Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs , 474 F.3d 109 ( 2006 )


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  •                            PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    NEWPORT NEWS SHIPBUILDING AND         
    DRY DOCK COMPANY,
    Petitioner,
    v.
               No. 05-1495
    DIRECTOR, OFFICE OF WORKERS’
    COMPENSATION PROGRAMS; CLYDE
    MOODY,
    Respondents.
    
    NEWPORT NEWS SHIPBUILDING AND         
    DRY DOCK COMPANY,
    Petitioner,
    v.
               No. 05-2168
    DIRECTOR, OFFICE OF WORKERS’
    COMPENSATION PROGRAMS; CLYDE
    MOODY,
    Respondents.
    
    On Petitions for Review of Orders of
    the Benefits Review Board.
    (05-0424)
    Argued: September 19, 2006
    Decided: December 13, 2006
    Before MICHAEL and GREGORY, Circuit Judges,
    and Thomas E. JOHNSTON, United States District Judge for the
    Southern District of West Virginia, sitting by designation.
    2         NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
    Petitions denied by published opinion. Judge Michael wrote the opin-
    ion, in which Judge Gregory and Judge Johnston joined.
    COUNSEL
    ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER
    & HEDRICK, P.C., Newport News, Virginia, for Petitioner. Gregory
    Edward Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P., Nor-
    folk, Virginia, for Respondents. ON BRIEF: Charlene Parker Brown,
    MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for
    Respondent Clyde Moody.
    OPINION
    MICHAEL, Circuit Judge:
    Newport News Shipbuilding and Dry Dock Company (Newport
    News) petitions for review of orders issued under the Longshore and
    Harbor Workers’ Compensation Act (the Act) by the Benefits Review
    Board (BRB) of the United States Department of Labor. The BRB
    orders affirmed the decisions of an administrative law judge that (1)
    determined the medical cause of a knee ailment suffered by Clyde
    Moody, a Newport News employee; (2) ordered the company to pro-
    vide appropriate benefits; and (3) awarded Moody attorney’s fees
    under § 28 of the Act, 
    33 U.S.C. § 928
    . Because we reject Newport
    News’s arguments that the medical causation issue was not ripe and
    that attorney’s fees were not warranted, we deny the petitions for
    review.
    I.
    Moody has worked as a welder and mechanic for Newport News
    for over thirty years. His work requires a great deal of crawling and
    climbing. In February 1999, while on the job, Moody bumped and
    injured his left knee as he crawled to the bottom of a tank. He was
    treated at the shipyard clinic and placed on light duty "for awhile."
    J.A. 26. Moody did not claim compensation for this injury. On July
    NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP                  3
    5, 2001, he injured his right knee while crawling in a tank. As a result
    of this injury, he underwent arthroscopic surgery on October 3, 2001,
    and collected temporary total disability benefits until January 7, 2002.
    In May 2002, several months after returning to work, Moody reported
    pain in his left knee during an office visit with his orthopedic special-
    ist, Dr. Thomas Stiles, who ordered an MRI. The MRI revealed a
    meniscal tear in the left knee, and Dr. Stiles informed Moody on July
    8, 2002, that surgery was needed. Later that month Moody sought
    authorization for the procedure from Newport News. He maintained
    "that the left knee [condition was] a compensable consequence of his
    [July 5, 2001,] right knee injury." S.J.A. 3. Moody’s position was
    based on Dr. Stiles’s opinion that Moody’s "problem with his left
    knee . . . [was] a result of putting extra pressure and stress on his left
    knee following his right knee injury and surgery." J.A. 56. Newport
    News contested Moody’s right to compensation, claiming that the
    injury resulted from the February 1999 incident rather than from
    weakness of the right knee after July 2001. Moody engaged a lawyer
    and continued to pursue compensation under the 2001 claim. Newport
    News’s position regarding the date of the underlying injury was of
    concern to Moody because the company contended that any claim for
    disability benefits under the 1999 injury would be barred by the one-
    year statute of limitations in 
    33 U.S.C. § 913
    (a). (A claim for medical
    benefits would not be subject to a time bar, however. 
    33 U.S.C. § 907
    .)
    In October 2002 a claims examiner in the U.S. Department of
    Labor’s Office of Workers’ Compensation Programs (OWCP) held an
    informal conference with the parties to consider the issue of medical
    causation (or the date of the underlying injury). After reviewing medi-
    cal records, the claims examiner "recommend[ed] that [Moody’s]
    present left knee problems be accepted as a result of the July 5, 2001
    right knee injury." J.A. 110. In other words, the examiner recom-
    mended that compensation for the left knee ailment be paid under the
    earlier 2001 claim. Newport News rejected this recommendation. The
    company advised the OWCP’s district director in March 2003 that it
    would "pay for the left knee medical treatment under the 1999 left
    knee injury, but not under the 2001 right knee injury." J.A. 102. In
    the meantime, Newport News refused to pay bills submitted by Dr.
