ALJs May Determine the Identity of a Treating Physician When the OWCP District Director Authorizes a Change: Eleventh Circuit Clarifies Physician-Choice and Reimbursement Rules Under the LHWCA

Introduction

In Sun Terminals, Inc. v. Maximo Polo, the Eleventh Circuit denied a petition for review and affirmed the Benefits Review Board’s decision upholding an Administrative Law Judge’s (ALJ) award of disability compensation and medical benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901–950. The case centers on a heavy-machinery operator, Maximo Polo, who suffered a back injury while operating a “Top Pick” for Sun Terminals. After conservative treatment failed and the employer’s carrier refused to authorize treatment with a spine specialist, Polo sought to treat with another surgeon, Dr. Hyde, following an informal conference before the Office of Workers’ Compensation Programs (OWCP) District Director.

The petition raised three principal issues: (1) whether the ALJ exceeded her authority by effectively “granting” a change of treating physician; (2) whether the ALJ erred in awarding reimbursement for past medical expenses incurred with Dr. Hyde; and (3) whether the ALJ wrongly awarded temporary partial disability by failing to defer to the employer’s preferred physician regarding maximum medical improvement (MMI). The Eleventh Circuit clarified the boundary between the OWCP District Director’s authority to authorize a change in physician and the ALJ’s authority to find, as a factual matter, who the claimant’s attending physician is. It also reinforced employer liability for reasonable and necessary medical care after an authorized change and affirmed the ALJ’s disability findings under the substantial evidence standard.

Summary of the Opinion

• The court reaffirmed that under the LHWCA and its regulations, only the employer/carrier or the OWCP District Director may authorize a change of treating physician. An ALJ cannot “grant” a change; however, the ALJ may resolve factual disputes and determine who the claimant’s attending physician is based on the administrative record. Citing 33 U.S.C. § 907(b)–(c) and 20 C.F.R. § 702.406(a), and relying on Avondale Shipyards and Del Monte, the court held that the ALJ permissibly found that the District Director authorized Polo’s change to Dr. Hyde.
• The court affirmed Sun Terminals’ liability for past medical expenses incurred with Dr. Hyde because the employer declined to cover the specialist treatment, the District Director authorized the change, and the ALJ found the treatment reasonable and necessary. The court declined to consider employer arguments about the 10-day notice requirement and insurer-party status because they were not raised below.
• The temporary partial disability award stood. The ALJ reasonably credited Dr. Hyde’s opinion that Polo had not reached MMI and remained partially disabled after transitioning to a lighter-duty “yard checker” position. The court deferred to the ALJ’s credibility determinations concerning surveillance footage and subjective pain reports.
• Standard of review: legal questions de novo; factual findings upheld if supported by substantial evidence. Because the Board applied the same deferential standard to the ALJ, the Eleventh Circuit reviewed the Board’s decision de novo and affirmed.

