Thomas LENNON, Petitioner-Cross-Respondent, v. WATERFRONT TRANSPORT, Fireman‘s Fund Insurance Company, Respondents-Cross-Petitioners, and Director, Office of Workers’ Compensation of the United States Department of Labor, Respondent.
No. 93-4157.
United States Court of Appeals, Fifth Circuit.
May 17, 1994.
Rehearing Denied June 21, 1994.
20 F.3d 658
AFFIRMED IN PART, REVERSED IN PART.
Daniel A. Rees, New Orleans, LA, for respondents-cross-petitioners.
Luann Kressley, Carol A. DeDeo, Assoc. Solicitor, U.S. Dept. of Labor, Washington, DC, for Director, Office of Workers’ Compensation.
Lisa L. Larhman, Clerk, BRB, Dept. of Labor, Washington, DC, for other interested parties.
Before WOOD,* SMITH, and DUHÉ, Circuit Judges.
OPINION
HARLINGTON WOOD, Jr., Circuit Judge:
Plaintiff Thomas Lennon, a marine dispatcher for Waterfront Transport, injured his back while lifting a box at work. Len
Soon after the accident Lennon sought medical advice and was diagnosed as having a back strain compounded by pre-existing degenerative disc disease. Although the back strain reached maximum medical cure in October of 1981, Lennon continued to suffer from back pain. In July of 1983, Lennon was diagnosed as having a herniated disc, but only after six other physicians had examined him and found to the contrary. Although Dr. Vogel, the physician who diagnosed Lennon‘s herniated disc, attributed that injury to the July 1, 1980 accident, he did so without having seen or known about most of the records from Lennon‘s prior trips to other physicians.
Lennon sought compensation for his back injury under the Longshore and Harbor Workers’ Compensation Act (LHWCA),
After trial before an administrative law judge, on December 16, 1985, the ALJ determined jurisdiction was proper under the LHWCA and found in favor of Lennon on the causation issue based in large part on Dr. Vogel‘s testimony. Fireman‘s Fund paid Lennon $42,922.71 in past due benefits, paid for Lennon‘s medical expenses, and began weekly payments of $205.49.
Waterfront and Fireman‘s Fund appealed to the Benefits Review Board,1 and on April 21, 1987, the BRB reversed the ALJ and remanded the case to the ALJ to reconsider the issues of causation, disability, and attorneys’ fees. On remand the ALJ decided that insufficient evidence existed to prove causation and therefore he denied Lennon‘s claim. The ALJ also denied a motion by Waterfront Transport requesting that Lennon refund all compensation paid under the 1985 order. On January 23, 1993, the BRB affirmed the ALJ on both accounts, and both Lennon and Waterfront Transport petition for review.
I. ANALYSIS
A. Jurisdiction
An injured worker must satisfy occupational and geographical status requirements to qualify for coverage under the LHWCA.
Although the ALJ found that the majority of Lennon‘s dispatcher duties were clerical, the ALJ also found that Lennon‘s duties required him to sort, pack, and handle cargo destined to be loaded upon vessels. Handling cargo, the Supreme Court has held, is “as much an integral part of the process of loading and unloading a ship as a person who participates in the entire process.” P.C. Pfeiffer Co. Inc. v. Ford, 444 U.S. 69, 75, 100 S.Ct. 328, 333, 62 L.Ed.2d 225 (1979). The
This court may not reweigh the evidence, but rather must confine its inquiry to whether substantial evidence supported the findings of the ALJ. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). The evidence of Lennon‘s cargo sorting, packing, and handling activities is substantial and supports the ALJ‘s finding that the claimant was engaged in longshoring operations. We therefore conclude that jurisdiction under the LHWCA is proper.
B. Reimbursement
This circuit has held that federal district courts have no subject matter jurisdiction over original actions to recoup overpaid benefits under the LHWCA. Ceres Gulf v. Cooper, 957 F.2d 1199, 1205-07 (5th Cir. 1992); see also Stevedoring Services of America, Inc. v. Eggert, 953 F.2d 552, 555-57 (9th Cir. 1992). Although the instant case did not originate in federal district court, Ceres Gulf and the Ninth Circuit decision in Stevedoring are instructive regarding whether the LHWCA permits actions for reimbursement of overpaid benefits. Both Ceres Gulf and Stevedoring based their jurisdictional analysis on the holding that all three statutory provisions for recoupment in the LHWCA2 permit reimbursement as an offset against future benefits only. Ceres Gulf, 957 F.2d at 1205-07; Stevedoring, 953 F.2d at 555-57.
Ceres Gulf and Stevedoring reasoned that because Congress permitted recoupment only as an offset against future benefits in three separate statutory provisions of the LHWCA, it would be improper to imply a federal remedy for reimbursement. Ceres Gulf, 957 F.2d at 1205-07; Stevedoring, 953 F.2d at 555-57. We agree with the reasoning of Ceres Gulf and Stevedoring. Although the plain language of the LHWCA alone would support our holding, the legislative history of the LHWCA further bolsters our decision not to imply a federal remedy for reimbursement.
