In a recent decision, the Benefits Review Board (BRB) clarified the weight afforded to “treating” physicians’ opinions and endorsed the use of judicial notice of prior Decisions and Orders discussing a “treating” physician’s similarly worded medical reports.
In Rogers Avendaño Gabriel v. SOC, LLC et al, BRB No. 23-0167 (June 7, 2024), the BRB addressed the claimant’s arguments that the ALJ erred in not giving greater weight to the treating physician’s opinion and improperly took judicial notice of prior similar medical reports referenced in other OALJ decisions and orders; reports not in the record. In the Avendaño decision, the ALJ afforded less weight to the opinion of the claimant’s treating psychiatrist based on the physician’s “failure to provide detailed conclusions specific to Avendaño;” as the physician instead provided a report that mirrored, and/or was very similar to, reports of different claimants. The ALJ also found that the treating psychiatrist’s conclusion greatly relied on the application of psychological tests that lacked persuasive value and the claimant’s self-reporting, which was questionable and unreliable.
The Weight of the Treating Physician’s Opinion
Claimants in DBA claims routinely contend that the opinion of the treating physician should automatically be given significant weight on all disputed issues. However, a treating physician may not have knowledge of the entirety of a claimant’s medical picture, which could tarnish any opinion on causation, work status, or recommendations for future medical treatment.
In Avendaño, the claimant argued the ALJ failed to afford his treating physicians’ opinions proper weight. In support of this argument, the claimant alleged that prior federal courts have held the opinions of treating physicians should be accorded “considerable and special weight.” While the BRB noted that the cases relied upon by the claimant address the weight to which a treating physician’s opinion may be entitled in some instances, the BRB affirmed the ALJ’s decision, and rejected the claimant’s argument that a claimant’s treating physician is automatically entitled to significant weight on all issues.
The BRB also questioned whether Avendano’s physicians were actually “treating physicians,” as both physicians saw the claimant on only one occasion for purposes of rendering a diagnosis. Despite the claimant choosing both physicians for diagnostic purposes, the BRB found they were no more of a “treating” physician than the evaluating expert physicians. Importantly, the BRB found that a treating physician’s opinion should not be given considerable weight when there is contrary evidence disputing the treating physician’s opinion or treatment recommendations. Instead, when there are conflicting medical opinions, it is the responsibility of the ALJ to weigh the evidence. This includes the quality of the physician’s reasoning, bases for any determinations, and whether the physician’s overall rationale is supported.
Employers and carriers should be mindful of any analogous arguments raised by claimants, and may wish to consider citing the Avendaño decision to refute any notion that a treating physician’s opinion is entitled to special and considerable weight.
Similarly Worded Medical Reports
Another recent trend has developed in claims filed by foreign nationals under the Defense Base Act in which the verbiage in medical reports of treating physicians “mirrors” wording from these physicians’ prior reports for other claimants in prior DBA claims. Given the credibility concerns of a treating physician who prepares reports with identical language for different claimants, employers and carriers have challenged the opinions of these physicians by requesting the OALJ take judicial notice of the prior decisions and orders discussing similar language of these same physicians’ prior medical reports in other cases before the OALJ.
In Avendaño, the claimant argued the ALJ failed to afford his treating physicians’ opinions proper weight and erred in taking judicial notice of reports not in evidence to discredit the opinion of the treating psychiatrist. In affirming the ALJ’s decision, the BRB noted that the factfinder is entitled to take judicial notice of verifiable government websites and documents, including previous decisions which are a matter of public record. The BRB cautioned that the parties must be presented with an opportunity to respond should an ALJ take judicial notice of any document not submitted into the record. The BRB’s rationale is consistent with OALJ Rules of Practice and Procedure, which require that the parties must be given adequate notice to “show the contrary of the matter noticed.” See 29 C.F.R. § 18.84. However, the BRB found that any improper judicial notice taken by the ALJ was “harmless,” since the ALJ provided sufficient rationale for discrediting the opinion of the treating psychiatrist. As a result, the BRB affirmed the denial of the claimant’s claim.
The investigation of a treating physician’s prior reports and opinions is critical in defending DBA claims filed by foreign nationals. A general search of any decision discussing a particular physician can be accessed through the “Keyword Search” feature on the OALJ website (www.oalj.dol.gov). A search of a specific decision discussing the weight of a physician’s opinion can be accessed through the “Case Status Lookup” feature on the OALJ website by entering the OALJ case number. Please note that the input of the OALJ number is case sensitive and should be entered in the format “yyyyaaannnnn,” with the “y” reflecting the year the case was docketed, the “a” being the acronym of the case type (“LDA” for DBA claims), and the “n” being the sequential filing number. Prior BRB decisions can be accessed through the BRB’s website (https://www.dol.gov/agencies/brb) through the “Browse Decisions” or “Search Decisions” features.
In the event favorable decisions discrediting a claimant’s treating physician are obtained, then employers and carriers may wish to consider submitting the prior decisions into evidence prior to Formal Hearing to comply with the OALJ Rules of Practice and Procedure and to avoid any potential basis for an appeal. The prior decisions may be submitted as affirmative evidence in defense of the claimant’s claim, or it is possible that the prior decisions may be offered and introduced as rebuttal or impeachment evidence during a later stage of discovery or at Formal Hearing. Please note that only an ALJ’s prior decisions, orders, or rulings discussing a physician’s similarly worded reports (and not the actual medical reports) may be submitted as evidence through the use of judicial notice.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
Francis Waguespack, Esq.
Office: New Orleans, LA
fwaguespack@gallowaylawfirm.com | 504-648-6340
Heather Angelico, Esq.
Office: New Orleans, LA
hangelico@gallowaylawfirm.com | 504-648-6278
Kathleen Charvet, Esq.
Office: New Orleans, LA
kcharvet@gallowaylawfirm.com | 504-648-6278