Analysis

Precedents Cited and Their Role

• Richardson v. Perales, 402 U.S. 389, 401 (1971): Defines substantial evidence as such relevant evidence as a reasonable mind might accept as adequate. The court used this benchmark to uphold the ALJ’s factual finding that the District Director authorized the change to Dr. Hyde and that the medical care and disability assessments were supported by the record.
• Lollar v. Alabama By-Products Corp., 893 F.2d 1258, 1261 (11th Cir. 1990): Confirms that ALJ fact findings are binding if supported by substantial evidence, and that the Eleventh Circuit reviews the Board’s decision de novo because both are bound by the same standard.
• Traywick v. Juhola, 922 F.2d 786, 787 (11th Cir. 1991): Establishes de novo review for legal questions, framing the court’s approach to the jurisdictional and authority issues around physician changes.
• Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119–20 (5th Cir. 1980) (binding in the Eleventh Circuit via Bonner): Recognizes ALJ authority to resolve factual disputes pertinent to medical care issues within the LHWCA context—supporting the ALJ’s role in determining who is the attending physician once the District Director has acted.
• Del Monte Fresh Produce v. Director, OWCP, 563 F.3d 1216, 1219 (11th Cir. 2009): Emphasizes deference to the ALJ’s credibility findings and resolution of conflicts in the evidence, which the court invoked regarding the surveillance video and competing medical opinions.
• Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163, 165 (5th Cir. 1993) and Atlantic & Gulf Stevedores, Inc. v. Neuman, 440 F.2d 908, 911 (5th Cir. 1971): Articulate employer obligations to furnish reasonable and necessary medical care and to reimburse for such treatment when statutory conditions are met.
• Roger’s Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 693 n.5 (5th Cir. 1986), Slattery Associates, Inc. v. Lloyd, 725 F.2d 780 (D.C. Cir. 1984), and Shahady v. Atlas Tile & Marble Co., 682 F.2d 968 (D.C. Cir. 1982): Support reimbursement when an employer refuses requested care and the claimant subsequently procures necessary treatment; used to confirm the reimbursement pathway once Sun Terminals declined to authorize Dr. Hyde.
• Kirkland v. Ingalls Shipbuilding, Inc., 125 F.3d 852, at *1 (5th Cir. 1997) (per curiam): Contrasts scenarios where reimbursement is denied if the claimant neither seeks nor obtains authorization to change physicians, underscoring the importance of the District Director’s authorization here.
• Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 279–80 (1994): Confirms that the claimant bears the burden of proof on entitlements (e.g., reasonableness/necessity of treatment), which the court found was satisfied by the record supporting Dr. Hyde’s recommendations.
• Atlantic Marine, Inc. v. Bruce, 661 F.2d 898, 900 (5th Cir. 1981): Reinforces that credibility determinations are for the ALJ; cited to uphold the ALJ’s consideration of surveillance footage in light of testimonial and medical evidence.
• Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980): Not an LHWCA case, but referenced for the general principle that treating physicians’ opinions warrant considerable weight; used to explain why the ALJ permissibly credited Dr. Hyde’s opinion.
• Flowers v. Commissioner, SSA, 97 F.4th 1300, 1305 (11th Cir. 2024) and Ingalls Shipbuilding, Inc. v. Director, OWCA, 976 F.2d 934, 938 (5th Cir. 1992): Applied to decline consideration of arguments not preserved below (10-day notice and insurer-party objections).
• Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc): Establishes that pre-October 1, 1981, Fifth Circuit decisions are binding in the Eleventh Circuit, grounding reliance on several Fifth Circuit LHWCA precedents.

Legal Reasoning

The court’s analysis proceeds from the statutory and regulatory framework governing medical care under the LHWCA. Section 907(b) grants a claimant a first free choice of an attending physician, but subsequent changes require prior written consent from the employer or carrier, or from the OWCP District Director upon a showing of good cause. See 33 U.S.C. § 907(b)–(c); 20 C.F.R. § 702.406(a). Against this backdrop, the court drew a sharp line:

• ALJs do not possess authority to grant changes of physician. That authority resides with the employer/carrier or the District Director.
• ALJs do, however, have authority to make factual findings regarding who the claimant’s attending physician is, based on whether a valid authorization for change occurred earlier in the administrative process.

Applying those principles, the court upheld the ALJ’s determination that the District Director authorized Polo’s change from Dr. Pasarin to Dr. Hyde. The record contained the informal conference documentation showing Polo’s request, the absence of contrary evidence from Sun Terminals, and the District Director’s written recommendation that Sun Terminals authorize Polo’s choice of physician for treatment and surgery with Dr. Hyde. The panel concluded that this written recommendation—considered with the administrative context—“reasonably suggests” affirmative consent by the District Director, and that substantial evidence supported the ALJ’s characterization of the action as authorizing a change for good cause.

On past medical expenses, the court looked to § 907(d)(1). Employer liability to reimburse a claimant (or, here, the spouse’s insurer) turns on (A) refusal or neglect to furnish requested services, coupled with compliance with § 907(b)–(c) and applicable regulations, or (B) employer knowledge of an injury and neglect to provide or authorize needed treatment. The ALJ found, and the court affirmed, that Sun Terminals refused to authorize Dr. Hyde, that the District Director authorized the physician change, and that the surgery-focused care was reasonable and necessary—particularly given the failure of epidural injections, Dr. Pasarin’s own notes identifying surgical evaluation as a possible pathway, and Dr. Pagan’s concession that fusion is an accepted treatment avenue. Thus, reimbursement was proper. The court declined to reach Sun Terminals’ arguments about 10-day notice of the first treatment under § 907(d)(2) and the insurer’s party status under § 907(d)(3) because those issues were raised for the first time on appeal.