The legislative history of what is now Section 914(j) of the LHWCA confirms that Congress intended to preclude methods of recoupment other than offsets against future benefits. During hearings on the matter, shipbuilders’ representative O.G. Brown argued against allowing offsets against future benefits only, contending that “the compensation would all be paid out, and irrevocably by the time [of a successful appeal].” Compensation for Employees in Certain Maritime Employments: Hearings on S. 3170 Before a Subcomm. of the Senate Comm. on the Judiciary, 69th Cong., 1st Sess. 53 (1926). Nevertheless, the response from the Chairman of the Senate subcommittee and other comments made before a house subcommittee showed that “Congress was concerned about the disabled worker receiving benefits promptly after being found deserving of same.” Rivere v. Offshore Painting Contractors, 872 F.2d 1187, 1190 (5th Cir. 1989). In fact, Congress tightened the criteria for obtaining a stay of payments pending appeal. 1926 Senate Hearings at 9-10 n. 2.
The legislative history of Section 922 demonstrates the same principle. In fact, Congress originally allowed no method of recovering overpayments, Act of Mar. 4, 1927, § 22, 44 Stat. 1437, only later to loosen that rule to allow recovery from unpaid compensation, Act of May 26, 1934, ch. 354, § 5, 48 Stat. 806, 807 (1934). Even in Section 908(j), the least favorable provision for claimants because it governs claimants who have knowingly and willfully engaged in misreporting,
Waterfront and Fireman‘s Fund attempt to dispute the clear language of the LHWCA and legislative history by claiming that if past compensation is unrecoverable directly from claimants, all employers would be entitled to stays of compensation awards pending review by the BRB because the lack of post-deprivation remedy always would result in irreparable injury. See
Waterfront and Fireman‘s Fund contend that the limited recoupment rule is precluded by Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1922), because once the jurisdiction of an Article III court is invoked, the power to enforce its orders cannot be limited in any fashion. If Waterfront and Fireman‘s Fund are correct, then Congress never can specify remedies in legislation — doing so would prevent Article III courts from enforcing its orders. Federal courts may not create remedies that Congress specifically intended not be available.
To the extent that Waterfront and Fireman‘s Fund believe that the LHWCA violates their right to Due Process, that belief is not founded in law. The LHWCA represents a compromise between the interests of injured workers, employers, and insurers. See, e.g., In re Compensation Under Longshore & Harbor Workers’ Compensation Act, 889 F.2d 626, 632 (5th Cir. 1989). Injured employees receive benefits promptly and periodically during their disability, and may take advantage of the benefits free of the worry of possible future reimbursement orders. In return employers and insurers are able to avoid employees taking advantage of superior (albeit less swift and certain) remedies in tort — a substantial benefit given the increasing number of sizable jury awards in personal injury cases. Although in individual cases this trade-off may work to the disadvantage of an employer, that result is part of the overall balance Congress sought to provide. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 282-84, 101 S.Ct. 509, 516-18, 66 L.Ed.2d 446 (1980) (“like most workmen‘s compensation legislation, the LHWCA represents a compromise between the competing interests of disabled laborers and their employers.... if ‘compelling language’ produces incongruities, the federal courts may not avoid them by rewriting or ignoring that language.“). Waterfront and Fireman‘s Fund have advanced no reason to upset this balance.
C. Causation
The BRB correctly held that the ALJ initially erred in two respects. First, the ALJ failed to consider whether Waterfront rebutted with substantial evidence the presumption that Lennon‘s injury was work related. See
The ALJ‘s finding on remand of no causation was supported by substantial evidence. Cardillo v. Liberty Ins. Co., 330 U.S. 469, 477-78, 67 S.Ct. 801, 806-07, 91 L.Ed. 1028 (1947). That evidence consisted of the previously noted testimony of Lennon‘s doctors regarding pre-existing medical conditions, including an automobile accident and a fall that broke Lennon‘s tailbone (which, as Dr. Vogel admitted, could have caused the ruptured disc). Lennon failed to indicate how that evidence was insubstantial, and he raised no instances of reversible error by the ALJ in weighing the conflicting evidence and making credibility determinations. See Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90 (5th Cir. 1990). The BRB was correct to affirm the ALJ‘s decision on remand.
II. CONCLUSION
Jurisdiction under the LHWCA was proper. Although no causation existed between Lennon‘s 1980 injury and his herniated disc, the remedy to which Waterfront and Fireman‘s Fund are entitled is offsetting Lennon‘s future benefits — and as none are owing, no remedy is available — not reimbursement of benefits already paid. The petitions for review are DENIED, and the decision of the Benefits Review Board is AFFIRMED.