    Stiles for non-surgical treatment of Moody’s left knee condition. A
    company claims manager advised Dr. Stiles’s office that "this matter
    4          NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
    will be further litigated." J.A. 107. The company’s position forced
    Moody to request a hearing before an ALJ on the issue of medical
    causation concerning his left knee condition.
    Newport News argued before the ALJ that the causation issue was
    not ripe for adjudication because Moody had not suffered a disability
    resulting in lost time from work. The ALJ rejected this argument and
    found that "[t]he left knee impairment is a consequence of the work-
    related right knee injury." J.A. 149. The company was ordered "to
    provide appropriate benefits, as needed." 
    Id.
     The ALJ also awarded
    Moody attorney’s fees under 
    33 U.S.C. § 928
    (a). The BRB affirmed
    the ALJ’s decisions, but noted that Moody could not collect a fee
    award for obtaining compensation for temporary total disability until
    he underwent surgery and was temporarily disabled.
    Newport News petitions for review of the ripeness determination
    and the award of attorney’s fees. Both matters present legal questions
    that we review de novo. Va. Int’l Terminals, Inc. v. Edwards, 
    398 F.3d 313
    , 315 (4th Cir. 2005).
    II.
    Newport News argues that the medical causation issue was not ripe
    for adjudication by the agency because Moody was in essence making
    a claim for future disability benefits. The traditional ripeness doctrine,
    which derives in part from Article III limitations on judicial power,
    does not apply to administrative decisionmakers. Chavez v. Dir.,
    OWCP, 
    961 F.2d 1409
    , 1414 (9th Cir. 1992). Nevertheless, because
    "[a]dministrative adjudicators have an interest in avoiding many of
    the problems of prematurity and abstractness presented by unripe
    claims," these adjudicators need the leeway to "abstain[ ] on the basis
    of ripeness." 
    Id.
     (quotation marks and citation omitted). A separate
    ripeness analysis has not been developed for administrative decision-
    making. We therefore adopt Newport News’s suggestion and apply
    the traditional analysis, a practice routinely followed by federal courts
    in reviewing whether an issue was ripe for decision by an administra-
    tive tribunal. Id.; Ingalls Shipbldg., Inc. v. Dir., OWCP, 
    102 F.3d 1385
    , 1388 n.4 (5th Cir. 1996).
    Under the traditional analysis we determine whether an issue is ripe
    for resolution by evaluating the issue’s fitness for decision and "the
    NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP                 5
    hardship to the parties of withholding . . . consideration." Abbott Labs.
    v. Gardner, 
    387 U.S. 136
    , 149 (1967). Typically, an issue is fit for
    resolution if it is purely legal and does not depend on undeveloped
    facts. 
    Id.
     In assessing hardship, we examine the immediacy and
    degree of hardship the party seeking relief will suffer if adjudication
    is delayed. W. Va. Highlands Conservancy v. Babbitt, 
    161 F.3d 797
    ,
    801 (4th Cir. 1998).
    Newport News argues that there will be no disability until Moody
    submits to surgery and that the agency adjudicators "could not possi-
    bly decide the issue of [disability] causation ahead of time." Petr.’s
    Br. 12. Specifically, the company says that the factual predicate to
    determine medical causation did not "fully exist" when the ALJ and
    BRB decided the issue. 
    Id.
     We agree with Moody that all of the facts
    necessary to determine the cause of his left knee ailment were placed
    into evidence at the hearing conducted by the ALJ. The record
    included medical opinions from qualified orthopedic specialists as
    well as Moody’s pertinent medical records. This evidence addressed
    the issue of medical causation, and there is solid evidence to support
    the ALJ’s finding that Moody’s "left knee impairment is a conse-
    quence of the work-related right knee disability" caused by the 2001
    injury. J.A. 149. No subsequent facts would change the ALJ’s deter-
    mination of causation. The only unknown facts are the date Moody
    will undergo surgery and the duration of his resulting disability. Nei-
    ther of these facts will affect Newport News’s liability to pay appro-
    priate compensation benefits.
    The prospect of hardship to Moody supports the decision of the
    agency judges to determine the cause of his left knee ailment prior to
    surgery. The record at the time suggested that if the condition had
    been attributed to Moody’s 1999 left knee injury, the company would
    have asserted the statute of limitations as a defense against a request
    for disability compensation. The perceived risk of receiving no com-
    pensation if he was required to miss work during recuperation could
    have impacted Moody’s decision about whether to undergo surgery.
    The timely determination of medical causation afforded Moody the
    latitude to make this decision with certain knowledge of his compen-
    sation prospects during any period of temporary disability.
    For these reasons, the issue of medical causation was ripe for deter-
    mination by the agency adjudicators.
    6          NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
    III.
    Newport News also argues that the ALJ and BRB had no basis
    under the governing statute, 
    33 U.S.C. § 928
    , for requiring it to pay
    attorney’s fees in this case. Under § 928, attorney’s fees may be
    assessed against an employer in two circumstances. First, § 928(a)
    provides for a fee award when the employer refuses to pay any com-
    pensation after receiving written notice of a claim, and the claimant
    thereafter successfully prosecutes the claim with the assistance of a
    lawyer. Second, § 928(b) provides for a fee award when the employer
    initially pays compensation voluntarily, and a dispute later arises
    about whether the employee is entitled to additional compensation.
