MARTIN v. SUNDIAL MARINE TUG AND BARGE WORKS INCORPORATED (2021)

United States Court of Appeals, Ninth Circuit.2021-09-02No. No. 20-70147

Summary · law.co

Holding. The petition for review was denied, upholding the denial of medical benefits because Martin failed to seek employer authorization for the right-knee surgery before the procedure was performed.

Rick Martin sought reimbursement for right-knee microfracture surgery performed by Dr. Timothy Bollom in August 2008 under the Longshore and Harbor Workers' Compensation Act. To recover medical expenses, the Act requires that a claimant first request employer authorization for the medical services. The central dispute was whether Martin's treating physician, Dr. Michael Johnson, had referred Martin to Dr. Bollom specifically for right-knee surgery or for left-knee surgery.

The court examined the medical records and found substantial evidence supporting the administrative law judge's conclusion that Dr. Johnson's August 2006 referral to Dr. Bollom concerned only left-knee treatment. Dr. Bollom's initial recommendations, imaging reports, and clinical notes all referenced only the left knee as a candidate for surgical intervention, while the right knee was noted as unlikely to benefit from arthroscopic procedures. Because Martin failed to obtain authorization for right-knee surgery before undergoing the procedure, he was not entitled to reimbursement.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a referral from treating physician to specialist satisfied the statutory requirement to seek employer authorization for medical treatment
Scope of medical authorization when referral documentation addressed only left knee, not right knee
What constitutes a sufficient request for authorization under the Longshore and Harbor Workers' Compensation Act

Procedural posture

Martin appealed the Benefits Review Board's affirmance of an administrative law judge's denial of medical benefits, seeking review in the Ninth Circuit.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Rick Martin petitions for review of a decision of the Benefits Review Board (“BRB”) affirming a decision of an administrative law judge (“ALJ”) denying medical benefits under the Longshore and Harbor Workers’ Compensation Act (the “Act”), 33 U.S.C. §§ 901–950. We have jurisdiction under 33 U.S.C. § 921(c) and deny the petition.

1. An employer is responsible for reasonable and necessary medical expenses associated with a claimants work-related injury. 33 U.S.C. § 907(a); M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir. 2006). To be entitled to reimbursement for incurred medical expenses, a claimant must have sought the employers authorization for the performed services. See 33 U.S.C. § 907(d)(1)(A) (stating that a prerequisite to recovery of expenses is that the “employer shall have refused or neglected a request to furnish such services”); Nardella v. Campbell Mach., Inc., 525 F.2d 46, 49–50 (9th Cir. 1975) (finding no entitlement to reimbursement where the claimant failed to request that his employer provide him with the performed treatment).

2. At issue is whether Martin is entitled to reimbursement for right-knee surgery performed in August 2008 by Dr. Timothy Bollom, a microfracture surgery specialist. The parties do not dispute that Martin visited his treating physician, Dr. Michael Johnson, for “persisting bilateral knee pain” before that surgery; that Dr. Johnson referred Martin to Dr. Bollom; and that Sundials workers’ compensation insurance carrier, SAIF, denied the referral in August 2006. The only dispute is whether Martin sought—through Dr. Johnsons referral to Dr. Bollom—authorization for right-knee surgery. Substantial evidence supports the ALJs factual finding that the referral did not concern the right knee. See Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir. 1983).

As the BRB noted, “[a]t the time of the referral, Dr. Bollom had recommended only left knee surgery” and his “office note refers only to left knee surgery.” Considering the MRIs in June 2006, Dr. Bollom had opined that the “the right knee would be difficult to improve upon with an arthroscopic procedure ․ for the left knee, one could consider arthroscopic debridement and probable microfracture.” Dr. Johnsons note referring Martin to Dr. Bollom for treatment in August 2006 was as follows:

[Martin] returns for followup today with persisting bilateral knee pain. He has recently seen another physician regarding his left knee who suggested an arthroscopic surgery. In reviewing his notes there is an MRI, which noted osteochondral defects of both medial and lateral femoral condyles possible horizontal cleavage tear of the posterior horn medial meniscus and grade III arthritic changes in the medial compartment. These findings are certainly consistent with the patients symptoms and he would like a referral to another physician to pursue further treatment. Referral made to Dr. Bollom and I will see him back as needed.

The referenced MRI findings relate only to the left knee. Martin visited Dr. Douglas—a family practice physician overseeing Martins use of narcotics—one month later. Dr. Douglass notes explain that Dr. Johnson “has recommended intervention surgically into his LEFT knee, but the insurance is denying that at this point.” The ALJ did not clearly err in finding that no referral was made for right-knee surgery on this record.

PETITION FOR REVIEW DENIED.

FOOTNOTES

. Martins claim that the ALJ erred in calculating his average weekly wage when awarding disability benefits is addressed in a contemporaneously filed opinion.

. Martin argues in the alternative that even if Dr. Johnson never referred him to Dr. Bollom for right-knee treatment in 2006, Martins 2005 request to a SAIF claims adjuster to see Dr. Bollom and its denial satisfied § 907. But, Martin failed to raise this argument in his petitions for review below and the BRB did not address it. We therefore find it forfeited. See Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1023–24 (9th Cir. 2007); Zumwalt v. Natl Steel & Shipbuilding Co., 796 F. Appx 930, 931 (9th Cir. 2019); 20 C.F.R. § 802.211(a).

. Because we find the ALJ did not err in denying medical benefits on this ground, we do not reach the question of whether the right-knee surgery was reasonable and necessary.