In this quarter the 9^th Circuit issued a published decision, Berry v. Air Force Central Welfare Fund, interpreting §28(a), and the Board issued a published decision, Kkunsa v. Constellis Group, discussing when it is appropriate to give special weight to an attending physician's opinion.

In Berry, the court held no attorney fees are due per §28(a) unless there is a "judicially sanctioned change in the legal relationship of the parties." Without an order that requires some actual relief materially altering the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff, the claimant is not a prevailing party who successfully prosecuted the claim. This decision provides an opportunity for employers to pay all compensation and interest before the district director or ALJ issues a compensation order and thereby attempt to avoid paying attorney fees and costs. The claimant, however, may still be entitled to a compensation order, as voluntary payment, especially if paid as an ongoing award, cannot be enforced with an order of default, and it permits the employer to terminate or reduce payments without petitioning for modification.

In Kkunsa, the Board, perhaps in response to multiple appeals arguing the ALJ failed to defer to the attending physician's opinions, held a treating physician's medical opinion may be given special and deferential weight when there exists no substantial evidence in the record to controvert the treating physician's opinion or when there are multiple reasonable treatment options and the claimant elects to proceed according to his treating physician's advice regarding that treatment. When there are conflicting medical opinions regarding disability or causation the ALJ is not required to give special weight to a treating physician's opinion.

In an unpublished decision, McQuigg v. United States Marine Corps, the Board held employer provided evidence of suitable and available employment when the ALJ concluded one of nine jobs as a telephone solicitor/telemarketer, and one of twelve jobs as a light duty nurse was suitable and available. Claimant argued there must be evidence other jobs in each category were realistically available before the ALJ could conclude claimant could obtain employment. The Board disagreed, That two suitable jobs employer identified have different job titles and are in different job categories does not somehow render that evidence insufficient to meet employer's burden. Claimant appealed this decision to the 9^th Circuit.