Fifth Circuit Hears LHWCA Loud and Clear: Audiologists Now Considered Physicians For Purposes of the Statute

Huntington Ingalls, Inc. v. Dir., OWCP, No. 21-60752, 2023 WL 3833853; 2023 U.S. App. LEXIS 14025 (5th Cir. June 6, 2023).

Authored by: Emma Aucoin

           The main issue before the Fifth Circuit Court of Appeals in Huntington Ingalls, Inc. v. Dir., OWCP is whether an audiologist is included within the term of “physician” as used in the Longshore and Harbor Workers’ Compensation Act (LHWCA). 33 U.S.C. § 907(b).

            Clarence Jones was employed by Huntington Ingalls, Inc. as a sheet-metal mechanic for six years. Jones allegedly sustained hearing loss after leaving the company and met with an audiologist who was able to provide a hearing test (audiogram). The result of the test indicated Jones’ hearing-impairment level to be around seventeen percent.

            When Huntington Ingalls recognized Jones’ claim brought under the LHWCA on the grounds of his hearing loss, the company scheduled another audiologist examination. The second audiogram, administered by an audiologist of the company’s own preference, resulted in a finding of zero percent hearing loss.

            Jones then filed a formal claim for compensation under the LHWCA due to his former company’s refusal to accept liability for medical expenses that reflect the audiogram administered by Jones’ preferred audiologist. The Department of Labor’s Benefits Review Board eventually held that Jones did have a statutory right that allowed him to choose his own audiologist to which Huntington Ingalls petitioned the Fifth Circuit for review. Thus, the question of whether an audiologist is a physician under the meaning of the LHWCA was presented on appeal.

            Under the LHWCA, the employer of an injured employee such as Clarence Jones must furnish the employee with necessary medical treatment. The most relevant section of the LHWCA (33 U.S.C. § 907[b]) allows a claimant to “choose an attending physician […] to provide medical care under this chapter as hereinafter provided.”[1] Due to the lack of a statutory definition for “physician,” the court turned to a dictionary definition of the term: “a person skilled in the art of healing: one duly authorized to treat disease.”[2] After recognizing this definition’s ambiguity, the Fifth Circuit panel turned to the next “item in our interpretive toolkit,”[3] the LHWCA itself.

           Using the actual text of the Act, the court highlighted an amendment to the LHWCA which equates audiologists with physicians who have obtained an otolaryngology certification. The amended portion reads: “an audiogram shall be presumptive evidence of the amount of hearing loss sustained as of the dater thereof, only if (i) such an audiogram was administered by a licensed or certified audiologist or a physician who is certified in otolaryngology.”[4] The court used this excerpt to highlight the fact that it would be structurally unsound to exclude audiologists from the term physician because of the parallel drawn between audiologists and otolaryngologists.

           The Fifth Circuit finally analyzed the intended purpose of the statute after finding the textual approach indeterminate. One of the main purposes of the LHWCA is to provide “prompt payment to injured workers and of relieving claimants and their employers of the undue expense and administrative burden of litigating compensation claims.”[5] A motivating factor in fulfilling the statute’s purpose includes the right of an injured employee to choose their own physician, largely due to the fact that employers may be prone to select a physician that would result in a minimized financial burden rather than a physician who would provide a higher quality of care.

           The panel also turned to the applicable regulations. Though an audiologist is not listed in the regulation (20 C.F.R. § 702.404), the maxim “ejusdem generis” allows similar professions to be included within the definition of physician. Through applying this maxim, the court reasoned that audiologists are analogous in many ways to optometrists which are included in the regulatory definition.[6]

           Following this interpretation, the Fifth Circuit held that an audiologist is a physician within the meaning of the LHWCA and Clarence Jones therefore had the right to choose his own audiologist. The court additionally applied the Chevron deference and its progeny Skidmore to this case because the regulation met the definition of physician even if the definition is ambiguous.

[1] Huntington Ingalls, 2023 WL 3833853 at *2.

[2] Id. at *3.

[3] Id. at *4.

[4] Id.

[5] Id.

[6] Huntington Ingalls, 2023 WL 3833853 at *7-8.