On temporary partial disability, the court affirmed the ALJ’s reliance on Dr. Hyde’s “well-documented, well-reasoned, and well-supported” opinion that Polo had not reached MMI and remained partially disabled when working as a yard checker. The ALJ credited testimony that Polo could not lift more than 25 pounds or work more than 40 hours per week and found the surveillance video did not materially undermine Polo’s credibility or Dr. Hyde’s conclusions. Because credibility determinations and weighing of conflicting medical evidence are the ALJ’s prerogative, the court found substantial evidence supported the award.

Impact

• Physician-choice clarity under the LHWCA: The opinion squarely confirms that while ALJs cannot grant a change of treating physician, they can and will determine who is the attending physician when the District Director has acted. Written OWCP recommendations emerging from informal conferences can function as the operative authorization when they reflect an affirmative consent to the change and are supported by the record.
• Litigation practice before OWCP and ALJs: Employers and carriers should attend informal conferences and build a record if they oppose a physician change; silence or nonattendance can lead the District Director to find good cause uncontested. Claimants should document failures of conservative care and articulate reasons for seeking specialty care to support “good cause.”
• Reimbursement exposure: Employers who refuse to authorize an OWCP-approved physician change risk full reimbursement liability for reasonable and necessary treatment subsequently obtained. Arguments based on procedural defenses (e.g., 10-day notice, insurer-party status) must be preserved at the administrative level or risk forfeiture.
• Evidentiary weighting: Treating physician opinions often carry significant weight in LHWCA proceedings, especially when well-documented and consistent with the record. Surveillance evidence must be contextually evaluated and will not automatically defeat subjective pain reports if consistent with medical testimony.
• Persuasive guidance within the Eleventh Circuit: Although unpublished and non-precedential, the decision offers instructive guidance likely to influence ALJ and Board practice within the circuit on physician-choice disputes, authorization mechanics, and the reimbursement framework of § 907(d).

Complex Concepts Simplified

• Attending physician and first free choice: Under § 907(b), injured workers can initially choose their doctor freely. After that, switching doctors requires the prior written consent of the employer/carrier or the OWCP District Director for good cause. “Good cause” typically means the change is reasonable—e.g., conservative measures failed, specialty care is needed, or there is a breakdown in the physician-patient relationship.
• Who decides a change: The District Director (not the ALJ) may authorize a change. However, the ALJ decides disputed facts, including whether such authorization occurred and, therefore, who is the attending physician for purposes of benefits and reimbursement.
• Reasonable and necessary medical care: Employers must furnish all reasonable and necessary treatment for work-related injuries. If they refuse and the claimant secures authorization to change, employers can be ordered to reimburse medical costs incurred with the new physician.
• Maximum medical improvement (MMI): The point at which a claimant’s condition is stable and not expected to improve materially with additional treatment. A claimant not at MMI may continue to receive temporary disability benefits, and post-MMI status often drives whether benefits become permanent.
• Temporary total vs. temporary partial disability: Temporary total disability applies when the claimant cannot work at all for a period. Temporary partial disability applies when the claimant returns to work with restrictions or in a lower-paying capacity. Here, Polo received temporary total disability from injury to his return to light duty, and temporary partial thereafter.
• Substantial evidence: A deferential standard. If a reasonable mind could accept the evidence as adequate to support the ALJ’s conclusion, the finding stands—even if other evidence points the other way. Appellate courts do not reweigh evidence or second-guess credibility choices made by ALJs.
• Preservation of issues: Procedural defenses such as 10-day notification of first treatment (§ 907(d)(2)) and insurer-party participation (§ 907(d)(3)) must be raised before the ALJ; raising them for the first time on appeal will generally forfeit them.

Conclusion

Sun Terminals reinforces important boundaries and practices under the LHWCA. The Eleventh Circuit clarified that while ALJs cannot grant a change of treating physician, they may determine who the attending physician is when the OWCP District Director has authorized a change, and that informal conference recommendations can constitute such authorization when supported by the record. The court underscored employer responsibility to reimburse for reasonable and necessary medical care secured after an authorized change and affirmed the ALJ’s discretion in weighing medical opinions and credibility on disability issues. For practitioners, the decision highlights the need to build a clear administrative record on physician choice and to preserve all procedural defenses early. For claimants and carriers alike, it offers practical guidance on how the LHWCA’s physician-choice, authorization, and reimbursement provisions operate in real cases.