IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-3666
_____________________
ROBERT BUNOL,
Plaintiff-Appellee,
and
THE DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR,
Appellee,
versus
GEORGE ENGINE COMPANY, ET AL.
Defendants,
and
LOUISIANA INSURANCE GUARANTY ASSOC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
(July 7, 1993)
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
JOHNSON, Circuit Judge:
In 1979, Robert Bunol suffered two work-related injuries
while working for George Engine Company. In 1987, Bunol filed a
claim for benefits pursuant to the Longshore and Harbor Workers'
Compensation Act (the Longshore Act), 33 U.S.C. §§ 901-950.1
Following an administrative hearing, the Louisiana Insurance
Guaranty Association (LIGA)2 was ordered to pay benefits to
Bunol. LIGA refused to pay, and Bunol eventually sought
enforcement in district court. The district court entered
judgment in favor of Bunol, and LIGA now appeals. Finding no
reversible error, this Court affirms.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of a claim for benefits under the
Longshore Act brought by Robert Bunol. Following a hearing
before an Administrative Law Judge (ALJ), LIGA was ordered to pay
benefits to Bunol.3 LIGA failed to pay the compensation award
1
Under the Longshore Act, a claimant must file a claim
within one year of the time claimant becomes aware or should have
become aware of the relationship between the injury and
employment. 33 U.S.C. § 913(a). However, where the employer has
knowledge of the injury, the employer is required to file a
report with the Department of Labor, and the statute of
limitations does not begin to run until the report is filed. 33
U.S.C. § 930(a), (f). In this case, Bunol filed his claim in
1987--approximately eight years after his injuries. But the
Department of Labor did not receive an employer's report on
Bunol's injuries until 1989. Therefore, the limitations period
was tolled, and Bunol's claim was timely.
2
George Engine Company went out of business in 1988. LIGA
is a non-profit, unincorporated statutory entity created by
Louisiana law to pay the claims of insolvent Louisiana insurers.
3
The Longshore Act authorizes the Benefits Review Board
(the Board) to hear and determine appeals from ALJ decisions.
The Act, however, specifically provides that "[t]he payment of
the amounts required by an award shall not be stayed pending
final decision in any such proceeding unless ordered by the
Board. No stay shall be issued unless irreparable injury would
otherwise ensue to the employer or carrier." 33 U.S.C. §
921(b)(3).
2
within the time period provided by the Longshore Act. See 33
U.S.C. § 918(a). Upon application of Bunol, the Deputy
Commissioner of the U.S. Department of Labor issued a
supplemental compensation order declaring the amount of the
benefits to be in default. LIGA also refused to comply with the
supplemental order, so Bunol sought enforcement of the order in
district court pursuant to section 918(a) of the Longshore Act.
Following a full briefing by the parties, the district court
issued an order granting Bunol's motion for entry of default.
LIGA timely appealed to this Court, and the district court
granted LIGA's request for a permission to post a supersedeas
bond and to stay execution of the judgment pending appeal.
II. DISCUSSION
Both of the issues raised by LIGA present questions of law.
This Court therefore conducts a de novo review of the
determinations of the district court. Palmco Corp. v. American
Airlines, Inc., 983 F.2d 681, 684 (5th Cir. 1993).
First, LIGA argues that the district court should not have
granted Bunol's motion for entry of default because the delays
involved in obtaining administrative review of the ALJ's decision
Following the ALJ's decision, LIGA appealed the award to the
Board and also filed a motion for reconsideration with the ALJ.
That motion was denied by the ALJ, and LIGA also appealed that
decision to the Board. LIGA then filed a petition for
modification of the ALJ's original decision. The Board
subsequently dismissed both of LIGA's appeals as premature since
there was a pending motion for reconsideration. The modification
motion is still pending before the ALJ.
3
are so extensive that they amount to a denial of due process.
LIGA claims that the time typically required to obtain a review
of an ALJ order by the Board is three years. Unfortunately for
LIGA, this argument was considered and rejected by this Court in
Abbott v. Louisiana Insurance Guaranty Ass'n (In re Compensation
under Longshore & Harbor Workers' Compensation Act), 889 F.2d 626
(5th Cir. 1989), another case where LIGA was the wrong side of a
district court's enforcement order.
LIGA argues that the Abbott Court's rejection of its due
process claim was based not upon the adequacy of the Longshore
Act's review proceedings but on LIGA's failure to adequately
explain why the delay was unwarranted or unreasonable. LIGA
attempts to cure this perceived deficiency in the instant case by
pointing to the Fifth Circuit rule that if a compensation order
is reversed neither an employer nor a carrier has a cause of
action for reimbursement from the claimant for monies paid but
not owed. Instead, there is only a claim for a credit against
future compensation. See Ceres Gulf v. Cooper, 957 F.2d 1199,
1209 (5th Cir. 1992). If the compensation order in this case was
eventually overturned in its entirety, LIGA would be unable to
recover the compensation erroneously paid to the claimant. In
that event, LIGA argues, the Longshore Act's post-deprivation
review would not be meaningful and a due process violation would
result.
