IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-3382

 

ANDRE P. LAZARUS,

Plaintiff-Appellant,

versus

CHEVRON USA, INC.,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Louisiana 

 

(April 13, 1992)

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Andre Lazarus appeals the district court's dismissal of his

petition for enforcement of a supplementary order issued by a

deputy commissioner of the Department of Labor. He argues that the

district court erred in finding that medical benefits are not

included in compensation for the purposes of enforcement

proceedings under § 18(a) of the Longshore and Harbor Workers'

Compensation Act, 33 U.S.C. § 918(a). We find that compensation

under § 18(a) does include medical benefits and that the district

court erred in dismissing Lazarus' petition for this reason. We

affirm the district court's decision, however, because the

underlying compensation order was not a final and enforceable

order.
2

I.

In January of 1986, Lazarus was a petroleum engineer employed

by Chevron USA, Inc.. While working on one of Chevron's oil rigs

off the coast of Louisiana, he slipped and fell and injured his

back. Doctors diagnosed Lazarus' injury as a lower back strain and

prescribed a program of physical therapy, exercise, and medication.

Chevron paid Lazarus disability compensation and medical benefits

while he was recuperating. Lazarus returned to work briefly in

June of 1986, but later that month sought treatment for depression,

and entered a psychiatric hospital. He remained in the hospital

for a month, and then continued to receive treatment on an

outpatient basis thereafter. Lazarus asked Chevron to reinstate

his workers' compensation benefits, but Chevron refused, asserting

that Lazarus' psychiatric condition was unrelated to the back

injury he had sustained on the rig. In August of 1986, Lazarus was

laid off in a reduction in force.

Lazarus remained unemployed thereafter. He continued to

complain of back pain and depression in the ensuing months and

continued to visit doctors sporadically for treatment. In July of

1988, he was admitted to the River Oaks Hospital for treatment of

severe depression. He remained in residence at River Oaks for

about a year and a half. He filed a claim against Chevron with the

deputy commissioner of the Department of Labor, asserting his right

to workers' compensation benefits under the Longshore and Harbor

Workers' Compensation Act, 33 U.S.C. §§ 907, 914. The deputy

commissioner investigated the claim and found that Lazarus'
3

psychiatric treatment was unrelated to the injury he sustained to

his back. Lazarus disputed this conclusion and asked for a hearing

before an administrative law judge. In September of 1989, an ALJ

found that Lazarus' psychological condition was causally related to

his back injury, and accordingly ordered Chevron to pay all unpaid

workers' compensation benefits dating back to January 1986. The

award included disability compensation based on an average weekly

wage of $ 817.67, all medical expenses related to the injury that

were previously incurred, and such reasonable and necessary future

medical care as Lazarus' disability required.

Chevron immediately reinstated the payment of Lazarus'

disability compensation and paid all past disability benefits that

were due. It did not pay any of Lazarus' medical bills, however.

Chevron appealed the ALJ's decision to the Benefits Review Board.

While this appeal remained pending, Lazarus applied to the deputy

commissioner for a supplementary order under § 18(a) of the Act,

arguing that Chevron was in default because it had not paid any of

his medical expenses as required by the ALJ's order. Chevron

requested an informal conference to contest the amount Lazarus

claimed was in default and the reasonableness of his medical bills.

The deputy commissioner did not respond to Chevron's request for an

informal conference, but issued a supplementary order declaring

Chevron in default on more than $ 300,000 of medical benefits.

Lazarus petitioned for enforcement of this supplementary order

in the district court. Chevron moved to dismiss the petition,

arguing that § 18(a) provides for immediate enforcement only of
4

compensation awards, not awards of medical benefits. Chevron also

urged that the amounts Lazarus claimed were in default were not due

under the ALJ's order, and that the deputy commissioner erred in

denying its request for a hearing on this matter. The district

court found that the deputy commissioner's order to pay medical

expenses was not in accordance with law because the word

"compensation " as used in § 18(a) does not include medical

benefits. It therefore dismissed Lazarus' petition for

enforcement. Lazarus appeals. 

II.

The Longshore and Harbor Workers' Compensation Act has two

provisions by which a district court can enforce compensation

awards. First, under § 21(d), the district court may enforce a

compensation order that has become final, if it determines that the

order was made and served in accordance with law. 33 U.S.C.

