good morning your honor may it please the court learned mary again on behalf of terri grimm there are two issues before the court today the first is whether the ale today had jurisdiction to enforce a grimm's award of medical benefits under section decide whether or tex i was double damages under the medicare secondary payer act case the issue is shared not yours related in other words if the district court if the order was not sufficiently this let's assume here's here's my difficulty so let me sorry put it laid out for you and you can address it as i read the case law it says that district court as opposed to the court of appeals on  from a board decision only has jurisdiction to enforce an order that's final as to amounts or where the amounts can just reasonably be determined by other things in the record and i'm not sure you're the or what or in this case qualifies under that standard if it doesn't then there's no jurisdiction in the enforcement action and then i wonder how it is that we can or would double damages against someone if the order isn't sufficiently final to specify what ought to be paid so can you address that a sorry your honor so in regards to the definition about it needing to detail benefits could never be effective and enforced well you but you could go back to the agency could in supplement orders say this one is required and what's not what concerns me is how do we know how can we tell from the record made in the agency that the specific procedures that were treatment that we're now dealing with are in fact covered by the order normally what we have is an agency order that says provide this provide that give treatment for x y or z this she says for work related injuries how can how can the district court determine that without supplementing the record which is something i don't think it's allowed to do i would say that it is allowed to do that your honor but even if we were to confine it to the record as it stood at excerpts of record page one forty five the administrative law judge noted that the doctors had recommended a  to the court's attention for example that it was four years between when you filed the claim and when he got the decision in order were this court to hold today that the only enforceable award for future medical benefits would be one where the algae somehow is a profit and details exactly this is a remedial statute it's a humanitarian statute and the l g awarded future medical benefits this is yes your honor i guess i have a problem that's more fundamental with your contention on the twenty one d because honor it's actually a very complicated issue that you've hit upon there there are various places in the longshore act there first a compensation and medical benefits and it's clear that there are separate however there are also times when compensation and medical benefits are considered one in the same  this is not an issue that was brief but off the top of my head i believe the hunt vs director case out of the ninth circuit speaks to that issue and there they're the ninth circuit held that  medical benefits were included in compensation and allowed it was under it was a section twenty eight section twenty eight attorneys fees case and the question was whether a health care provider could obtain attorney's fees for  pursuing its bills against the insurance carrier the ninth circuit held that it could even though section twenty eight refers to compensation so there it's medical benefits and it's compensation so why why ok let's say that your money i've not looked at h going to give that explanation but why would we not assume that when congress spoke of compensation orders in one twenty one d that wasn't meaning to encompass or to capture the definition of compensation as it approached provided in the no two because  definition and i know two twelve i think you can see it it definitely is not talking about awards of future medical benefits that's talking about a monetary award that's been reduced to a specific doctor right yes and so as far as an order awarding that back surgery from the a l j the l j could say employer carrier you need to authorize this back surgery but absent sections nine eighteen and sections nine twenty one providing an avenue for enforcement would be absolutely that piece of paper wouldn't be worth any of your your opponent says your opponents response to that is to say that there is a well established mechanism to go back to the i guess it's the l j right but like let's say that you have a very general order like the one we have here that says if you employer on the hook going forward for all medical care that this person needs arising out of this injury and a year later back surgery is called for and the employer is refusing to pay for your your opponent says well no there's an established process to go back to the agency you would get some kind of an order from the o j say no employer you are on the hook for this back surgery and then i guess that if the employer still refused that somehow you could reduce that some kind of a supplemental war that could then be enforced is that that's what i understand your point of the argument to be well that that right there is the problem your honor is this how could you enforce it i don't see how you could because all that the employer would have to do would be to continue to say well ok so this doesn't specify the location or it doesn't specify whether it's going to be anterior or posterity or etc there's always going to be something that someone could later employer this is one of those ones it's covered and the employer deals with it and we never have to deal with the forcing question is the statutes allow us to deal with the ones at the margin where either the employer has a good faith belief that it's not covered