined by a physician for the purpose of a medical vocational rehabilitation evaluation. ²² Therefore, the Board does seem willing to extend the sanction if a medical issue is involved, however, refuses to extend the sanction beyond the plain meaning of the Act.

First, the Board looked to the wording of the Act making suspension of benefits discretionary upon a finding of unreasonable refusal. Because the Longshore Act makes this sanction discretionary, the Board opined that the ALJ was not bound by Virginia ruling.

Second, the Board found that the principles of res judicata do not apply when the standards between the two proceedings vary greatly. Virginia requires that the refusal to submit to medical treatment be unjustified to impose suspension of benefits. The Longshore Act, on the other hand, requires such refusal to be unreasonable as well as unjustified before the Secretary has discretion to impose the sanction. The Board felt that these differences were of such significance as to defeat any principles of res judicata.

However, the Fourth Circuit on appeal vacated the BRB's decision, holding that the Board was bound to suspend compensation based upon principles of res judicata and the "full faith and credit" clause of the Constitution. The Fourth Circuit opined that these principles mandated the Board to abide by the Virginia decision and suspend compensation payments. The Fourth Circuit did not find the differences cited by the Board to be of any great significance; but instead viewed the Virginia holding as a final decision on a common issue. Thus, the Board was compelled to give the Virginia judgment the same force as it possessed in Virginia.

If the employer properly builds their medical evidence, is cognizant of the shifting burdens, and properly preserves the issue, however, the result will be the suspension of compensation benefits or forced medical compliance. In either scenario, the claim moves in a favorable direction with the hopes of a speedier resolution.