§ 921(d). A compensation order becomes final thirty days after it

is filed in the office of the deputy commissioner, or, in the event

a party appeals the order to the Benefits Review Board, when the

Board makes a decision which resolves the merits of the

administrative proceeding. 33 U.S.C. §§ 921(a); Newpark

Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 400 (5th

Cir. 1984). Second, under § 18(a), the district court may enforce

a supplementary order issued by the deputy commissioner to an

employer who has been in default for more than thirty days in the

payment of compensation due and payable under any award of

compensation. 33 U.S.C. § 918(a). Compensation is due and payable
5

when a compensation order is filed in the office of the deputy

commissioner. 33 U.S.C. § 921(a); Tidelands Marine Serv. v.

Patterson, 719 F.2d 126, 127 n.1 (5th Cir. 1983). A supplementary

order under § 18(a) is final when entered and is immediately

enforceable by the district court if it is in accordance with law.

Abbott v. Louisiana Insurance Guaranty Ass'n, 889 F.2d 626, 629

(5th Cir. 1989). 

These two provisions are the sole means of enforcing

compensation awards under the Act. 33 U.S.C. § 921(e); Henry v.

Gentry Plumbing & Heating Co., 704 F.2d 863, 864 n.1 (5th Cir.

1983). Whereas § 21(d) provides for enforcement of an appealed

order only after the appeal is finally resolved by the Board,

§ 18(a) allows a claimant who has obtained an award at the ALJ

level to enforce that award promptly via a supplementary order,

despite the possibility that the award may be overturned on review.

This section is expressly designed to provide "a quick and

inexpensive mechanism for prompt enforcement of unpaid compensation

awards, a theme central to the spirit, intent, and purposes of the

LHWCA." Tidelands, 719 F.2d at 129; see also Providence Washington

Insurance Co. v. Director, Office of Workers' Compensation

Programs, 765 F.2d 1381, 1385 (9th Cir. 1985). The Board is

authorized to grant a stay of enforcement pending appeal under

§ 21(b)(3), but no stay will issue unless irreparable injury would

otherwise ensue to the employer or carrier. 33 U.S.C. § 921(b)(3).

Congress has made a policy choice that in most circumstances, "it

is preferable that an injured worker receive regular compensation,
6

even that later is determined to have been wrongly exacted and not

recoverable by the payer, than that he be left without assistance

until all amounts are finally determined." Henry, 704 F.2d at 865.

The question we must decide is whether medical benefits are

included in "compensation" for the purposes of the accelerated

enforcement procedure under § 18(a). "Compensation" is defined in

§ 2 of the Act as "the money allowance payable to an employee or to

his dependents as provided for in this chapter. . . ." 33 U.S.C.

§ 902(12). We must construe this definition liberally in favor of

injured workers. Holcomb v. Robert W. Kirk & Associates, Inc., 655

F.2d 589, 592 (5th Cir. 1981). Medical benefits can constitute

monies payable to an employee or his dependents. Under § 7 of the

Act, an employee is entitled to recover any amount expended by him

for medical or other treatment if the employer refuses or neglects

a request to furnish such treatment, or if the nature of the

employee's injury requires treatment and the employer neglects to

authorize treatment despite knowledge of the injury. 33 U.S.C.

§ 907(d). We are persuaded that an award obtained by an employee

under these circumstances is an award of compensation as defined in

§ 2.

The structure of the Act supports this interpretation.

Section 4(a) is entitled "liability for compensation" and states

that "[e]very employer shall be liable for and secure the payment

to his employees of the compensation payable under sections 907,

908, and 909 of this title." 33 U.S.C. § 904(a). These three

sections cover the three kinds of benefits to which an employee may
7

be entitled: medical services and supplies (§ 7), compensation for

disability (§ 8), and compensation for death (§ 9). Since § 7

deals exclusively with the provision of medical services and

supplies, and § 4 refers to the "compensation" payable under § 7,

Congress must have intended the term "compensation" to encompass

the provision of medical benefits, at least in some circumstances.

See Oilfield Safety & Machine Specialties, Inc. v. Harman

Unlimited, Inc., 625 F.2d 1248, 1257 (5th Cir. 1980). Section 6(a)

also refers to § 7 benefits as compensation. 33 U.S.C. § 906(a).

