Newport News Shipbld v. DOWCP ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND 
DRY DOCK COMPANY,
Petitioner,
v.
MICHAEL FIRTH; DIRECTOR, OFFICE OF  No. 99-1892
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-1172)
Argued: June 5, 2000
Decided: April 5, 2004
Before WIDENER and KING, Circuit Judges, and
Henry M. HERLONG, Jr., United States District Judge for the
District of South Carolina, sitting by designation.
Petition denied by published opinion. Judge Widener wrote the opin-
ion, in which Judge King and Judge Herlong concurred.
COUNSEL
ARGUED: Jonathan Henry Walker, MASON, COWARDIN &
MASON, Newport News, Virginia, for Petitioner. Mark A. Rein-
2 NEWPORT NEWS SHIPBUILDING v. FIRTH
halter, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondents. ON BRIEF: Henry
L. Solano, Solicitor of Labor, Carol A. De Deo, Associate Solicitor
for Employee Benefits, Laura J. Stomski, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.
OPINION
WIDENER, Circuit Judge:
Plaintiff employer, Newport News Shipbuilding and Dry Dock
Company (Newport), seeks review of the decision of the Benefits
Review Board (the Board) in Firth v. Newport News Shipbuilding and
Dry Dock Co., BRB No. 98-1172 (May 26, 1999). Claimant, Michael
Firth,1 had an existing order granting him benefits under the Long-
shore and Harbor Workers’ Compensation Act (the Act), 33 U.S.C.
§§ 901-950, for a 1988 work-related injury. This case stems from
Firth’s attempt to modify that order to grant him permanent benefits
and addresses who ultimately will pay those benefits, Newport News
or the special fund pursuant to 33 U.S.C. § 908(f), which relieves
employers of the obligation to make benefit payments in certain cir-
cumstances. In the modification proceedings, Newport News argued
that it qualified for relief under § 908(f). The Board, however, found
that the District Director of the Office of Workers’ Compensation
Programs (the Director) was entitled to invoke the absolute defense
provided in 33 U.S.C. § 908(f)(3) on behalf of the special fund. Under
§ 908(f)(3), an employer cannot obtain § 908(f) relief if it does not
comply with mandatory procedural requirements. Thus, Newport
News had to make the continuing benefit payments to Firth. We deny
the petition for review for the following reasons.
1
Firth is not a party to this appeal and will not be affected by its out-
come. He will continue to receive benefits regardless of our disposition
of this case.
NEWPORT NEWS SHIPBUILDING v. FIRTH 3
I.
Firth started working for Newport News in August, 1976 and was
employed by them during all times relevant to this appeal. Firth had
pre-existing health problems, including chronic neck and shoulder
disability, obesity, and thoracic outlet syndrome. These health prob-
lems were compounded on August 10, 1984 when he suffered a work-
related injury of falling from a crane and landing on the back of his
neck. This fall resulted in a sprain of his cervical spine and the left
shoulder joint. As a result of this injury, Firth suffered continuing
pain in his upper extremities and neck and was subjected to light-duty
restrictions on his work.
The events at issue in this case arose when Firth suffered a second
work-related injury to his neck, right shoulder, and upper extremity
on March 9, 1988. At the time, Firth was working in the maintenance
department servicing equipment, and he struck his head against a
mobile crane he was servicing. After this injury, Firth filed a claim
for benefits under the Act, and the Administrative Law Judge (ALJ)
awarded him continuing temporary partial disability benefits begin-
ning on June 20, 1988. Newport News stopped paying these benefits
on November 3, 1996. As a result, on December 3, 1996, Firth
requested an informal conference before the Director to determine his
eligibility for permanent partial disability benefits dating from
November 4, 1996 and continuing. The Director scheduled the con-
ference for January 7, 1997.
Newport News responded to the request for an informal conference
with a letter to the Director dated December 10, 1996 stating, in its
entirety:
I am in receipt of Mr. [Firth’s] December 3, 1996 letter
requesting an informal conference on the above referenced
file.
Since this is not a matter which can be resolved at the
Department of Labor level (since it involves the A.L.J.’s
order) please do not schedule an informal conference and
instruct Mr. [Firth] to forward his LS-18’s as soon as he
deems necessary.
4 NEWPORT NEWS SHIPBUILDING v. FIRTH
The Director responded with a letter dated December 24, 1996 in
which he cancelled the scheduled conference and noted that Firth’s
original request for the conference made a claim for permanent partial
disability benefits. The Director concluded the letter stating:
Inasmuch as the employer has requested the case go for-
ward for formal hearing without the benefit of conference
and has not requested [§ 908(f)] relief nor submitted a fully
documented, duplicate [§ 908(f)] application as is required,
the Pre-Hearing Statement, Form LS-18, filed by claimant’s
counsel will be forwarded for formal adjudication and the
Office of Administrative Law Judges and the Solicitor
advised that [the] Absolute Defense applies.
