Jones v. Newport News Shipbuilding and Dry Dock Co.

• Decision Date: 18 October 2002
• Docket Number: BRB 02-0227
• Parties: QUENTIN L. JONES, Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent
• Court: Longshore Complaints Court of Appeals

QUENTIN L. JONES, Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 02-0227

October 18, 2002

Appeal of the Decision and Order of Fletcher E. Campbell, Jr. Administrative Law Judge, United States Department of Labor.

Gregory E. Camden (Montagna, Breit, Klein & Camden, L.L.P.), Norfolk, Virginia, for claimant.

Jonathan H. Walker (Mason, Cowardin & Mason, P.C.), Newport News, Virginia, for self-insured employer.

Peter B. Silvain, Jr. (Eugene Scalia, Solicitor of Labor; John F. Depenbrock, Jr., Associate Solicitor; Burke Wong, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

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

DECISION AND ORDER

PER CURIAM

Employer appeals the Decision and Order (2001-LHC-832) of Administrative Law Judge Fletcher E. Campbell, Jr., rendered 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 administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The Board heard oral argument in this case on August 20, 2002, in Newport News, Virginia.^[1]

On August 11, 1997, claimant injured his left elbow and left knee during the course of his employment. Employer voluntarily paid claimant medical benefits, temporary total disability benefits from November 13, 1997, through March 2 1998, 33 U.S.C. §908(b), and permanent partial disability benefits for a 20 percent impairment to claimant's left knee, 33 U.S.C. §908(c)(2), and for a three percent impairment to claimant's left elbow, 33 U.S.C. §908(c)(1), making its last payment on October 26, 1998. Cl. Ex. 1. Following an informal conference, the district director issued a compensation order awarding claimant the benefits employer had already paid, pursuant to the parties' stipulations. On August 11, 1999, within one year of the last payment of benefits, claimant sent a letter to the Office of Workers' Compensation Programs (OWCP) requesting "minimal ongoing compensation" pursuant to Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54(CRT) (1997). Cl. Ex. 17. On October 13, 2000, and on November 2, 2000, claimant's attorney sent letters to OWCP requesting an informal conference on the issue of permanent total disability following employer's decision to pass claimant out of work. Cl. Ex. 3; Emp. Ex. 14. Following an informal conference, the district director transferred the case to the Office of Administrative Law Judges (OALJ) for a formal hearing.

The primary issue before the administrative law judge was whether claimant filed a timely motion for modification pursuant to Section 22 of the Act, 33 U.S.C. §922.1 He found that claimant's claim for permanent total disability benefits, made in October and November 2000, was timely because claimant's August 11, 1999, request for nominal benefits constituted a valid and timely filed motion for modification which remained pending as it had not been adjudicated or withdrawn. Decision and Order at 8. In determining that the 1999 filing was a valid motion for modification, the administrative law judge rejected employer's arguments that the petition was inadequate because claimant did not show with specificity a significant possibility of future wage loss the claim was frivolous, and claimant cannot obtain a nominal award as he had already been paid for his injuries under the schedule. He reasoned that because claimant developed a new injury to his hip, a body part not covered by the schedule, as a result of his work injury, and as employer accepted liability for the hip injury, the claim filed in 1999 was not a frivolous attempt to forestall closure of the case. Decision and Order at 9. Consequently, the administrative law judge considered the merits of claimant's claim and found that claimant is entitled to temporary total and temporary partial disability benefits for his hip injury beginning on October 9, 2000, and continuing until April 29, 2001, the date claimant returned to work for employer. Id. at 12-13. Employer appeals the decision, and claimant and the Director, Office of Workers' Compensation Programs (the Director), respond, urging affirmance.^[2]

Employer contends the administrative law judge erred in finding that claimant filed a timely motion for modification and, thus, in awarding benefits. It avers that the 1999 filing was insufficient to toll the statute of limitations because the purpose of a de minimis award is to extend the Section 22 filing period, and there was no award of nominal benefits here. Further, employer asserts that the letter did not constitute a valid motion for modification because it is a prohibited anticipatory filing. Alternatively, employer argues that even if the letter did constitute a valid petition for modification, claimant abandoned the 1999 claim by inaction and the amended claims filed in 2000 did not relate back to the original filing pursuant to Rule 15(c) of the Federal Rules of Civil Procedure (FRCP), Fed.R.Civ.P. 15(c). Accordingly, employer contends the amended motions filed in October and November 2000 are barred by the Section 22 statute of limitations. We affirm the administrative law judge's decision for the following reasons.

