Norfolk Shipbuilding & Drydock Corp. v. Campbell ( 2003 )

OPINION ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NORFOLK SHIPBUILDING & DRYDOCK 
CORPORATION,
Petitioner,
v.
TERRY CAMPBELL; DIRECTOR,  No. 02-1701
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(No. 94-822)
Submitted: February 26, 2003
Decided: March 11, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Gerard W. Voyer, Christopher J. Wiemken, TAYLOR & WALKER,
P.C., Norfolk, Virginia, for Petitioner. Robert J. Macbeth, Jr., RUT-
TER, WALSH, MILLS & RUTTER, L.L.P., Norfolk, Virginia, for
Respondents.
2 NORFOLK SHIPBUILDING & DRYDOCK v. CAMPBELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Norfolk Shipbuilding and Drydock Corporation ("Norshipco") peti-
tioned for review of various orders of the Department of Labor’s Ben-
efits Review Board ("BRB"). This court dismissed the appeal as
interlocutory, pursuant to Elliot Coal Mining Co. v. Director, OWCP,
956 F.2d 448 (3d Cir. 1992). Norshipco now petitions for panel
rehearing or rehearing en banc, arguing that its timely filed docketing
statement and formal brief should be considered the functional equiv-
alents of a petition for review. We grant the petition for panel rehear-
ing and, upon a review of the merits, affirm the award of benefits to
Terry Campbell, finding no error in the BRB’s reasoning.1
After Campbell injured his head, neck, and back while working for
Norshipco in 1987, he continued to work, receiving differing amounts
of disability compensation from May 1987 to January 1993. Nor-
shipco terminated his employment in 1993 for excessive absenteeism.
Campbell then filed a claim for temporary total disability under the
Longshore and Harbor Workers’ Compensation Act ("LHWCA").
After a hearing in 1994, the Administrative Law Judge ("ALJ")
found that (1) Campbell was not fired in retaliation for filing a dis-
ability claim, (2) suitable alternate employment existed despite Camp-
bell’s limitations, and (3) Campbell was fired from the suitable
alternate employment for willful misconduct. In 1995, Campbell filed
a request for modification alleging a change in condition and a mis-
take in fact regarding his ability to perform the alternate employment
offered by Norshipco. He sought an award of permanent total disabil-
ity benefits.
1
Because we grant panel rehearing, we deny the petition for rehearing
en banc as moot.
NORFOLK SHIPBUILDING & DRYDOCK v. CAMPBELL 3
After a second hearing in 1996, the ALJ denied Campbell’s
motion, finding that there had been no change in condition and no
mistake in fact. Campbell appealed, and on June 17, 1998, the BRB
affirmed the ALJ’s determination that there had been no change in
condition. However, the Board remanded for further consideration of
Campbell’s ability to perform the light-duty work offered by Nor-
shipco.
In 1999, the ALJ ruled that the light-duty work offered by Nor-
shipco was outside Campbell’s restrictions and was, therefore, not
suitable alternate employment. Thus, the ALJ awarded permanent
partial disability benefits. Following this order came several years of
further litigation, including two appeals to the BRB on which Nor-
shipco was successful. The ALJ entered his final order, awarding lim-
ited benefits to Campbell on April 26, 2002. Norshipco then filed a
notice of appeal to the BRB, seeking a final order so that it could file
a petition for review with this court of the BRB’s June 17, 1998 deci-
sion. The BRB affirmed the ALJ’s April 26, 2002 order and affirmed
its prior orders in a final decision filed July 2, 2002. Norshipco timely
filed for review in this court.2
Norshipco first argues that the ALJ erred in considering Camp-
bell’s modification motion, since it was based on a legal, rather than
a factual, contention. Norshipco further contends that the BRB erred
in reviewing the ALJ’s decision on the merits rather than merely
determining that the ALJ had exceeded its jurisdiction in reconsider-
ing a legal issue.
Section 22 of the LHWCA provides that a compensation decision
may be modified, within certain time constraints, based on a change
of condition or a mistake of fact. 33 U.S.C. § 922 (2000). This modi-
fication procedure is extraordinarily broad, especially insofar as it
permits the correction of mistaken factual findings. Betty B Coal Co.
v. Director, OWCP, 194 F.3d 491, 497 (4th Cir. 1999). Any mistake
of fact may be corrected whenever justice requires, whether based on
2
We construe Norshipco’s docketing statement and brief, filed within
sixty days after the BRB’s final decision, as a timely petition for review.
Cf. Hartsell v. Duplex Products, Inc., 123 F.3d 766, 771 (4th Cir. 1997).