The record also reveals that Firth’s doctor submitted a letter on
December 10, 1996, 14 days before the Director’s response, to Firth’s
attorney indicating that Firth had a permanent partial disability of the
shoulder and that Firth had reached maximum medical improvement
on October 5, 1993.
Prior to the ALJ’s review of the case, the parties agreed to several
stipulations, including that Firth reached maximum medical improve-
ment on October 5, 1993, and Firth had a full time wage-earning
capacity of $134 per week since November 4, 1996. After making the
stipulations, Newport News informed the ALJ that the only remaining
issue to be determined was Newport’s entitlement to relief from con-
tinuing liability under 33 U.S.C. § 908(f). Newport News then argued
it qualified for that relief in subsequent pleadings before the ALJ. The
Director did not contest that Newport News qualified on the merits
for § 908(f) relief. Instead, the Director argued that Newport News
could not receive that relief because the Director was entitled to
invoke the absolute defense contained in § 908(f)(3) of the Act, which
precludes special fund liability when the employer fails to fulfill man-
datory procedural requirements, because, knowing of the permanency
of Firth’s condition, Newport News failed to present its § 908(f) claim
to the Director while the claim was before the Director and prior to
the time the Director transferred the case to the ALJ.
After finding that Newport News qualified for § 908(f) relief
NEWPORT NEWS SHIPBUILDING v. FIRTH 5
because of Firth’s pre-existing physical condition and 1984 injury,2
the ALJ addressed the availability of the absolute defense. Firth v.
Newport News Shipbldg. & Dry Dock Co., 97-LHC-732 (April 30,
1998). The ALJ determined that the Director could not claim the
absolute defense because Newport satisfied the purpose of the law —
to compel employers to raise the § 908(f) issue early in the claims pro-
cess3 — by applying for § 908(f) relief to the ALJ. In the ALJ’s view,
"no purpose is served by requiring that an application for section
[908(f)] relief be presented to the [director] in a modification case
once the case has been transferred to the Office of Administrative
Law Judges." The ALJ awarded Newport § 908(f) relief. The Director
appealed this decision to the Board.
The Board reversed, finding that the Director was entitled to the
absolute defense and, therefore, that Newport could not receive
§ 908(f) relief. Firth v. Newport News Shipbldg. & Dry Dock Co.,
BRB No. 98-1172 (May 26, 1999). First, the Board determined that
the Act requires the same procedures for modifications of orders as
for initial determinations of benefits. The Board then rested on the
plain statutory and regulatory language, providing for no exception to
the procedural requirements in this case, to deny Newport News
§ 908(f) relief. Newport News seeks review of this decision.
II.
An employer who wishes to benefit from § 908(f) must meet strict
procedural requirements so that
2
The ALJ found that Firth’s total disability was not a result of the 1998
neck injury alone, but that it was made "materially and substantially
greater by" Firth’s pre-existing physical conditions and prior injuries.
Furthermore, the ALJ found that the 1998 neck injury made Firth’s over-
all disability materially and substantially greater.
3
See H.R. Conf. Rep. No. 98-1027, at 31 (1984), reprinted in 1984
U.S.C.C.A.N. 2771, 2781 ("The conferees intend by this provision to
encourage employers to raise the special fund issue early in the claims
adjudication process, in order to assure the [director] the opportunity to
examine the validity of the employer’s basis for seeking special fund
relief.").
6 NEWPORT NEWS SHIPBUILDING v. FIRTH
[a]ny request . . . for apportionment of liability to the special
fund . . . and a statement of the grounds therefore, shall be
presented to the [director]4 prior to the consideration of the
claim by the [director]. Failure to present such request prior
to such consideration shall be an absolute defense to the
special fund’s liability for the payment of any benefits in
connection with such claim.
33 U.S.C. § 908(f)(3) (emphasis added). The only exception to this
requirement arises if "the employer could not have reasonably antici-
pated the liability of the special fund prior to the issuance of a com-
pensation order." 33 U.S.C. § 908(f)(3).
The regulations implementing § 908(f) provide a specific time
frame for when to file an application "prior to the consideration of the
claim by the [director]." An application "should be made as soon as
the permanency of the claimant’s condition becomes known or is an
issue in dispute." 20 C.F.R. § 702.321(b)(1). This time could arise "at
an informal conference held to discuss the permanency of the claim-
ant’s condition." 20 C.F.R. § 702.321(b)(1). Finally, the regulations
reiterate the consequences of failing to comply with these rules — an
absolute defense to the liability of the special fund — and the only
exception to this requirement. 20 C.F.R. § 702.321(b)(3).
The procedures required to present a claim for a modification of
benefits are the same as those for an initial claim for benefits. See 33
U.S.C. § 922; 20 C.F.R. § 702.373. We review orders of the Board for
errors of law de novo. Norfolk Shipbldg. & Drydock Corp. v. Hord,
193 F.3d 797, 800 (4th Cir. 1999).
III.
