*Circuit Judge of the Seventh Circuit, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-4157.

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.

May 17, 1994.

Petitions for Review of an Order of the Benefits Review Board.

Before WOOD, Jr.,* SMITH, and DUHÉ, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge:

Plaintiff Thomas Lennon, a marine dispatcher for Waterfront

Transport, injured his back while lifting a box at work. Lennon's

duties for Waterfront Transport consisted of contacting boats by

marine radio, arranging crew changes, handling the telephone, and

managing a film account. As part of the last of those duties,

Lennon was required to lift 35 to 50 pound boxes of motion-picture

films for use on passenger ships, and it was while lifting one such

box that Lennon sustained his back injury.

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
2

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), 33 U.S.C.

§ 901 et seq. Waterfront and its insurer, Fireman's Fund Insurance

Company (Fireman's Fund), contested both jurisdiction and

causation. Regarding jurisdiction, Waterfront and Fireman's Fund

contended that Lennon was not a Longshoreman for the purposes of

the LHWCA. Regarding causation, Waterfront and Fireman's Fund

contend that Lennon's pre-existing degenerative disc disease caused

his back pain, and that his herniated disc was caused either by a

subsequent fall Lennon suffered that broke his tailbone, or by an

automobile accident that caused Lennon to seek medical treatment.

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
 

1Fireman's Fund paid Lennon's benefits despite the appeal

because the LHWCA requires compensation be made despite the

pendency of an appeal unless irreparable injury would result. 

See 33 U.S.C. § 921(b)(3). 

3

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. 33

U.S.C. §§ 902(3), 903(a). Waterfront and Fireman's Fund contest

the ALJ's finding that Lennon satisfied the occupational

requirement of Section 902(3). Coverage pursuant to Section 902(3)

includes not only workers injured on navigable waterways, but also

those injured in the immediate waterfront area who participate in

ongoing longshoring operations. Chesapeake & Ohio Ry. v. Schwalb,

493 U.S. 40, 45, 110 S.Ct. 381, 384, 107 L.Ed.2d 278 (1989). The

LHWCA specifically excludes from coverage individuals employed

exclusively to perform office clerical work. 11 U.S.C. § 902(3).

Although the ALJ found that the majority of Lennon's
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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 ALJ found the instances

of Lennon handling cargo to be sufficiently regular so as not to be

considered episodic events excluded from the act's coverage, see

Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1347-48 (5th

Cir.1980), and the ALJ therefore concluded that Lennon was a

longshoreman for purposes of the LHWCA.

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).
 

2Section 914(j) provides that "[i]f the employer has made

advance payments of compensation, he shall be entitled to be

reimbursed out of any unpaid installment or installments of

compensation due." 33 U.S.C. § 914(j). Section 922 provides

that in cases in which a modified order decreases compensation to

which the claimant was entitled, the overpaid compensation may be

recovered from unpaid compensation only, if any exists. 33

U.S.C. § 922. The same is true for compensation forfeited

because the claimant failed to report, omitted, or understated

earnings. See 33 U.S.C. § 908(j). 

5

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
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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, the House report states

explicitly that "[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., 1st Sess., pt. I at 18

(1983) U.S.Code Cong. & Admin.News 1984, pp. 2734, 2751. If
7

Congress intended that employers not be able to seek reimbursement

from those who knowingly and willfully misreport, then certainly it

did not intend to allow reimbursement from less culpable employees.

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 33 U.S.C. 921(b)(3)

(providing for stays if irreparable injury would result).

Waterfront and Fireman's Fund overlook, however, that the

employer's inability to recover compensation on appeal is

insufficient alone to demonstrate irreparable injury. Rivere, 872

F.2d at 1191; Henry v. Gentry Plumbing & Heating Co., 704 F.2d

863, 865 (5th Cir.1983). Thus, the limited-recoupment rule is

consistent with the section governing stays of compensation awards

pending review. Additionally, given that employers are liable for

attorneys' fees for prevailing claimants, see 33 U.S.C. § 928,

employers still have an interest in appealing even when they have

completed benefits distribution.

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
8

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
9

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 33 U.S.C. § 920(a). If Waterfront

presented substantial evidence that Lennon's injury was not work

related, the ALJ was obligated to weigh all of the evidence of

record to determine whether the injury arose out of Lennon's

employment. Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 56 S.Ct.

190, 193, 8 L.Ed. 229 (1935). The BRB was correct to remand the

case back to the ALJ to follow the proper analysis.

Secondly, the BRB properly reversed the ALJ on the

substantive causation issues. The credibility findings of

administrative law judges can be reversed only if they are patently

unreasonable. Cordero v. Triple A Machine Shop, 580 F.2d 1331,

1335 (9th Cir.1978). The ALJ relied heavily on the testimony of

Dr. Vogel, who saw Lennon in 1983, to the exclusion of six doctors

who tested Lennon between 1980 and 1983. Although believing the

testimony of one doctor over numerous others can be reasonable, in

this case it was not. The ALJ failed to note that Dr. Vogel was

unaware of: (1) the 1980 myelogram conducted by Dr. Williams

finding no ruptured disc, but rather pre-existing degenerative disc

disease in Lennon; (2) the 1981 diagnosis by Dr. Kenner that

Lennon had Reiter's Variant, a type of autoimmune arthritic

condition; (3) the January 1983 report by Dr. Shiffman indicating

that Lennon's back problems were due to pre-existing arthritic

changes and not the 1980 injury. The BRB correctly found that
10

given the ALJ's failure to note the major problems with Dr. Vogel's

testimony, the ALJ's finding of causation was patently

unreasonable.

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.