BRB Dismisses DBA Appeals When Ugandan Claimants Refuse to Attend Medical Examinations

What happens when DBA claimants refuse to attend a defense medial evaluation on the basis that the proposed examiner is not licensed in the claimants’ home country?  In two cases, Godfrey Kikonygo v. Triple Canopy, Inc., BRB No. 24-0077, OALJ No. 2023-LDA-02649 and Boneventure Kajumbi v. Constellis Group, BRB No. 24-0085, OALJ No. 2023-LDA-02663, (March 21, 2024), the Benefits Review Board has rejected the Claimant’s appeal on procedural grounds and hinted that the Claimant’s stated reasons for refusal may be unreasonable.

The Facts and Claims

This Benefits Review Board (“BRB”) decision involves two claims brought under the Defense Base Act with similar facts. Claimants, both citizens of Uganda, filed claims under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§901-950 (“the Act”), as extended by the Defense Base Act, 42 U.S.C. §§1651-1655 (“DBA”), for alleged psychological injuries related to their overseas employment with Employers. After the claims were referred to the Office of Administrative Law Judges, the Employers and Carriers scheduled in-person, psychological defense medical evaluations (“DME”) with their chosen experts.

Claimants objected to the DMEs because the U.S. licensed physicians were not licensed in Uganda. The Employers moved to compel Claimants’ attendance at the DMEs and for the suspension of compensation under Section 7(d)(4), 33 U.S.C. §907(d)(4). Claimants responded that the DMEs violated the Uganda Medical and Dental Practices Act and the Uganda Medical and Dental Practitioners Council Code of Ethics, which make it a crime to practice medicine in Uganda without a Ugandan license. Claimants argued the DMEs constituted the practice of medicine in Uganda and were therefore prohibited. By attending, they claimed they would be either abetting or committing a crime, which justified their refusal to attend the DMEs.

The Rulings

The Administrative Law Judges (“ALJ”) denied the motions to compel, each determining they did not have the authority to compel a citizen of Uganda to attend a psychological evaluation taking place in Uganda. Nonetheless, the ALJs rejected Claimants’ contentions that the DMEs constituted the illegal practice of medicine in Uganda and that Employers’ experts must be licensed pursuant to the Uganda Act. The ALJs determined that the experts were qualified to conduct the examinations under 29 C.F.R. §18.62(a)(1) and Rule 35 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 35. One ALJ determined Claimant’s refusal to attend the DME was “not legally justified” and deemed it “unreasonable” under 33 U.S.C. §907(d)(4). The Chief ALJ determined Claimant “cannot refuse to attend” the DME on the grounds that Employer’s expert was not licensed in Uganda. Both ALJs reserved ruling on Employers’ motions for suspension of compensation under Section 7(d)(4) but noted the possibility of sanctions under 29 C.F.R. §18.57(b)(i)-(vi) if the Claimants maintained their refusals to attend the DMEs on the grounds that Employers’ experts were not licensed in Uganda.

Both Claimants appealed the ALJs’ discovery orders. The Employers and Carriers moved to dismiss the appeals asserting they were interlocutory orders. The Claimants argued that the ALJs’ interlocutory orders met the collateral order exception. The BRB denied considering the appeals, deferring to the broad discretion afforded an ALJ in directing discovery. The BRB found that the OALJ Orders, which neither awarded nor denied benefits, were only reviewable on an abuse of discretion standard following a decision on the merits.

Interestingly, the Board chose to comment on some of the Claimants’ arguments. The BRB was not persuaded by Claimants’ argument that the Claimants may be subject to criminal prosecution. The BRB found that, although Claimants alleged the DMEs constitute unlawful practice of medicine under Ugandan Law, they presented no evidence supporting their inference that a Claimant, as opposed to a physician who violates the law, would be subject to penalties for attending a DME. The BRB has not only placed the determination of whether suspension of compensation under Section 7(d)(4) and the possibility of sanctions under 29 C.F.R. §18.57(b)(i)-(vi) back in the hands of the ALJs, but it has intimated it does not find Claimant’s reasons for refusal to attend the DME to be persuasive, should the issue return to the BRB on a future appeal.