Greathouse v. Newport News Shipbuilding & Dry Dock Co. , 146 F.3d 224 ( 1998 )

Filed: June 24, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-2576
Donald Greathouse,
Petitioner,
versus
Newport News Shipbuilding and Dry Dock Com-
pany, et al,
Respondents.
O R D E R
The court amends its opinion filed June 5, 1998, as follows:
On page 4, second full paragraph, line 10 -- the word “inten-
tion” is corrected to read “intent.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DONALD GREATHOUSE,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND
No. 96-2576
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(94-260)
Argued: April 8, 1998
Decided: June 5, 1998
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
CHAMBERS, United States District Judge for the Southern District
of West Virginia, sitting by designation.
_________________________________________________________________
Petition for review denied and order of the Board affirmed by pub-
lished opinion. Judge Niemeyer wrote the opinion, in which Chief
Judge Wilkinson and Judge Chambers joined.
_________________________________________________________________
COUNSEL
ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Lawrence Philip Postol, SEY-
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FARTH, SHAW, FAIRWEATHER & GERALDSON, Washington,
D.C., for Respondents.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
On November 4, 1991, Donald V. Greathouse, an employee of
Newport News Shipbuilding and Dry Dock Company ("Newport
News Shipbuilding"), filed a claim under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. § 922, for additional work-
ers' compensation benefits (beyond those awarded him in 1981) by
reason of a 1978 work-related injury. Following the 1978 injury and
a stipulation between Greathouse and Newport News Shipbuilding, a
consensual award of compensation was entered on October 5, 1981,
and Newport News Shipbuilding made its last payment on this award
on October 1, 1987. Because Greathouse's claim for additional com-
pensation benefits was filed more than four years after the final pay-
ment on the original award was made, the Administrative Law Judge
("ALJ") denied benefits based on the one-year statute of limitations
contained in 33 U.S.C. § 922. The Benefits Review Board affirmed
by operation of law, and now we too affirm.
I
On August 26, 1978, Greathouse injured his left leg while working
on a valve at Newport News Shipbuilding. Following Greathouse's
claim for workers' compensation benefits under the Longshore Act,
Greathouse and Newport News Shipbuilding stipulated that Great-
house had been temporarily totally disabled by the injury, and that, as
a result of his injury, he had experienced a permanent 10% disability
of his leg. At the time of these stipulations, Greathouse knew that his
injury "would require surgery every few years to remove scar tissue
that would build up as a result of [the] injury." In accordance with the
stipulation, the Deputy Commissioner of the Office of Workers'
Compensation Programs entered a compensation order on October 5,
1981.
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Greathouse's disability became worse over time, and in 1984 and
1987, Newport News Shipbuilding voluntarily paid for periods of
temporary total disability. As well, it paid an additional 10% perma-
nent partial disability over and beyond Greathouse's original 10% dis-
ability. Newport News Shipbuilding made its last compensation
payment to Greathouse under the 1981 award on October 1, 1987.
Several months later, on February 2, 1988, the Department of
Labor advised Greathouse that his right to claim additional compensa-
tion would be barred if he did not file a claim before October 1, 1988.
Greathouse filed no claim at that time.
On August 29, 1991, Greathouse had further surgery on his leg,
and shortly thereafter his doctor upgraded the extent of his permanent
disability to 30%. Accordingly, on November 4, 1991, over four years
after payment was last made on his original award of compensation,
Greathouse filed a claim for additional compensation based on the
continuing effects of his original injury. In response to an opposition
filed with the ALJ by Newport News Shipbuilding that the claim was
untimely, Greathouse noted that during the one-year period after the
last payment of compensation on the original award was made, New-
port News Shipbuilding doctors submitted status reports to the Office
of Workers' Compensation Programs ("OWCP") about his condition.
Greathouse contended that one of these reports constituted a timely
claim. This report, written on September 23, 1987, and received at
OWCP shortly thereafter, stated:
Mr. Greathouse is do[ ]ing well. He is going to return to
work on 9/28/87 and I will check him again in 1 month. I
would expect that he will have an increase in his disability
to 20% as a result of developing arthritis.