or just is order or do you have to go back to the agency in those limited circumstances get a supplemental order that we can force so there are a couple different parts to your honor's question i would say as to the ones where there is no good faith reason for the employer to have disputed something that the district court judge absolutely has permission to enforce but as i perhaps district judge do that without having a hearing and establishing additional facts as i read it i read the case law under nine twenty one it's we got an order i'm ordering you know it's an order that says you shall provide this surgery if you haven't provided this surgery i order you to do it because i mean forcing the order but now it's does he does he actually get to determine whether it's medically necessary whether all those other things so your honor i think yes under section twenty one but here in this case that doesn't even have to be done because it's undisputed that there's an award of medical care for orthopedic conditions nothing has been paid for orthopedic conditions at least as of the district court judgment order to be fair only covers work related stuff that is work related and is medically necessary medically reasonably necessary so words along those lines so how do we know that on this record book the employer hasn't given any reasons and didn't object to the total knee replacement for example didn't even respond to the request for the back surgery there has been no good faith belief even proffered here so it's not even at issue was there a good faith belief that the employer that these weren't work related or something like that they simply weren't paid none of them and i would say that a good model to look is it not and if not what's the reason and if it the carrier fails to reply at all then the carrier has to pay a five hundred dollars five so forces the carrier to at least reply and if the carrier gives a reason but it's just clearly not a good faith reason that to five hundred dollars in the district court will order that the carrier needs to do it now it's had to go back to do for the l j sometimes for truly borderline issues over the course of the twenty one twenty plus years you know if the claimant has something that he's alleging is sackville then yes it'll go back to the ala j but for the teeny tiny things like i need or thought excess he's not waiting for years for response anymore  intention otherwise when an earlier more specific statute conflicts with a later more general statute the earlier statute control so you're used to think the medicare act private cause of action is preempted well i think it's two things there's no claim under the medicare act well that's a separate issue i want to get to that in a second but you just quoted me saying when two statutes conflict the more specific one covers so where is the conflict where's the conflict and the medicare act so under excuse me under section nine zero five eight along tract it limits the liability of longs for employers insurers so the terms of the long tract itself employees the liability to employees right but this is a liability the double damages claim is the employee standing in the shoes of the united states government and saying i'm suing to get back money you should have given to the united states government the government has assigned its claim to me that's correct i would dispute that medicare can intervene in the long for case and recover the money that it ok paid for and so let's take the classic case where an order says this specific service shall be paid for by the employer or by the insurance company the employer need chance company refused to do so the employee is forced to rely on federal benefits medicare to get that done this circumstance although u s district courts would generally have subject matter jurisdiction over lawsuits under the medicare act there's a long line of circuit court supreme court cases that says that when special review procedures exist to address certain types of issues or problems those special review procedures are designed to be exclusive and it effectively ause what subject matter jurisdiction u s district courts would otherwise what's asked what's the special review procedure at issue here it's the long and he goes to have the surgery an insurer the employer says i'm not doing it so he's forced to go to medicare to get them to pay for and then medicare pays for the employer refuses to reimburse medicare and he brings in double damages claim you're saying there's something in the act that prevents him from doing that there's not necessarily anything specific in the act but the fact that there are special reviews procedures that congress created for those not only procedures to determine whether or not a specific medical procedure or benefit or to be afforded to the claimant he's exhausted all those and he's won on all those in my  unable under those circumstances to seek double damages he still would be i know that's your position but why well it would just be that that the case law indicates that when the special view procedures are created to address for example into the lungs for act the liability of maritime employers for the medical treatment of maritime employees who are injured on the navigable waters of the united states that when congress creates review procedures to address those issues create statutory provisions addressing the liability and definitions for all those things that those are intended to be exclusive and not i my difficulty is and unfortunately for departing from this case that i'm positing a circumstance where those exclusive procedures have been used and conclusively establish your client's liability to do something and so we're not conflicting with those procedures we're just saying under