     Case: 10-60804     Document: 00511665547         Page: 1     Date Filed: 11/15/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 15, 2011

                                       No. 10-60804                        Lyle W. Cayce
                                                                                Clerk

CALEB BRETT, L.L.C.; LIBERTY MUTUAL FIRE INSURANCE
COMPANY,

                                                  Petitioners
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; RICK O. CARTER,

                                                  Respondents



        On Petition for Review of an Order of the Benefits Review Board,
                       United States Department of Labor
                                    (08-0741)


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioners, Caleb Brett, LLC (“Caleb Brett”) and Liberty Mutual Fire
Insurance Company (“Liberty Mutual”), seek review of an Order of the Labor
Department’s Benefits Review Board. Because we lack jurisdiction to grant the
only relief requested by Petitioners, the petition is DISMISSED.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 10-60804

                        FACTS AND PROCEEDINGS
      Respondent Rick Carter was seriously injured in 1991 while working for
Caleb Brett as a longshoreman. Carter filed a claim under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901–951. A 1996
decision by an Administrative Law Judge (“ALJ”) awarded Carter continuing
medical expenses. At all relevant times, Dr. Edgar Viets, a chiropractor, has
been Carter’s designated treating physician within the meaning for the LHWCA.
Viets performed “chiropractic adjustments” on Carter’s neck and spine and also
ordered preparatory massage and ultrasound treatments (together, the “adjunct
therapies”), which were performed by a licensed massage therapist in Viets’
office, in conjunction with his chiropractic treatments.
      Following the 1996 compensation order, Caleb Brett’s insurer, Liberty
Mutual, began paying for all treatments billed by Viets, but in 2006, it stopped
paying for the adjunct therapies. Carter brought the nonpayment to the
attention of the San Francisco district director of the Labor Department’s Office
of Workers’ Compensation Programs (“OWCP”), who referred the matter to an
ALJ for resolution. On June 24, 2008, the ALJ issued a Decision and Order
Denying Benefits (the “ALJ Decision”), in which he concluded that although the
adjunct therapies were reasonable and necessary for the treatment of Carter’s
injury, they were not reimbursable under the LHWCA and its implementing
regulations.
      Carter appealed the ALJ Decision to the Department of Labor Benefits
Review Board (the “Board”). In a “Decision and Order” dated April 16, 2009 (the
“First Board Order”), the Board reversed, finding that the adjunct therapies
were reimbursable. Liberty Mutual attempted to appeal the First Board Order,
but mistakenly filed its Petition for Review, dated June 12, 2009, with the Board




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                                        No. 10-60804

instead of with this court.1 Liberty Mutual consequently failed to file an appeal
of the First Board Order within the applicable sixty-day window. See 33 U.S.C.
§ 921(c). Meanwhile, Liberty Mutual refused to reimburse the unpaid bills for
the adjunct therapies. In response, Carter petitioned the OWCP district director
for a supplemental order declaring default under the 1996 continuing
compensation order. Such a supplemental order is necessary to convert a Board
decision into an enforceable order that can be brought into district court for
entry of judgment. Liberty Mutual argued that a supplemental order declaring
default was inappropriate because the First Board Order was not an “Order
requiring payment of benefits” since it did not include express findings as to the
amount of the award.
       Perhaps convinced by Liberty Mutual’s argument, the district director did
not issue the supplemental order promptly. On December 14, 2009, Carter
submitted a filing to the Board entitled “Motion for Clarification,” seeking
confirmation that the First Board Order had in fact been a final award of
compensation. In an Order dated August 18, 2010 (the “Second Board Order”),
the Board responded to Carter’s motion by “clarify[ing] that a reversal of the
administrative law judge’s denial of medical benefits constitutes an award of
medical benefits to claimant, particularly in this case, as the amount was not in
dispute.” The Board went on to explicitly state that Carter’s remedy for non-
payment was to seek enforcement of the First Board Order, as he had already
attempted to do.
       Petitioners filed a timely petition for review of the Second Board Order
under § 21(c) of the LHWCA.2 After Petitioners filed this appeal, the San


       1
           Liberty Mutual could have petitioned the Board for reconsideration, but did not.
       2
        Although Carter’s case was administratively transferred to the district director in San
Francisco when Carter moved to the west coast after his injury, the injury occurred near
Houston, and § 21(c) vests the court of appeals for “the circuit in which [a worker’s] injury

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                                      No. 10-60804

Francisco district director granted Carter a Supplementary Order Declaring
Default. On October 20, 2011, the District Court for the Northern District of
California, acting on Carter’s application, directed the entry of judgment on the
district director’s Supplementary Order.
                                       ANALYSIS
       The parties all agree that there are serious questions regarding this court’s
jurisdiction to hear this appeal. Petitioners argue that neither the First nor the
Second Board Order constitutes an appealable “final order” within the meaning
of this court’s decision in Lazarus v. Chevron U.S.A., Inc., 958 F.2d 1297, 1303
(5th Cir. 1992), thereby undercutting the grounds for their own petition. They
urge the court either to (1) dismiss for lack of jurisdiction on the basis that the
Second Board Order is not a final award and is therefore unappealable under the
LHWCA, or (2) disregard the long-elapsed time bar and reverse the First Board
Order on the underlying substantive question concerning the reimbursability of
the adjunct therapies. Petitioners evidently hope that either outcome would
thwart Carter’s continued efforts to have the Board’s orders enforced.
       The Director of the OWCP (the “Director”), as a respondent, has moved for
dismissal for lack of subject matter jurisdiction. The Director argues that the
court lacks jurisdiction because the Board lacked jurisdiction to issue the Second
Board Order, which it reads as a reconsideration of the First Board Order. The
Director reasons that because neither party moved for reconsideration of the
First Board Order within the thirty-day statutory window, the Board had no
authority to revisit its previous decision, and the Second Board Order is
therefore a non-appealable legal nullity.
       In response to the Director’s motion to dismiss, Carter argues that the
Second Board Order purported only to clarify the meaning, rather than



occurred” with review jurisdiction over final Board orders.

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reconsider the substance, of the First Board Order, which Carter argues the
Board had inherent authority to do. Carter therefore concludes that the Second
Board Order is a valid and appealable final order, but because it made no new
substantive decisions, the only issue potentially reviewable by this court is the
correctness of the Second Board Order’s declaration that the First Board Order
was final and enforceable.3
       Importantly, Petitioners’ only prayer for relief requests vacatur of the First
Board Order and reinstatement of the ALJ Decision. Moreover, their limited
request for relief is not a simple oversight, as the vast majority of their brief
attacks the merits of the First Board Order’s substantive determination that the
adjunct therapies were reimbursable. Thus, Petitioners are seeking review only
of the First Board Order, but they fail to advance any argument as to how we
could properly consider the merits of the First Board Order. Either (1) the First
Board Order was, as Carter and the Director argue, a final order within the
meaning of Lazarus, in which case it became unreviewable sixty days after it
was issued, or (2) neither the First nor the Second Board Order was a final
order, as Petitioners argue, in which case Petitioners have nothing to appeal.
Petitioners’ only attempt to navigate this dilemma is their frivolous request that
the court disregard the jurisdictional question and consider the “primary
substantive issue,” meaning the question of whether the adjunct therapies are
properly reimbursable.
                                     CONCLUSION
       There is no route by which we can reach the merits of the issue for which
Petitioners seek review. The petition is therefore DISMISSED for lack of
jurisdiction to consider Petitioners’ requested relief.


       3
        Carter separately argues that the court has no jurisdiction to hear Petitioners’ appeal
because the district court in the Northern District of California has entered judgment against
Petitioners.

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