Chevron observes that there are numerous other sections in the

Act which appear to contrast the provision of medical benefits with

the payment of compensation. For example, § 18(b) provides that in

cases where an employer is for some reason unable to pay, the

Secretary of Labor will pay awards from a special fund established

for this purpose, "and, in addition, provide any necessary medical,

surgical, and other treatment required by section 907 . . . ." 33

U.S.C. § 918(b). Similarly, § 33, which deals with settlements

with third parties, states that if no written approval of the

settlement is obtained, or if the employee fails to notify the

employer of any settlement, "all rights to compensation and medical

benefits under this chapter shall be terminated . . . ." 33 U.S.C.

§ 933(g). Indeed, in Chevron's view, the very fact that medical

benefits and disability compensation are treated in separate

sections indicates that the two are mutually exclusive categories.

We disagree. The separate treatment of medical care and

compensation that runs throughout the Act is readily explained.
8

Whereas death and disability benefits generally come in the form of

monetary compensation from employer to employee, § 7 indicates that

Congress envisioned that employers would provide medical care in

kind. The provision states that "[t]he employer shall furnish such

medical, surgical, and other attendance or treatment, nurse and

hospital service, medicine, crutches, and apparatus, for such

period as the nature of the injury or the process of recovery may

require." 33 U.S.C. § 907(a). Originally, the employer or its

carrier would select the health care provider and pay the medical

expenses incurred in treating the employee directly to that

provider. See Marshall v. Pletz, 317 U.S. 383, 391 (1943) ("In the

normal case . . . the insurer defrays the expense of medical care

but does not pay the injured employee anything on account of such

care."). Monetary payments to employees for medical expenses were

necessary, however, in cases where the employer refused to provide

medical care and the employee had to obtain it himself and file a

claim against the employer. Id.

Congress changed this procedure somewhat in 1960 because

employees complained that they should be able to select their own

doctors. See H. Rep. No. 2187, 86th Cong., 2d Sess., reprinted in

1960 U.S. Code Cong & Admin. News 3556, 3556. It provided a

mechanism whereby employees would be allowed to select their own

doctors from a panel of physicians named by the employer and

approved by the deputy commissioner. Pub. L. No. 86-756, 74 Stat.

899, reprinted in 1960 U.S. Code Cong & Admin. News 1269, 1269-71.

In 1972, the procedure was further liberalized, allowing the
9

employee to choose any doctor authorized by the Secretary to render

medical care under the Act. Pub. L. No. 92-576, 86 Stat. 1251,

reprinted in 1972 U.S. Code Cong. & Admin. News 1452, 1456-57; H.

Rep. No. 92-1441, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code

Cong. & Admin. News 4698, 4713-14. Thus employers no longer choose

health care providers to treat their employee's work-related

injuries. Instead, injured employees ask their employers to

authorize medical treatment by the doctors they select. See id..

Nevertheless, the employer's obligation to furnish medical

services in kind remains unchanged. 33 U.S.C. § 907(a). As we

understand the current practice, employers remain directly liable

to health care providers for the medical expenses of their injured

workers when they consent to the provision of medical care. If an

employer refuses or neglects to provide or authorize medical care,

however, the employee must procure medical services independently

and then file a claim with the Secretary to recover his expenses.

33 U.S.C. § 907(d).

The distinction between providing medical services in kind and

paying employees for expenses incurred in obtaining such services

themselves is important to our inquiry here. If 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. Compensation includes only money payable

to an employee or his dependents, 33 U.S.C. § 902(12), not payments

to health care providers on an employee's behalf. If, however, the

employer refuses or neglects to furnish medical services, and the
10

employee incurs expense or debt in obtaining such services, an

award of medical expenses obtained by the employee in a suit

against the employer is "compensation" within the meaning of § 2.

It is money payable to the employee.

Chevron's reliance on Marshall v. Pletz, supra, is therefore

misplaced. In Pletz, the Court held that the furnishing of medical

care to an employee was not payment of compensation within the

meaning of § 13(a) of the Act. The Court did not say that money

paid to the employee for debts incurred in obtaining medical care

could not constitute compensation. Indeed, it implied that an

award reimbursing an employee for money spent to obtain medical

care arguably does qualify as compensation.

Those cases in which this court and others have held that an

award of attorney's fees is not "compensation" within the meaning

of the Act, see, e.g., Guidry v. Booker Drilling Co., 901 F.2d 485,

487 (5th Cir. 1990); Thompson v. Potashnick Construction Co., 812

F.2d 574, 576 (9th Cir. 1987), are also inapposite here. First,

§ 28(a) expressly provides that an award of attorney's fees "shall

be paid directly by the employer or carrier to the attorney for the

claimant." 33 U.S.C. § 928(a). Since the fees are not payable to

the employee, they cannot constitute compensation within the plain

meaning of § 2. Furthermore, unlike the case of medical benefits,

there are no statutory provisions in the Act which refer to

attorney's fees as compensation to the employee. 

