Federal Appeals Court Makes Audiologist Ruling in LHWCA Case, Siding With Claimant

The Defense Base Act (DBA) is an extension of the Longshore and Harbor Workers Compensation Act (LHWCA). The LHWCA provides workers’ compensation benefits to qualifying maritime workers and longshoremen and can provide death benefits to their surviving family members. DBA cases are often contentious and the claims process is frequently drawn out and confusing. In many instances, insurance companies rely on delaying tactics to successfully defend or dispute claims.

In a recent LHWCA case, the claimant worked as a sheet-metal mechanic from 2003 to 2009. After leaving the company, the claimant complained of hearing loss and, in 2014, met with an audiologist to be assessed. His selected audiologist indicated that the claimant suffered from a 17.2% binaural hearing impairment under the American Medical Association’s Guide to the Evaluation of Permanent Impairment. Following the finding, the claimant presented the results to his former employer’s claims adjuster. In May 2014, the company filed a report recognizing the claim.

After recognizing his claim, the company scheduled him for a follow-up audiogram using the company’s preferred audiologist. The claimant complied, and the company’s preferred audiologist found that the claimant’s level of hearing impairment was 0%, albeit with “mild high-frequency sensorineural hearing loss. The company took the position that it would only accept liability for medical benefits as indicated by the result of the audiogram completed by their selected audiologist. Subsequently, in 2015, the claimant filed a formal claim for compensation under the LHWCA. In response, the company reiterated its position that it would only authorize appointments for hearing aids from its preferred audiologist. The claimant instead requested that his original audiologist be used to conduct the fitting, and the company refused.

The claim proceeded, and in 2016, an administrative judge denied the LHWCA claim. The administrative judge denied the claim again following a move of reconsideration by the claimant, who then appealed the decision to the Department of Labor’s Benefits Review Board. In 2017, the Board unanimously affirmed the denial of compensation benefits but reversed and remanded to the District Director regarding medical benefits. The board held that the claimant did not “have a statutory or regulatory right to choose [his] own audiologist[].” The claimant moved for reconsideration and, in 2021, ruled that he could choose his own audiologist as an audiologist is a “‘physician’ such that the Claimant is permitted his initial choice of audiologist pursuant to Section 7(b) of the [LHWCA] as a matter of statutory construction.” The company then filed a timely appeal.

The appellate court opinion states that the only decision before them is whether audiologists are physicians as outlined by § 907(b) of the LHWCA. The LHWCA states that if a covered employee is injured, the employer must furnish such medical, surgical, and other attendance or treatment . . . for such period as the nature of the injury or the process of recovery may require.” 33 U.S.C. § 907(a). And a claimant under the LHWCA “shall have the right to choose an attending physician authorized by the Secretary to provide medical care under this chapter as hereinafter provided.” Id. § 907(b). After engaging in an exhaustive four-part examination of the role of an audiologist, the appellate court ruled that audiologists are physicians, finding that the second decision by the Board was correct in holding so.

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If you or someone you love has or is considering filing a Defense Base Act claim, let the attorneys at Friedman Rodman & Frank fight to help you recover the damages you deserve. Expenses and injuries sustained on the job can quickly become overwhelming, and having an experienced roster of DBA attorneys by your side can make a world of difference in the compensation you receive. Our experienced attorneys have successfully represented injured workers at every stage of their claims, ensuring that they obtain the compensation that they deserve. With our team, you can have faith that your claim is being pursued properly. If you have questions about your case, call us today at 877-627-5116 and schedule a free and no-obligation initial consultation with a DBA lawyer.