When the Office of Administrative Law Judges (OALJ) of the U.S. Department of Labor reviews Defense Base Act (DBA) claims, it may give more weight to a treating physician’s opinion. However, that is not always the case, particularly if that physician’s opinions lack objective testing or indications of proper methodology in forming a diagnosis. Four recent OALJ decisions have highlighted the importance of validity testing, diagnostic testing and structured interviews, further discussing the importance of not relying on Claimant’s self-reporting in order to make psychological diagnoses.
OALJ Has Discretion When Evaluating Medical Opinion Evidence
While the OALJ may give special weight to a treating physician’s opinion, it is not required when there is contrary probative evidence in the records.[1] Instead, the OALJ is entitled to weigh conflicting medical opinions and determine which view is more persuasive.[2] Thus, if the OALJ determines that an Employer and Carrier’s IME physician’s opinion carries more weight, it should afford deference to the IME report. It is clear from the cases below that the OALJ has been utilizing its discretion when weighing evaluating medical opinions based primarily on subjective evidence.
Joan Abalo v. SOC-SMG, LLC
In his opinion published on August 5, 2024, Judge Rosenow discussed how Claimant’s medical records lack medical, social, and family history and do not discuss any of Claimant’s experiences while working in Iraq. Additionally, he notes that Claimant’s treating providers did not administer any diagnostic testing or psychological testing in reaching their diagnosis. Judge Rosenow concluded that Claimant’s medical records have little probative value, and the opinion of the Carrier’s IME physician, Dr. Groberio, had more weight. As such, Judge Rosenow denied the Claimant benefits.
Joseph Macho v. Sabre International Security
In this decision published on August 6, 2024, Judge Almanza denied Claimant benefits and gave more weight to Employer and Carrier’s IME physician than Claimant’s treating provider for multiple reasons. Notably, he pointed out how Claimant’s provider, Mr. Mwiwa, relied entirely on Claimant’s self-reported symptoms without evaluating the possibility of exaggeration or feigned symptoms and, therefore, found that Mr. Mwiwa’s medical reports had minimal probative weight.
Karinya v. SOC, LLC
In her opinion published on August 6, 2024, Judge Donaldson gave more weight to Employer and Carrier IME physician, Dr. Safaei-Far, than Claimant’s treating providers, denying Claimant benefits. Judge Donaldson gave little probative value to Claimant’s medical records due to the “vagueness of the reports and lack of foundation for his opinions.” Judge Donaldson also noted that Claimant’s treating provider, Mr. Buhese, did not reference any diagnostic criteria at any time.
Irumba Saban v. Continuity Global Services
In an August 7, 2024, trial transcript, Judge Norby denied Claimant benefits, noting there was no indication that Claimant’s treating provider, Dr. Ian, conducted any objective diagnostic testing and rather relied on Claimant’s self-reports of his symptoms and history.
Conclusion
These four opinions published in the span of only two days show the OALJ is trending towards affording more weight to medical opinions based on diagnostic testing rather than self-reporting. In all of these cases, the OALJ has highlighted the importance of medical providers conducting testing to form diagnostic opinions. This is a trend that will likely continue as the OALJ continues to see a rise in psychological claims containing medical records based solely on Claimant’s self-reporting. Relying on self-reporting can lead to false diagnoses and in turn, fraudulent claims. With more than 10,000 Defense Base Act claims pending before the OALJ and only 37 administrative law judges[3], it is important that steps are taken to combat fraud, to reduce the number of claims filed before the OALJ, and to put legitimate claims at the forefront.
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[1] Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), reported at 1998 U.S. App. LEXIS 33883, amended 164 F.3d 480, 32 BRBS 144(CRT) (9th Cir. 1999), cert. denied, 528 U.S. 809, 145 L. Ed. 2d 36, 120 S. Ct. 40 (1999).
[2] Id.
[3] Battling Bureaucracy After Burn Pits: Why Are Civilian Contractors Left Behind?