Of course, there are some sections in the Act in which it is

clear that Congress used the term "compensation" to refer to
11

disability benefits. See, e.g., 33 U.S.C. § 910 ("the average

weekly wage of the injured employee shall be taken as the basis

upon which to compute compensation"). This does not mean that

compensation cannot also be used to refer to an award of medical

benefits. The same word can be used to describe different kinds of

benefits that fall within the Act's broad definition of

compensation as "the money allowance payable to an employee." 

The only provision in the Act that we have discovered which

appears to contradict our interpretation of "compensation" is

§ 7(c)(1)(B)(i), 33 U.S.C. § 907(c)(1)(B)(i). This section states

that a health care provider may be disqualified from providing

medical care under the Act if it makes false statements "in a claim

for compensation or claim for reimbursement of medical expenses."

This seems to indicate that reimbursing an employee for medical

expenses is something different from "compensation" as the Act

defines it. However, this provision was added to the Act in 1984.

See P.L. No. 98-426, 98 Stat. 1639, 1642; H. Rep. No. 98-570, 98th

Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News

2734, 2745-46. We therefore accord it less weight in determining

the original meaning of "compensation" when Congress enacted the

statute in 1927. 

The Longshore and Harbor Workers' Compensation Act "'must be

liberally construed in conformance with its purpose, and in a way

which avoids harsh and incongruous results.'" Director, Office of

Workers' Compensation Programs v. Perini North River Associates,

459 U.S. 297, 316-17 (1983) (citations omitted). Interpreting the
12

term "compensation" in § 18(a) as including medical benefits

fulfills the purpose of the Act and avoids an incongruous result.

As we have noted, Congress included § 18(a) in the Act so that a

disabled worker could receive benefits promptly after being found

deserving of them, rather than suffer hardship while the benefits

were appealed. See Rivere v. Offshore Painting Contractors, 872

F.2d 1187, 1190 (5th Cir. 1989); Tidelands, 719 F.2d at 129; Henry,

704 F.2d at 865. It did not intend for the administrative review

process added in the 1972 amendments to the Act to frustrate this

goal. See H. Rep. No. 92-1441, 92nd Cong., 2d Sess., reprinted in

1972 U.S. Code Cong. & Admin. News 4698, 4709. We see no reason

why Congress would have provided for immediate enforcement of

awards of disability benefits but not awards of medical benefits.

The financial burden that medical costs impose on an injured

employee is just as debilitating as the loss of income resulting

from the employee's inability to work. Indeed, the provision in

§ 21 limiting the availability of stays pending appeal to the Board

states that "[t]he payment of amounts required by an award shall

not be stayed pending final decision . . . unless ordered by the

Board." 33 U.S.C. § 921(b)(3). This language indicates that

Congress intended any "amount required by an award" to be payable

pending appeal, whether it be disability benefits or medical

expenses or both.

Chevron argues that a delay in payment of medical expenses has

imposed no hardship on Lazarus, since he received medical care from

River Oaks without paying anything. This argument ignores the fact
13

that Lazarus is personally liable for his medical bills. The fact

that River Oaks has not yet attempted to collect from Lazarus is a

fortuity. Furthermore, if awards of medical benefits were not

promptly enforceable, there would be a substantial chilling effect

on the provision of medical services to injured employees whose

ability to pay is dubious. Many health care providers would be

reluctant to provide treatment without some indication that payment

will soon be forthcoming. This would detract from the prompt

relief of injured workers that Congress intended.

Finally, if the term "compensation" does not include medical

benefits in any instance, there is a strong argument that

administrative awards of medical benefits under the Act are never

judicially enforceable, before or after appeal. Section 21

contains the only other enforcement mechanism in the Act other than

§ 18. It is entitled "review of compensation orders" and provides

for judicial enforcement of a "compensation order making an award."

33 U.S.C. § 921(d). If medical benefits cannot constitute

"compensation," they arguably cannot be part of a "compensation

order" enforceable under this section. This cannot have been the

intent of Congress.

