Porter v. Newport News Shipbuilding and Dry Dock Co.

• Decision Date: 18 October 2002
• Docket Number: BRB 02-0287,02-0287A
• Parties: AMY PORTER, Claimant-Petitioner Cross-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Self-Insured Employer-Respondent Cross-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent
• Court: Longshore Complaints Court of Appeals

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

BRB Nos. 02-0287, 02-0287A

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

Claimant appeals and employer cross-appeals the Decision and Order (2001-LHC-1658, 2001-LHC-1659) 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.

On October 28, 1992, claimant was diagnosed with carpal tunnel syndrome, and was temporarily totally disabled as a result for one week in 1994. On October 16, 1995, she had further carpal tunnel problems and sustained a 10 percent impairment to her right arm, entitling her to 31.2 weeks of benefits under the schedule, 33 U.S.C. §908(c)(1). The district director held an informal conference and issued a compensation order awarding claimant benefits in accordance with the parties' stipulations. Employer's last payment of benefits was made on July 25, 1999. Cl. Ex. 3. On August 12, 1999, 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. 2. In a letter dated October 18, 1999, the claims examiner asked for clarification of the August 12 letter. Emp. Ex. 6. In a reply letter dated October 21, 1999, claimant specifically stated she did not wish to have an informal conference scheduled. Emp. Ex. 7. On March 13, 2001, claimant sent a letter to the district director requesting an informal conference on the issue of temporary total disability benefits from January 5, 2001, and continuing, because she had undergone surgery as a result of her worsening wrist condition. ALJ Ex. 1.

The administrative law judge found that claimant's August 12, 1999, letter constituted a valid motion for modification, rejecting employer's argument to the contrary. Nevertheless, he found that the correspondence from claimant to the OWCP in October 1999, stating there was no need for an informal conference, "stopped the Rambo II process in its tracks[, ]" Decision and Order at 5, although it did not constitute a withdrawal of the claim. Accordingly, he found that the claim for a nominal award remained open and pending until an order was issued. Despite his determination that the October 1999 letter did not constitute a withdrawal of the August 1999 claim, he determined that it "torpedoed the process" and concluded claimant is estopped from "pursuing her own claim by virtue of her own impediment to the normal processing of it." Id. at 5-6. Because he found claimant was estopped from pursuing the 1999 claim, the administrative law judge determined the March 2001 claim for temporary total disability benefits was barred by the statute of limitations under Section 22, 33 U.S.C. §922, as it was filed more than one year after the July 21, 1999, compensation order. Therefore, the administrative law judge denied claimant's claim for benefits. Decision and Order at 6.

Claimant appeals the administrative law judge's decision, contending the doctrine of equitable estoppel does not apply to this case. She argues she never withdrew her 1999 petition for modification, the October 1999 letter did not forever rule out an informal conference, there is no requirement that an informal conference be held immediately and, in any event, employer also chose not to pursue the claim. She contends her claim for a de minimis award constituted a valid and timely motion for modification, tolling the Section 22 statute of limitations, and that this claim is still open as it has not been adjudicated. The Director, Office of Workers' Compensation Programs (the Director), responds in agreement with claimant's contentions. Employer responds to claimant's appeal, arguing that equitable estoppel was properly applied and that it is unreasonable for claimant to assert that employer should have to pursue claimant's claim. BRB No. 02-0287. In its cross-appeal, employer argues that the request for a de minimis award does not constitute a valid motion for modification or an actual nominal award which would toll the statutory time for filing a motion for modification. Employer also asserts that the motion claimant filed in 2001 for temporary total disability benefits did not relate back to the original petition for a nominal award pursuant to Rule 15(c) of the Federal Rules of Civil Procedure (FRCP), Fed.R.Civ.P. 15(c). The Director and claimant respond, urging the Board to reject employer's arguments.^[1] BRB No. 02-0287A.

Nominal Award and Section 22 in General

Nominal or de minimis awards are benefits to which an injured employee may be entitled if she has no current loss of wage-earning capacity as a result of her injury but has established the significant possibility that the injury will cause future economic harm. Rambo II, 521 U.S. 121 31 BRBS 54(CRT) (1997). 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 re-open 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). In order to determine whether a filing constitutes a valid motion for modification manifesting an actual intent to pursue a claim for benefits, the administrative law judge must consider both the content of the filing and the context in which it was filed, i.e., the circumstances of the case itself. Jones v. Newport News Shipbuilding & Dry Dock, __BRBS __, BRB No. 02-0227 (Oct. 18, 2002), citing Consolidation Coal Co. v. Borda, 171 F.3d 175, 181, 21 BLR 2-545, 2-557 (4^th Cir. 1999). A request for modification must be made prior to one year from 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 received permanent partial disability benefits under the schedule for her carpal tunnel syndrome, and, on August 12, 1999, fewer than three weeks after final payment of those benefits, claimant sent a letter to the OWCP requesting an award of nominal benefits. The letter stated:

[Claimant] has a condition which is likely to deteriorate further in the future. She therefore requests a minimal ongoing compensation award for purposes of keeping her claim open in the future. She 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, she should receive a minimal ongoing compensation award. Kindly note this letter as a request for that.

Cl. Ex. 2. The administrative law judge found this letter sufficient to constitute a valid and timely motion for modification, Decision and Order at 5, and it is undisputed that it was filed within one year of the date claimant was last paid benefits.^[2]

Employer argues that claimant's request for a ...