the circumstances when he refuses to do so and the feds have to step in why shouldn't there be a remedy i think in that instance where every single long fact issue has been adjudicated before the department of labor you still couldn't bring it in u s district court because the liability that's being sought in district court is in addition to that which provide is provided in the longer act and section nine zero five explicitly says that the liability of an employer to an employee is limited to its terms now i understand that would be medicare this essentially subrogation actual behalf of medicare but the second portion of the damages the double part gets made payable to the claim so in fact although it is a separate instance of subrogation the one hundred percent penalty provision is being made payable to the claimant which is nowhere allowed in the longshore act so let me let me ask go back to the original point here because i would your colleague says make some common sense to me so many gets an award that says you know you've been injured on the job and you may need future medical care and the l j says and therefore i'm ordering the employer to pay future medical care what happens there and no no it's not specific it doesn't say this procedure or that procedure how did how does the employee  enforce that award it depends on what the employer is trying to enforce well he would let me give you an example in full in point he wants a total knee replacement because he thinks his knee has been wrecked on the job and he goes to see a doctor and the doctor says you need what you  e doesn't say totally replace me but he sees a doctor the doctor says you need what he calls the employer and says please pay for an employer says take a hike what does he do so in that instance he would need to go before the u s department of labor and obtain an award from the u s department of labor indicating that the total knee replacement is related to his work activities this reason one medically necessary  the employer must in fact pay them more and how long will that take well practically speaking i think that when an employer like or take signal is under in order to pay for ongoing medical care and treatment they're not going to constantly dispute these had gone wrong but it in that situation then the alternative would be that that same issue whether or not the employer's liable for the new treatment would have to be litigated in u s district court i'm not sure how long that would take to get litigated in district court but either way there has to be some litigation the district court may in fact be quicker but the district court is going to have to make the underlying decisions about substantive facts about under the long tract about whether or not that in the rich tradition so let's quit stay with fletchers hypothetical for second and let's assume you're right you must go back to the agency to get an order when you go back to the agency and in the meantime the employee is medicare paid for the y for this new agency says why this was really faith you should have paid for this he said no private cause of action under medicare in this circumstance correct even though the agency  deterrent if you will to taking that approach number one i believe there would be interest charge in the medical treatment for what that's worth but number two the longer act is a fee shifting statute so if an employer is going to dispute minor things or knee surgeries they're going to have to hire their own attorney to defend the case and then assuming that in all likelihood they are liable for the treatment they're going to have to pay the claimants attorney as well so they're going to be paying two different sides for this litigation which employers don't want to do and that's way too expensive especially in an instance where it probably turns out they'll be liable for it anyway simply from a cost benefit analysis it makes no sense for them to pay all that money in attorney's fees only to end up doing eighteenth compensation district district directors throughout the country have the power to hear and try to informally resolve disputes any disputes on the long tract including medical care and treatment so for texaco requested a formal conference to be held before the district director to address the same exact issues that were raised by cherry grand in his complaint that doesn't because it's a mediation conference it's not just a result will that conference could that conference result going back to the failure to state a claim issue as i was indicating the longer act conflicts with the medicare act section i don't have a long tract limits the liability of the employer so the terms of the act section seven medical care and treatment section eight compensation benefits section nine death benefits nothing in section seven permits a one hundred percent penalty to be assessed against an employer made payable to the claimant for failure to pay for medical care and treatment this is in direct conflict with the medicare act which at least purports to assess a one hundred percent penalty against an employer for its failure to pay for timely medical care and treatment what if we view the medicare actors the government assessing the penalty and saying we do in key tam actions and since you saved us the trouble of so completely we're just going to give our give our penalty to you i think still effectively it's it's a one hundred percent penalty for failure to pay for medical treatment but not to only act i think you told me before all the longshore acts as if your liability to the employee is limited it doesn't if the government merely had a procedure that said medicare could recover two hundred percent that wouldn't conflict with the act would i should have been more clear i think