Nominal Awards and Section 22 in General

Nominal or de minimis awards are benefits to which an injured employee may be entitled if he has no current loss of wage-earning capacity as a result of his injury but has established a significant possibility that the injury will cause future economic harm. Rambo II, 521 U.S. 121 31 BRBS 54(CRT). The claimant bears the burden of proving by a preponderance of the evidence that "the odds are significant that his wage-earning capacity will fall below his pre-injury wages at some point in the future." Rambo II, 521 U.S. at 139, 31 BRBS at 61(CRT); see Barbera v. Director, OWCP, 245 F.3d 282, 35 BRBS 27(CRT) (3d Cir. 2001); Gilliam v. Newport News Shipbuilding & Dry Dock Co., 35 BRBS 69 (2001). Section 22 of the Act permits the modification of a final award if the party seeking to alter the award can establish either a change in conditions or a mistake in a determination of fact. 33 U.S.C. §922; Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1(CRT) (1995). Under Section 22, an application to reopen a claim need not meet any formal criteria. Rather, it need only be a writing such that a reasonable person would conclude that a modification request has been made. I.T.O. Corp. of Virginia v. Pettus, 73 F.3d 523, 30 BRBS 6(CRT) (4^th Cir. 1996), cert. denied, 519 U.S. 807 (1996); Fireman's Fund Ins. Co. v. Bergeron, 493 F.2d 545 (5^th Cir. 1974); Gilliam, 35 BRBS 69; Madrid v. Coast Marine Constr Co., 22 BRBS 148 (1989). The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has stated that the modification application "must manifest an actual intention to seek compensation for a particular loss, and filings anticipating future losses are not sufficient to initiate § 922 review." Greathouse v. Newport News Shipbuilding & Dry Dock Co., 146 F.3d 224, 226, 32 BRBS 102, 103(CRT) (4^th Cir. 1998) (emphasis in original); see also Gilliam, 35 BRBS 69; Meekins v. Newport News Shipbuilding & Dry Dock Co., 34 BRBS 5, aff'd mem., 238 F.3d 413 (4^th Cir. 2000). The Fourth Circuit further explained that the "validity" of a motion for modification must come from the "content and context of the [request for modification] itself. . . ." Consolidation Coal Co. v. Borda, 171 F.3d 175, 181, 21 BLR 2-545, 2-557 (4^th Cir. 1999). To be considered timely, a request for modification must be made prior to one year after the last payment of compensation or the denial of the claim. Betty B Coal Co. v. Director, OWCP, 194 F.3d 491, 22 BLR 2-1 (4^th Cir. 1999); Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988).

In this case, claimant was awarded benefits under the schedule for his work-related injury. On August 11, 1999, ten months after final payment of benefits, but after the development of his hip condition, claimant sent a letter to OWCP requesting nominal benefits. The letter stated:

[Claimant] has a condition which is likely to deteriorate further in the future. He therefore requests a minimal ongoing compensation award for purposes of keeping his claim open in the future. He will require additional medical attention and may lose additional time from work in the future. Therefore in accordance with the United States Supreme Court's decision in Rambo II, he should receive a minimal ongoing compensation award. Kindly note this letter as a request for that.

Cl. Ex. 17. The administrative law judge found this letter sufficient to constitute a valid and timely motion for modification, Decision and Order at 8, and it is undisputed that this letter was filed within one year of the date claimant was last paid benefits.

Employer initially argues that claimant's request for a de minimis award is not sufficient under Section 22 as an actual Rambo II award is required in order to toll the statute of limitations and as the letter is a prohibited anticipatory filing which does not allege a change of condition or a mistake of fact. Claimant and the Director disagree with employer; they assert the 1999 letter tolled the statute of...