Greathouse argued to the ALJ that this report constituted a claim and
that since it was submitted within the one-year period, it tolled the
statutory period in 33 U.S.C. § 922. The ALJ found that the doctor's
report was not a claim and therefore that Greathouse's later claim
filed on November 4, 1991, was untimely. Because the Benefits
Review Board failed to act on the appeal within a year, the ALJ's
judgment became final. See Pub. L. No. 104-134, 110 Stat. 1321-219
(1996).
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II
It is undisputed that the statutory deadline for Greathouse's request
for modification of his original award was October 1, 1988, one year
after the last payment of compensation was made to him under the
original award. Under 33 U.S.C. § 922, review of an existing compen-
sation order may be conducted on the Deputy Commissioner's own
initiative or "upon the application of any party in interest," and this
review must be initiated "prior to one year after the date of the last
payment of compensation." 33 U.S.C. § 922. Since the Deputy Com-
missioner did not act on his own initiative, Greathouse was required
to file a claim within the one year following the October 1, 1987 pay-
ment to toll the limitations. He did so only if the doctor's report of
September 23, 1987, amounted to a claim.
Because the Longshore Act "must be liberally construed in confor-
mance with its purpose," Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 268 (1977), we have held that an application or claim
under § 922 need not be formal. It "need only be sufficient to trigger
review before the one-year limitations period expires." I.T.O. Corp.
v. Pettus, 73 F.3d 523, 526 (4th Cir. 1996). But "while a claimant's
application for modification need not meet any particular form, there
must be some basis for a reasonable person to conclude that a modifi-
cation request has been made." Id. at 527. In this regard, a § 922
application must manifest an actual intent to seek compensation
for a particular loss, and filings anticipating future losses are not suffi-
cient to initiate § 922 review. Id.
Greathouse argues that the Newport News Shipbuilding doctor's
report about his changing condition, which was filed within the one
year after his last payment of compensation was made, constituted a
claim satisfying the liberal standards of § 922. The resolution of this
case thus depends on whether this doctor's report made on September
23, 1987, was in fact a claim for additional compensation.
The doctor's report on which Greathouse relies stated that Great-
house was doing well and would be returning to work. It also
announced that the doctor would check Greathouse again in another
month. Finally it concluded, "I would expect that[Greathouse] will
have an increase in his disability to 20% as a result of developing
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arthritis." We do not believe that this language effectively manifests
an intent by Greathouse that he was making a claim for additional
compensation.
First, the doctor's comment does not facially indicate Greathouse's
intent to request a modification to the original order. Rather, it states
simply the doctor's opinion that "I would expect that [Greathouse]
will have an increase in his disability to 20% as a result of developing
arthritis." Second, the report was submitted by Newport News Ship-
building pursuant to a regulatory requirement to provide such reports,
and not by Greathouse. Consequently, the report says nothing about
Greathouse's intent to request modification. Third, the report states
that the doctor expects Greathouse to develop a 20% disability in the
future. Under Pettus, however, anticipatory filings cannot manifest
the requisite intent. See 73 F.3d at 527. Finally, the report states that
Greathouse's disability would probably increase to 20%. At the time
of the report, however, Newport News Shipbuilding had already vol-
untarily paid Greathouse for a 20% disability. Therefore neither New-
port News Shipbuilding nor the OWCP could have reasonably
concluded that an official medical report confirming the 20% disabil-
ity would indicate an intent by Greathouse to request further modifi-
cation.
Because the doctor's report submitted by Newport News Ship-
building does not manifest an actual intent by Greathouse to make a
claim for modification of his original award, it cannot constitute a
claim under § 922. Greathouse's November 4, 1991 claim was there-
fore untimely. For these reasons, Greathouse's petition for review is
denied and the decision of the Benefits Review Board is affirmed.
IT IS SO ORDERED
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