In sum, we are persuaded that medical benefits are included in

"compensation" for the purposes of enforcement proceedings under

§ 18(a). The district court erred in refusing to enforce the

deputy commissioner's order to Chevron to pay Lazarus' medical

expenses for this reason.
14

III. 

Chevron also argues that the district court properly refused

to enforce the deputy commissioner's supplementary order because it

was not "in accordance with law" as required by § 18(a). It

contends, inter alia, that the ALJ's underlying order was not a

final enforceable order because it did not adequately state the

amount of compensation which was owed to Lazarus. 

Neither the deputy commissioner nor the district court should

review the underlying merits of the ALJ's decision and order in the

course of § 18(a) enforcement proceedings. Abbott, 889 F.2d at

629-30; Jourdan v. Equitable Equipment Co., 889 F.2d 637, 639-40

(5th Cir. 1989). This would undermine the prompt relief of injured

employees which this section was designed to facilitate. But we

have explained that a compensation order which is not final is not

"in accordance with law" and is therefore not enforceable by resort

to § 18(a). Severin v. Exxon Corp., 910 F.2d 286, 289 (5th Cir.

1990). "To constitute a final decision and order of the ALJ, the

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 dispute between

the parties." Id. 

The portion of the ALJ's order in this case relating to

medical benefits falls afoul of the rule set forth in Severin. The

order provided that Chevron shall furnish "such reasonable and

necessary future medical care and treatment as Claimant's workrelated injury of January 28, 1986, may require, and shall pay for
 

1 Technically, the award of future benefits was not an

award of "compensation" under § 18(a), since the ALJ ordered

Chevron to furnish medical services rather than pay medical

expenses. To make the enforceability of such orders clear, ALJs

should characterize their awards as compensation for medical

expenses the employee will incur, and describe the expenses that

will qualify.

15

all medical expenses related thereto previously incurred." The

ALJ added that "[t]he specific dollar computations of the

compensation award shall be administratively performed by the

Deputy Commissioner." He never specified the amount of

compensation due, nor did he provide a means of calculating this

amount. He did not say what expenses were related to the injury

and did not refer to Lazarus' medical bills as providing the basis

for its award. We do not know for sure whether the ALJ even

reviewed Lazarus' medical bills. The ALJ must not delegate the

task of calculating the amount of the award to the deputy

commissioner unless it provides some method of doing so.1

Lazarus argues that Chevron waived any arguments it may have

had as to the reasonableness of his medical expenses because it did

not raise this issue before the ALJ. We agree that the

reasonableness of Lazarus' medical expenses is a substantive matter

that should have been resolved at the initial ALJ hearing, and that

Chevron cannot raise this issue in the course of enforcement

proceedings. Jourdan, 889 F.2d at 640. However, this does not

relieve the ALJ of his responsibility to prescribe the amount of

its award, or to establish some means of deriving this amount. 

The problem with the ALJ's indeterminate award was compounded

by the deputy commissioner's failure to provide Chevron with a
16

hearing on this matter. Chevron asked for an informal conference,

which the Secretary has provided for by regulation as a means of

resolving disputes over claims without resort to the formal hearing

process. See 20 C.F.R. §§ 702.372, 702.311 et seq. It argued not

only that the medical bills were unreasonable, but also that not

all of the expenses claimed by Lazarus were in fact due under the

ALJ's award. The latter issue is one properly resolved by the

deputy commissioner at an informal conference or, if necessary, at

a formal hearing. See Abbott, 889 F.2d at 629; Jourdan, 889 F.2d

at 639. Instead of convening such proceedings, the deputy

commissioner simply accepted the figure that Lazarus asserted was

in default, without explanation. She does not appear to have made

the "specific dollar computations" contemplated by the ALJ when he

delegated the determination of the amount of the award to the

deputy commissioner. Thus we are left with the possibility that

neither the ALJ nor the deputy commissioner actually calculated the

amount of money Chevron owed.

We are reluctant to extend Lazarus' road to recovery further,

but we cannot ignore the potential prejudice to Chevron in the

proceedings below. Because the ALJ's award was not a final order

enforceable under § 18(a), the district court was entitled to

dismiss Lazarus' petition. We therefore affirm the district

court's decision on grounds independent of those stated by the

court. Cf. United Brands Co. v. Melson, 594 F.2d 1068, 1072 (5th

Cir. 1979). When the ALJ makes express findings as to the amount
17

of the award and the kind of expenses for which Chevron is liable,

its order will be enforceable under § 18(a).

AFFIRMED.