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                                  BRB No. 92-1404

PASQUALE SCOGNAMILLO                    )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
LONG BEACH CONTAINER                    )    DATE ISSUED:   02/23/1995
TERMINAL                                )
                                        )
     and                                )
                                        )
SIGNAL ADMINISTRATORS,                  )
INCORPORATED                            )
                                        )
          Employer/Carrier-             )
          Respondents                   )
                                        )
ORTHOPEDIC SURGERY MEDICAL              )
GROUP OF LONG BEACH,                    )
INCORPORATED                            )
                                        )
          Petitioner                    )    DECISION AND ORDER

     Appeal of the Decision and Order - Denying Benefits of Ellin M. O'Shea,
     Administrative Law Judge, United States Department of Labor.

     Kathleen E. Skeber (Administrator of Orthopedic Surgery Medical Group of
     Long Beach, Inc.), Long Beach, California, for petitioner.

     Before:  HALL, Chief Administrative Appeals Judge, DOLDER and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Orthopedic Surgery Medical Group (petitioner) appeals the Decision and Order
Denying Benefits (90-LHC-2338) of Administrative Law Judge Ellin M. O'Shea on a
claim filed pursuant to the provisions of the Longshore and Harbor Workers'
Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act).  We
must affirm the findings of fact and conclusions of law of the administrative law
judge if they are rational, supported by  substantial evidence, and in accordance
with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S.
359 (1965); 33 U.S.C. §921(b)(3).

     While working for employer as a longshoreman, claimant injured his right ankle
on October 28, 1989.  Employer voluntarily paid claimant temporary total disability
benefits from October 28, 1989 through April 4, 1990.  The administrative law judge
found that claimant could return to his usual longshore work on April 4, 1990, and
that as of July 23, 1990, claimant did not require additional medical treatment. 


     Subsequent to the issuance of the administrative law judge's Decision and
Order, carrier's risk management firm submitted a letter to claimant's treating
physician, Dr. Roe, a member of the Orthopedic Medical Group of Long Beach,
requesting that he reimburse carrier $576 for treatment rendered after July 23,
1990.  On February 21, 1992, petitioner submitted a letter to the Board, which the
Board accepted as a Petition for Review, protesting the carrier's request.
See Order dated February 7, 1994.  In the letter, petitioner requests
clarification of its responsibility, stating that Dr. Roe had obtained
authorization from carrier to treat claimant before he started treating claimant,
and it was not until June 1991, that carrier, by letter to Dr. Roe, indicated it
was rescinding its authorization as of May 24, 1991.[1]   Petitioner states that it is unreasonable for it to have to refund
carrier for treatment carrier authorized.  Moreover, petitioner queries whether it,
in turn, is to retroactively demand reimbursement from claimant for the previously
authorized medical services. Carrier has not responded to this letter.

     Initially, we note that the administrative law judge did not order petitioner
to reimburse carrier.  Furthermore, there is no provision in the Act allowing an
employer to obtain reimbursement of overpayments of compensation from a claimant.
See Stevedoring Services of America, Inc. v. Eggert, 953 F.2d
552, 25 BRBS 92 (CRT)(9th Cir. 1992), cert. denied, 112 S.Ct. 3056 (1992);[2] see also Ceres Gulf v. Cooper, 957 F.2d
1199, 25 BRBS 125 (CRT)(9th Cir. 1992);[3]
Vitola v. Navy Resale & Services Support Office, 26 BRBS 88 (1993).  The Act
provides only for a credit of excess payments against unpaid compensation due.
See Eggert, 953 F.2d at  556-557, 25 BRBS at 97-99 (CRT); 33 U.S.C.
§§908(j), 914(j), 922.  It follows, therefore, that carrier cannot obtain
reimbursement from a physician for paid medical expenses that are subsequently
found to be unnecessary.  We therefore hold that petitioner is not required to
reimburse carrier for authorized services rendered after July 23, 1990.     Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed.     

     SO ORDERED.

                                                                                                BETTY JEAN HALL, Chief
                              Administrative Appeals Judge       

               

                                                                                                NANCY S. DOLDER
                              Administrative Appeals Judge
     


                                                                                                REGINA C. McGRANERY 
                              Administrative Appeals Judge 
                         


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Footnotes.


1)The services in question cover the period from September 24, 1990 through March 7, 1991. Back to Text
2)The court also noted that "it appears likely that Congress has expressed its intent to preempt state common law claims by employers against claimants for repayment of alleged overpayments of disability compensation." Eggert, 953 F.2d at 558 n. 7, 25 BRBS at 100 n.7 (CRT) (emphasis in original). Back to Text
3)The court in Ceres Gulf also rejected the employer's attempt to recoup overpayments under the general federal question statute, 28 U.S.C. §1331. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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