When a case involves the interpretation of, or compliance with, a
statute, we must adhere to the plain language of that statute. As the
Supreme Court stated,
4
The regulations substitute the term district director for that of deputy
commissioner in the statute. See 20 C.F.R. § 702.105.
NEWPORT NEWS SHIPBUILDING v. FIRTH 7
in interpreting a statute a court should always first turn to
one, cardinal canon before all others. We have stated time
and again that courts must presume that a legislature says in
a statute what it means and means in a statute what it says
there. When the words of a statute are unambiguous, then,
this first canon is also the last: "judicial inquiry is com-
plete."
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)
(internal citations omitted). Section 908(f) unambiguously states that
any request for relief from the special fund must be presented "to the
[director] prior to the consideration of the claim by the [director]." 33
U.S.C. § 908(f)(3)(emphasis added). Otherwise, the Director is enti-
tled to an absolute defense to the special fund’s liability. 33 U.S.C.
§ 908(f)(3).
Newport News concedes in its arguments, and both the ALJ and
the Board found, that Newport did not comply with the language of
the statute. Nor does Newport News argue that the statutory exception
to this requirement applies. Instead, Newport News argues that it did
not need to follow the unambiguous language of § 908(f)(3) because
presenting the claim in the first instance to the ALJ, 11 months after
Newport News had knowledge that a permanent disability would be
in issue, fulfilled the legislative purpose of § 908(f). However, when
a statute is unambiguous, as this one is, and provides an explicit
scheme for obtaining a benefit, we decline to depart from that unam-
biguous statutory language. While the procedure Newport utilized in
this case may satisfy the purpose for enacting § 908(f), it was not the
procedure Congress specifically enacted. When Congress’s direction
is clear, we should not depart from its direction, regardless of how
inefficient that direction appears to be. See Germain, 503 U.S. at 254;
c.f. Director, OWCP v. Newport News Shipbldg. Co., 134 F.3d 1241,
1246 (4th Cir. 1998)(Judge Williams, concurring, joined by Judge
Luttig, the panel majority, held the plain language of § 908(f) gov-
erned decision in the case). We follow that majority. Section 908(f)(3)
sets forth a series of explicit procedural hoops, and Newport had to
comply with them to receive the benefits of the Act.
While we believe the language of the statute speaks for itself, we
note that we are not the only court to hold employers to the terms of
8 NEWPORT NEWS SHIPBUILDING v. FIRTH
§ 908(f). In Bath Iron Works v. Director, OWCP, the First Circuit
denied an employer § 908(f) relief when it failed to file its application
before the Director in the first instance and the statutory exception did
not apply. See Bath Iron Works, 950 F.2d 56, 57-59 (1st Cir. 1991);
see also Cajun Tubing Testors, Inc. v. Hargrave, 951 F.2d 72, 74-76
(5th Cir. 1992).
Contrary to Newport News’ argument, compliance with § 908(f)(3)
does not result in a bifurcated review process. Newport News’ reli-
ance on Universal Maritime Corp. v. Moore, 126 F.3d 256 (4th Cir.
1997), is misplaced. In Moore, we observed that, in general, § 908(f)
did not provide for a procedure in which an employer had its liability
determined in one proceeding and its claim for § 908(f) relief
addressed in a separate proceeding. See Moore, 126 F.3d 256, 268
(4th Cir. 1997). This two step procedure could only occur if the
exception to the requirement that the employer file its § 908(f) claim
prior to the Director’s consideration of the claim applied, that is:
when the employer could not reasonably anticipate the liability of the
special fund at that time. Moore, 126 F.3d at 256; see 33 U.S.C.
§ 908(f)(3). No such division of findings was contemplated in this
case. Indeed, Moore held that the employer had "forfeited its § 81(f)
claim" by its failure to timely raise the issue. 126 F.3d at 268.
Newport News’ argument that its submission of its request for
§ 908(f) relief to the ALJ was timely because the Director did not set
a deadline for submission under 20 C.F.R. § 702.321(b)(3) is without
merit. Section 702.321(b)(2) allows the Director to establish a later
date for the employer to submit the documentation supporting a
request for relief. That provision does not apply here when Newport
News had not submitted a request to the Director. See 20 C.F.R.
§ 702.321(b)(2) (stating that the Director can set a different deadline
for submission of the documentation to support an application for
§ 908(f) relief "[a]t the request of the employer or insurance carrier.").
Likewise, we consider without merit Newport News’ argument that
its application for § 908(f) relief was not untimely because the Direc-
tor never considered the claim within the meaning of the Act. We
agree with the Board’s analysis of this issue. Newport News removed
the case from the Director before the Director could hold an informal
conference. Thus, Newport News is responsible for any lack of con-
NEWPORT NEWS SHIPBUILDING v. FIRTH 9
sideration the claim received from the Director and cannot now use
its own actions to avoid the unambiguous procedural requirements of
§ 908(f)(3).
The petition for review is accordingly
DENIED.