4 NORFOLK SHIPBUILDING & DRYDOCK v. CAMPBELL
wholly new evidence, cumulative evidence, or merely further reflec-
tion on the evidence initially submitted. Id.Campbell moved for modification based on an allegedly mistaken
finding as to the extent of his disability. His claim was based on medi-
cal reports which were already in the record, as well as medical
reports created after the ALJ’s initial decision. This claim of mistake
is clearly of a factual nature—there was disagreement as to the inter-
pretation of the medical evidence. Thus, it was properly raised and
reviewed on appeal in a Section 22 proceeding.
Norshipco next contends that the BRB’s decision vacating the
ALJ’s order denying the motion for modification improperly
reweighed the evidence rather than giving proper deference to the
ALJ’s findings. See Director, OWCP v. Quarto Mining Co., 901 F.2d
532, 536 (6th Cir. 1990) (noting that BRB reviews ALJ’s decision to
determine whether it is supported by substantial evidence and consis-
tent with applicable law). In denying modification, the ALJ deter-
mined that Dr. Suter, Campbell’s treating physician, gave inconsistent
testimony. According to the ALJ, on the one hand, Dr. Suter sug-
gested at times that Campbell was capable of working light duty, part
time work and, at other times, Dr. Suter concluded that Campbell was
totally disabled. In addition, Dr. Suter stated that Campbell’s condi-
tion had not changed since Dr. Suter began treating him. Based on
these findings, the ALJ concluded that Campbell was only partially
disabled and that he was capable of performing the light duty, part-
time work offered by Norshipco.
On appeal, the BRB held that the ALJ erred in finding that Dr.
Suter’s opinion was inconsistent. Instead, the BRB found that Dr.
Suter’s changing opinions reflected the progression of Campbell’s con-
dition.3 The BRB also found that the ALJ failed to consider Dr. Dvo-
3
While Dr. Suter originally determined that Campbell was able to work
in a part time, light duty position, Campbell reported that the necessity
of pain medication and its effects made regular work more difficult than
Dr. Suter thought. Thus, Dr. Suter came to the conclusion that, although
Campbell could conceivably work on certain days, his condition and
medication rendered regular employment untenable. Thus, Dr. Suter’s
opinion was not inconsistent—Campbell’s condition had not changed,
rather Dr. Suter revised his opinion based on Campbell’s unsatisfactory
attempts to continue to work.
NORFOLK SHIPBUILDING & DRYDOCK v. CAMPBELL 5
rak’s opinion, which was supportive of Dr. Suter’s conclusions
regarding the extent of Campbell’s disability.
We hold that the BRB properly vacated the ALJ’s decision because
the ALJ failed to consider all the evidence of record and because the
ALJ’s determination that Dr. Suter’s opinion was contradictory was
not supported by substantial evidence. Contrary to Norshipco’s asser-
tions, the BRB did not reweigh the evidence or substitute its view of
the facts for the view of the ALJ. Instead, the BRB remanded to the
ALJ for him, after consideration of the totality of the evidence, to ulti-
mately determine whether there was a mistake in fact in his original
opinion. The only thing required by the BRB was that the ALJ con-
sider all the evidence, including Dr. Suter’s 1996 deposition testi-
mony (rather than simply dismissing it as inconsistent) and the
opinion of Dr. Dvorak. As such, the BRB properly reviewed the
ALJ’s decision.
Norshipco next contends that the BRB improperly made findings
regarding the availability of suitable alternate employment in its 1998
review of the ALJ’s denial of Section 22 modification. However, a
review of the BRB’s decision shows that Norshipco is incorrect. The
BRB reviewed the ALJ’s initial 1994 decision—outlining Campbell’s
restrictions and the requirements of his post-injury job. However, the
BRB made no findings of error in this regard, nor was this order
before the BRB for review. Instead, the BRB, as discussed above,
found that the ALJ had not considered the full range of medical evi-
dence in the record on Campbell’s motion for modification, and thus,
the BRB remanded for a determination of whether, considering all the
medical evidence, Campbell could perform the light-duty position
offered by Norshipco. Since the BRB made no factual or legal find-
ings regarding the suitability of the alternate employment, it did not
exceed its authority in reviewing the ALJ’s determination.
Finally, Norshipco contends that Campbell’s brief on his appeal to
the BRB from the denial of his motion for modification was untimely
filed and should have been disregarded. However, Campbell filed a
motion to enlarge time, which was granted. Such an extension of time
is within the BRB’s discretion. 20 C.F.R. § 802.217(a) (2000). Nor-
shipco offers no reason to believe that the BRB abused its discretion.
6 NORFOLK SHIPBUILDING & DRYDOCK v. CAMPBELL
Based on the foregoing, we affirm the award of benefits to Camp-
bell. We dispense with oral argument, because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED