United States Court of Appeals,
Fifth Circuit.
No. 93-5272.
PETROLEUM HELICOPTERS, INC. and National Union Fire Insurance
Company of Pittsburgh, Pa., Plaintiffs-Appellants,
v.
NANCY T. GARRETT, L.P.T., P.C., and Nancy T. Garrett d/b/a East
Texas Physical Therapy Services, Defendants-Appellees.
June 16, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before WOOD,1 SMITH, and DUHÉ, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
This appeal arises from an Administrative Law Judge's order
directing the defendants to reimburse the plaintiffs for payments
they made pursuant to the Longshore and Harbor Worker's
Compensation Act for medical care to one of the plaintiffs' injured
workers. The ALJ determined that the medical care charges were
excessive and ordered the defendants to reimburse the amount of the
excessive charges. After the defendants failed to repay the
amounts in question, the plaintiffs filed suit in the district
court to enforce the ALJ's order. The district court dismissed the
suit for lack of subject matter jurisdiction and this appeal
followed.
I.
While employed by Petroleum Helicopters, Inc. ("PHI"), Jeffrey
1
Circuit Judge of the Seventh Circuit, sitting by
designation.
1
Shives suffered a work-related injury that was covered under the
Longshore and Harbor Worker's Compensation Act ("LHWCA"). On May
3, 1985, PHI and its worker's compensation carrier, National Union
Fire Insurance Co. of Pittsburgh ("National"), entered into a
settlement with Shives. PHI and National ("plaintiffs") agreed to
pay Shives "reasonable costs of necessary past and future medical
care and treatment resulting from the work-related injury."
In 1987, suffering from back pain, Shives began physical
therapy treatments with defendant Nancy T. Garrettt, L.P.T.2
Plaintiffs paid the charges for these treatments. Two years later
they disputed the charges by defendants and ceased making payments.
Shives then filed a claim with the Administrative Law Judge ("ALJ")
for a determination of the parties' liability for the medical
treatment charges. After conducting a hearing on the matter, the
ALJ found that the services defendants provided were unreasonably
lengthy and unreasonably expensive and that the back pain related
from an injury for which PHI was not responsible. The ALJ then
ordered defendants to reimburse plaintiffs for the amount of the
unnecessary payments.
Following Shives' Motion to Reconsider, the ALJ confirmed its
findings and ruling. Neither party appealed that decision to the
Benefits Review Board, which would have been the appropriate course
of action. 20 C.F.R. §§ 702.391, 802.204. Defendants failed to
2
Nancy T. Garrett was an employee of Nancy T. Garrett d/b/a
East Texas Physical Therapy Services. Both the individual and
the organization are defendants in this suit. We refer to them
collectively as "defendants".
2
reimburse the amount of the overcharges. Plaintiffs then brought
suit under the LHWCA in federal district court seeking enforcement
of the ALJ's order and a money judgment for the amount of the
overpayments. The district court concluded that the LHWCA did not
provide a cause of action and dismissed the case for lack of
subject matter jurisdiction.
II.
The LHWCA provides no express cause of action for an employer
to recover overpayments from a medical care provider. Plaintiffs
argue that an implied cause of action exists under 33 U.S.C. §
921(d) which would allow them to seek enforcement of the ALJ order
compelling the reimbursement. That section provides as follows:
If any employer or his officers or agents fails to comply with
a compensation order making an award, that has become final,
any beneficiary of such award or the deputy commissioner
making the order, may apply for the enforcement of the order
to the Federal district court for the judicial district in
which the injury occurred....
33 U.S.C. § 921(d). This statute expressly provides a cause of
action only if the beneficiary of a compensation order is seeking
to enforce that order against the employer or its agents. The
plaintiffs argue that by implication the statute must allow the
employer to seek enforcement of an order compelling the
reimbursement of that same compensation; the only difference
between the two causes of action is that the alignment of the
parties is reversed.
The plaintiffs suggest that by implying a cause of action for
them to recover overpayments from the medical care provider we
would merely be "filling the gap" that Congress left when they
3
drafted the LHWCA. Contrary to the plaintiffs assertions,
realignment of the parties is not the only difference between the
language of section 921(d) and this case. That section speaks of
a beneficiary enforcing a "compensation" order against an employer.
The LHWCA defines compensation as "the money allowance payable to
an employee or to his defendants." Relying on that definition, we
have previously held that "[i]f an employer furnishes medical
services voluntarily, by paying a health care provider for its
services, it does not pay "compensation' within the meaning of the
Act." Lazarus v. Chevron U.S.A., Inc., 958 F.2d 1297, 1301 (5th
Cir.1992). The plaintiffs are seeking reimbursement of payments
they made directly to the medical care provider; therefore, they
are not seeking reimbursement of "compensation."3 Regardless of
the alignment of the parties, the subject matter of the dispute
simply is not covered by section 921(d) and plaintiffs' argument
must fail.
Furthermore, even if we were to assume that this case did
3
Plaintiffs cite Hunt v. Director, Office Workers'
Compensation Programs, 999 F.2d 419 (9th Cir.1993), for the
proposition that "compensation" should be interpreted more
broadly. In Hunt, the Ninth Circuit interpreted the term
"persons seeking benefits," found in section 928(a) relating to
recovery of attorney's fees, as including medical care providers.
In doing this they stated that "benefits" and "compensation" were
interchangeable terms. Id. at 423. Plaintiffs argue that
"compensation" then must include payments to medical care
providers. The Ninth Circuit's conclusion, however, was based on
the fact that the interpretation would advance the broad policy
interest of protecting the employee's right to benefits. Id. at
424. Such a policy concern is not implicated in the current
case. Nor does the current case involve the interpretation of 33
U.S.C. § 928(a). Therefore we leave the issues raised in Hunt
for another day.
4
involve "compensation," plaintiffs' "fill in the gap" argument
would nonetheless fail. Section 921(d) is very specific; it
grants jurisdiction only in actions against the employer. "There
is a basic difference between filling a gap left by Congress'
silence and rewriting rules that Congress has affirmatively and
specifically enacted." Mobil Oil Corp. v. Higginbotham, 436 U.S.
618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (1978). Allowing a
cause of action when the alignment of the parties is reversed is
not filling a gap and effectuating Congress' intent, but
contradicting the plain language of the statute. Plaintiffs have
identified nothing that would suggest Congress intended anything
but what they included in the statute. Had Congress intended that
one could bring a cause of action against a medical care provider
under section 921(d), we are at a loss to understand why they
specifically limited jurisdiction to cases brought against
employers or their agents.
In addition to the clear language of section 921(d), several
other provisions of the LHWCA as well as the legislative history of
the Act demonstrate Congress' intent that the employer should not
have a separate cause of action to seek reimbursement of past
payments. The LHWCA specifically addresses when and how the
employers may obtain reimbursement for payments already made. In
three separate sections the statute provides that the employer may
recover past payments from an employee, but only by offsetting
those payments against future compensation installments still due.
See 33 U.S.C. §§ 908(j), 914(j), 922. The employer does not have
5
a separate cause of action to enforce a reimbursement order against
an employee when no future compensation payments are due. Ceres
Gulf v. Cooper, 957 F.2d 1199 (5th Cir.1992).4 This is true even
if the employee has engaged in fraud to obtain medical benefits.
The LHWCA provides for the penalty in the event a claimant engages
in fraud, 33 U.S.C. § 931(a)(1), but the "penalty does not include
recovery of the payments obtained as a result of [the fraud]."
Ceres Gulf, 957 F.2d at 1205. Consider for example an employee who
fails to report earnings, in violation of section 908(j). Although
according to the statute the employee's failure to report earnings
results in a forfeiture of the right to compensation, Congress has
stated that in such an instance "[t]he committee does not
contemplate that the employer could bring a cause of action to
recover compensation paid in the past." H.R.Rep. No. 570, 98th
Cong., 2d Sess. pt. I, at 18 (1983) reprinted in 1984 U.S.C.C.A.N.
2734, 2751. The only means of recovering the payments would be
through the offset methods provided in the statute. 33 U.S.C. §
908(j).
Although the holding in Ceres Gulf and the statutory
provisions above relate only to an employer recovering past
payments from an employee, similar provisions in the Act and
similar comments in the legislative history compel our conclusion
4
Defendants have argued that the holding in Ceres Gulf
forecloses an employer's cause of action for reimbursement from
any party. That case, however, addressed only the issue of an
employer seeking reimbursement from an employee, not from a
medical care provider, and its holding was limited that
situation. 957 F.2d at 1204-09.
6
that the employer is foreclosed from bringing an action for
reimbursement against medical care providers as well. For example,
the Act provides that medical care providers who knowingly make
false statements, or otherwise employ a fraud in order to receive
payment for medical services, or knowingly submit bills for
excessive charges etc., may be disqualified from participating in
the system. See 33 U.S.C. § 907(c). In such a case, those medical
care providers are not entitled to receive fees for their services
under the LHWCA. 33 U.S.C. § 907(c)(1)(C). Congress specifically
noted, however, that "the effect of any such disqualification to
receive fees for medical services, ... [shall] be prospective
only." H.R.Rep. No. 570, 98th Cong., 2d Sess. pt. I, at 14 (1983)
reprinted in, 1984 U.S.C.C.A.N. 2734, 2747. Therefore, this
disqualification would not affect the payments already received.
Even if defendants had been disqualified to participate in the
system, and nothing in the record even hints at such an action,
Congress has made clear that the payments already received would
not be affected.
These provisions demonstrate that the employer should have no
claim for reimbursement against the health care provider even after
a determination that fraud was involved. In this case there has
been no finding that defendants defrauded the system and they have
not been disqualified from participating in the system. If
Congress would preclude a claim for reimbursement in the truly
egregious cases mentioned above, we must conclude that they would
7
similarly reject a claim for reimbursement in this case.5
Finally the plaintiffs argue that we should imply a cause of
action because having all claims relating to the LHWCA administered
and reviewed under one federal system would be efficient and would
best serve the intent of Congress in passing the Act. As we
discussed above, Congress intended that an employer not be able to
bring a cause of action to recover overpayments from a medical care
provider. Therefore implying a cause of action would be not only
an impermissible and unjustified expansion of federal court
jurisdiction, but would also frustrate, rather than advance, the
efficient use of judicial resources.6
III.
The district court lacked subject matter jurisdiction to hear
this matter and its order dismissing the case is
AFFIRMED.
5
Plaintiffs also argue that denying them a cause of action
in this case would result in unjust enrichment for the defendant
medical care providers as they have "bilked" the system of money
to which they are not entitled. Unjust enrichment, however, is
not a principal or even secondary concern in the statutory
framework of the Act. On the contrary, despite the unjust
enrichment that would necessarily result when a medical care
provider obtains payments by way of fraud, Congress nonetheless
has precluded the employer from recovering those payments. We
therefore reject plaintiffs' unjust enrichment argument.
6
Defendants also argue that they were not proper parties to
the ALJ proceedings and therefore, the ALJ's order cannot be
enforced against them. Because we affirm the dismissal of this
suit based on the lack of subject matter jurisdiction, we do not
reach this issue.
8