    We agree with Newport News that Moody is not entitled to attor-
    ney’s fees under § 928(a). This section authorizes a fee award only if
    "the employer . . . declines to pay any compensation on or before the
    thirtieth day after receiving written notice of a claim for compensation
    having been filed from the deputy commissioner . . . ." 
    33 U.S.C. § 928
    (a) (emphasis added). Moody’s left knee condition has been
    determined to derive from the July 5, 2001, injury to his right knee.
    He filed a claim for the 2001 injury, and Newport News voluntarily
    paid certain compensation for that injury. When "the employer ini-
    tially pays compensation voluntarily after the filing of a claim, but
    then refuses a [later] request for [additional] benefits on the same
    claim," § 928(a) does not allow the employee attorney’s fees for
    obtaining any additional benefits. Edwards, 
    398 F.3d at 317
    . Any
    compensation Moody receives as a result of the recent proceedings to
    determine causation would constitute additional compensation under
    his preexisting 2001 claim, and he must therefore look to § 928(b) to
    recover fees incurred in obtaining such additional compensation.
    Accordingly, Moody does not qualify for a fee award under § 928(a).
    We conclude that Moody is entitled to attorney’s fees under
    § 928(b). This section’s threshold requirement is met: Newport News
    "pa[id] . . . compensation without an award" under the 2001 claim,
    "and thereafter a controversy developed over the amount of additional
    compensation, if any, to which the employee [Moody] may be enti-
    tled" for his left knee ailment. 
    33 U.S.C. § 928
    (b). To qualify for a
    fee award under § 928(b), Moody must show that four additional
    events occurred: (1) "the deputy commissioner . . . set the matter for
    NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP                7
    an informal conference" with the parties; (2) the deputy commissioner
    "recommend[ed] in writing a disposition of the controversy;" (3) "the
    employer . . . refuse[d] to accept such written recommendation, within
    fourteen days after its receipt;" and (4) the employee used the services
    of a lawyer to obtain a greater award of compensation than the
    employer was willing to pay. 
    33 U.S.C. § 928
    (b). These four events
    have occurred.
    First, an OWCP claims examiner held an informal conference with
    the parties on October 8, 2002, to consider the issue of causation with
    respect to Moody’s left knee condition. Second, on October 31, 2002,
    the claims examiner recommended in writing that Moody’s "present
    left knee problems be accepted as a result of the July 5, 2001 right
    knee injury." J.A. 110. Third, Newport News did not accept this rec-
    ommendation within fourteen days of its receipt. Indeed, after receiv-
    ing the recommendation, Newport News refused to pay medical bills
    submitted by Dr. Stiles for his non-surgical treatment of Moody’s left
    knee. The company advised Dr. Stiles’s office that the matter would
    be "further litigated." J.A. 107. Later, the company informed the
    OWCP’s district director that it would "pay for the left knee medical
    treatment under the 1999 left knee injury, but not under the 2001 right
    knee injury." J.A. 102. The company thus maintained its initial posi-
    tion that the statute of limitations excused it from paying Moody any
    compensation for temporary total disability following surgery. Fourth,
    Moody used the services of a lawyer to obtain a greater award of
    compensation after Newport News did not tender any payment within
    the fourteen days it had to respond to the claims examiner’s recom-
    mendation. Moody’s lawyer requested that the medical causation
    issue be set for hearing before an ALJ. A hearing was necessary
    because Moody had no assurance about payment for his medical treat-
    ment or compensation for temporary total disability during recupera-
    tion from the recommended surgery. The ALJ found that Moody’s
    left knee condition was caused by the July 5, 2001, injury to his right
    knee and ordered Newport News "to provide appropriate benefits, as
    needed." J.A. 149. The BRB affirmed. The administrative orders
    assured Moody of payment for his medical expenses and disability
    compensation during recovery from surgery. These benefits amounted
    to a greater award than Moody was able to achieve prior to requesting
    a hearing. See Dir., OWCP v. Baca, 
    927 F.2d 1122
    , 1124 (10th Cir.
    8          NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
    1991) (an employee receives a "greater award" when he gains a
    greater economic benefit from the administrative litigation).
    Because Moody satisfies all of the requirements of § 928(b), he is
    entitled to an award of the attorney’s fees he incurred in litigating the
    medical causation issue. We agree with the BRB, however, that
    Moody may not collect a fee award with respect to compensation for
    temporary total disability until he undergoes surgery and is temporar-
    ily disabled. See Adkins v. Kentland Elkhorn Coal Corp., 
    109 F.3d 307
    , 308 (6th Cir. 1997).
    IV.
    For the foregoing reasons, we conclude that the medical causation
    issue was ripe for consideration when it was litigated before the ALJ
    and BRB. We also conclude that Moody was entitled to the award of
    attorney’s fees under 
    33 U.S.C. § 928
    (b) for additional compensation
    received under the 2001 claim. The petitions for review are therefore
    denied.
    PETITIONS DENIED