This attempt to distinguish Abbott is based upon a
misunderstanding of this Court's holding. In Abbott, LIGA had
4
been precluded from participating in the pre-deprivation ALJ
hearing. Therefore, the precise issue before the Abbott Court
was whether the other procedural protections in the Longshore Act
were sufficient to protect LIGA's due process rights. The only
reason the Court even discussed post-deprivation review is
because LIGA had no opportunity to participate in the pre-
deprivation hearing. In the instant case, however, LIGA fully
participated in the ALJ hearing, and thus the post-deprivation
review process in not at issue.
"The fundamental requirement of due process is the
opportunity to be heard 'at a meaningful time and in a meaningful
manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976). In
Abbott, this Court noted that due process generally means that a
party must have the opportunity for a hearing before the
government interferes with the party's protected interest. Id.
at 631. The property interest at issue in this case is LIGA's
interest in the money it has been ordered to pay to Bunol. LIGA
had a full pre-deprivation hearing by the ALJ before the
compensation order was entered. Thus, LIGA had an opportunity to
be heard "at a meaningful time and in a meaningful manner" before
there was any government interference with its property rights.
LIGA's rights to due process have been adequately protected.
Next, LIGA argues that the ALJ's compensation order was not
a final decision as contemplated by the Longshore Act and its
implementing regulations. If an employer or carrier does not
comply with a compensation order within ten days after it becomes
5
due, the claimant can apply to the deputy commissioner for a
supplementary order declaring a default. 33 U.S.C. § 918(a). A
compensation order cannot become "due" if it is not "a final
decision and order" of the ALJ. 20 C.F.R. § 702.348. To
constitute a final decision, an order must "at a minimum specify
the amount of compensation due or provide a means of calculating
the correct amount without resort to extra-record facts which are
potentially subject to genuine dispute between the parties."
Severin v. Exxon Corp., 910 F.2d 286, 289 (5th Cir. 1990).
In this case, the ALJ's order appears to award both
temporary total disability and permanent partial disability
during the same time period.4 As LIGA correctly points out, a
party cannot receive temporary total benefits and permanent
partial benefits at the same time. See Korineck v. General
Dynamics Corp., 835 F.2d 42, 43-44 (2d Cir. 1987). Therefore,
LIGA argues that, according to the Severin definition, the
4
The order states:
1. LIGA shall pay to Claimant compensation for temporary
total disability for the period of July 31, 1979
through December 18, 1980, based upon an average weekly
wage of $460.37, yielding a compensation rate of
$306.91;
2. LIGA shall pay to Claimant compensation for a permanent
partial disability for the period after July 31, 1979
and continuing, based upon an average weekly wage of
$460.37 and offset by a wage earning capacity of
$240.38, yielding a compensation rate of $146.66
. . . .
6
compensation order in this case is not "final" and cannot be
enforced by the district court.5
However, even though the order portion of the ALJ's decision
provides for overlapping periods of temporary total and permanent
partial compensation, the rest of the decision makes it clear
that the overlap is simply a clerical error. The "Nature and
Extent" section of the ALJ decision specifically finds that the
claimant suffered a temporary total disability from July 31, 1979
to December 18, 1980, and a permanent partial disability after
December 18, 1980. This clerical error was corrected in the
supplemental order issued by the deputy director. As the
district court noted, to preclude correction of errors in the
calculation of benefits would serve no purpose.
One final point requires clarification. For direct appeals
from ALJ decisions, the Longshore Act expressly provides: "The
payment of the amounts required by an award shall not be stayed
pending final decision in any such proceeding unless ordered by
the Board. No stay shall be issued unless irreparable injury
would otherwise ensue to the employer or carrier." 33 U.S.C. §
921(b)(3). Similar language governs appeals to this Court from
decisions of the Board. 33 U.S.C. § 921(c). However, where the
district court issues an enforcement order, the statute is silent
as to whether a stay may be granted pending appeal of that order
to this Court.
5
For the same reason, LIGA argues that the order was not
"in accordance with law" as required by 33 U.S.C. § 918(a).
7
In this case, such a stay was granted upon LIGA's posting of
a supersedeas bond. The U.S. Department of Labor subsequently
filed a motion to vacate, arguing that a stay of the enforcement
order would be directly contrary to the Longshore Act's purpose
of providing "a quick and inexpensive mechanism for the prompt
enforcement of unpaid compensation awards." Tidelands Marine
Serv. v. Patterson, 719 F.2d 126, 129 (5th Cir. 1983). That
motion to vacate, however, was withdrawn at oral argument by the
Department of Labor. Accordingly, this Court only addresses the
issues raised by LIGA, and we do not reach the question of
whether it was proper for the district court to grant the stay of
execution pending this appeal.
III. CONCLUSION
Neither of the issues advanced by LIGA has merit. The
judgment of the district court is affirmed.
8