the section on a five a refers to liability on account of such injury or death and you think that's all liability including liability to the federal government so i think that could be expansive to potential lienholder is like the federal government would have defeated subrogation claim it would defeat a subrogation claim but medicare would still have a remedy here they can still intervene in the long for case to recover the monies that they paid out little about what if the claim in this case were brought by the medical providers themselves as opposed to the claimant what's your view on that and that's an area i assume that they could not intervene in the agency proceed so they are the ones who say  perform this new surgery the medicare reimbursements are terrible i'm out of this money i want to collect this double damage because i should have been paid by the private insurer right that was the one decision medical providers can in fact intervene along for cases to recover the money yes i can in fact they can and i believe in hunt this court held that they can have interest on those payments as  well supreme court is also held that when two federal statutes like this conflict in order for the general statute to control over the more specific statute so in order for medicare to control of the longer act they would have to be some sort of express or clear intention manifested by congress in the medicare act showing that medicare meant to be controlling over the long for act but here we simply don't have that long strike is a is a fundamental compromise between employees and employers employees  get prompt in certain recovery employers get lower limits on liability in order to disrupt this basic compromise that is the longshore act there has to be some sort of clear intention manifested by congress that that compromise was meant to be disrupted or otherwise altered and we time to consider the first question that have been posed to me regarding whether the m s p claim is necessarily linked to whether there is a final order under section twenty one to you and your honor it can't be because then get to bring to double damages claim against them so what my problem with your medicare now we're standing is preemption argument which may or may not be right problem with your medicare claim is we don't know yet whether or not the employer is obligated to pay for the services that medicare paid for because we don't have an order from the agency that says they're obligated to and isn't isn't it premature in that sense and no your honor because there won't be an order from the agency on that issue oh well then that then what we've done is is put into the m s is the medicare act claim we've substituted this record for the agency in determining what services should have been provided by the employer and that that does seem to me to get back into two conflicting with the act so going back for a moment your honor to the hunt decision there this court recognized tha to prove that another party needs to be reimbursed for medical bills so here to a claimant would not have any incentive and i don't even think any standing to go before an ale jay to prove what medicare should be paid to get that order to then take that order to district court we cannot talk about it i'm sorry i may be misled you i'm talk i'm talking about the basic order that says employer must pay for this service let's assume you have that order from the agency the specific service and then the employer refuses to pay and used in your client is required to go get medicare reimbursement it seems to me it's that primary initial order that is necessary for the medicare act because of action preemption aside because we are otherwise the in the medicare act action the district court would be determining whether or not that specific service should have been paid for by the employer and that's that ought to be done by the agency shouldn't many of the services that we'd be discussing here really probably aren't even in dispute had the judge said say  which items would you stipulate are part of the longshore act in which you have a good faith belief that they're not and what is that good faith believe probably much of it such as that i had noted the total knee replacements and the shoulder surgeries  there's no good faith reason they shouldn't have been covered there's no reason that the magistrate judge cannot engage in fact finding in order to determine whether there's been compliance with an order that's what section twenty one delouse it allows the magistrate to determine whether there's been compliance here it's not disputed that there that they should be paying medical they weren't paying medical for nine years this wasn't on hold while the appeals happened they should've been paying medical that whole time so as much as you know yes in most cases an employer is not going to refuse to pay for nine years despite an order it happened here and are we really without a remedy other than mr graham going back to the whether there was compliance the district court judge did not determine whether there was compliance here and it's this case is almost like a switch you know we're benefits paid or weren't they they weren't should they have been or should they not have been they should have been it's a black and white issue really because of the extent of nonpayment that happened here and so under section twenty one the district judge should have been allowed to conduct a factual hearing that was necessary your honor as i see that i am two and a half minutes out of time so unless there are any other questions thank you very much ok thank you thank both sides for their arguments graham versus vortex marine construction now submitted  we've got one last case this morning some of your versus davis