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'
 

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

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
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

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
4

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
5

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 predeprivation 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
 

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

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
 

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

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. 
8

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.