Stevens Shipping Co v. Kinlaw ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVENS SHIPPING COMPANY, 
Petitioner,
v.
FRANK KINLAW; DIRECTOR, OFFICE OF  No. 99-1954
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(98-1180)
Argued: April 5, 2000
Decided: December 8, 2000
Before LUTTIG and MICHAEL, Circuit Judges, and
Claude M. HILTON, Chief United States District Judge
for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion, in which Judge Luttig and Judge Michael joined.
COUNSEL
ARGUED: Bert Glenn Utsey, III, SINKLER & BOYD, P.A.,
Charleston, South Carolina, for Stevens Shipping. Laura Jessica
2 STEVENS SHIPPING CO. v. KINLAW
Stomski, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Director. Edward Paul Gibson,
RIESEN LAW FIRM, L.L.P., North Charleston, South Carolina, for
Kinlaw. ON BRIEF: Henry L. Solano, Solicitor of Labor, Carol A.
De Deo, Associate Solicitor for Employee Benefits, Samuel J. Oshin-
sky, Counsel for Longshore, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Direc-
tor.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HILTON, Chief District Judge:
Petitioner, Stevens Shipping Company, seeks review of a final
order of the Benefits Review Board ("BRB") affirming an award of
compensation to its former employee, Frank Kinlaw, under the Long-
shore and Harbor Workers Compensation Act ("LHWCA"), 33
U.S.C. § 901 et seq. Mr. Kinlaw was awarded benefits under the
LHWCA by Order of Adminstrative Law Judge ("ALJ") Vivian
Schreter-Murray on July 30, 1996. The ALJ subsequently denied Peti-
tioner’s motion for reconsideration by Order dated August 27, 1996,
and that Order was affirmed on appeal by the BRB on August 20,
1997.
Thereafter, pursuant to Section 22 of the LHWCA, 33 U.S.C.
§ 922, Petitioner filed a petition for modification with the ALJ. The
ALJ denied the Petition by Order on March 5, 1998, and on April 27,
1998, denied Petitioner’s petition for reconsideration and request for
formal hearing. Petitioner appealed to the BRB which affirmed those
Orders in a decision dated May 17, 1999. Petitioner now appeals that
decision.
I.
On August 1, 1993, Respondent Frank Kinlaw ("Kinlaw") sus-
tained a work-related injury to his back while employed by Petitioner,
STEVENS SHIPPING CO. v. KINLAW 3
Stevens Shipping Company ("Stevens Shipping"). It is undisputed
that Kinlaw suffered a "34% permanent impairment rating of the
spine," and that his ability to stand or sit for extended periods of time
was severely restricted. The primary issue disputed at the time of the
initial hearing involved the requirements of Kinlaw’s job and whether
Kinlaw was physically capable of returning to work or whether he
was rendered permanently partially disabled due to the injury.
In her initial Decision and Order, the ALJ found that Kinlaw was
unable to return to his pre-injury duties with Stevens Shipping as a
flagman/footman. She noted that Kinlaw’s treating physician, Dr.
Forrest, stated that, based on his understanding of the job’s require-
ments, the job was within Kinlaw’s physical capabilities. Based, how-
ever, on a description of Kinlaw’s former job duties prepared by
Stevens Shipping, on the testimony of Kinlaw, and on Stevens Ship-
ping’s safety man, Mr. LeBlanc, the ALJ found that Dr. Forrest’s
understanding of the requirements of Kinlaw’s job was faulty. She
determined that Kinlaw’s pre-injury job required standing most of the
time, and that the opportunity to sit or stand was dictated by the work
being performed. Accordingly, the ALJ discredited Dr. Forrest’s testi-
mony and found that Kinlaw was entitled to permanent partial disabil-
ity compensation commencing March 14, 1994.
Following an unsuccessful appeal of that decision to the BRB, Ste-
vens Shipping, on January 23, 1998, sought to terminate Kinlaw’s
permanent partial disability pursuant to a motion for modification
under Section 22 of the LHWCA. In its petition for modification, Ste-
vens Shipping attached a letter dated November 5, 1997, written by
its counsel, posing several questions to Dr. Forrest. In the letter, Dr.
Forrest stated that following the initial hearing on Kinlaw’s disability,
he personally observed footmen and flagmen at the Port of Charleston
for about one hour, and he reviewed a video tape of those jobs. Based
on those observations, Dr. Forrest reiterated his earlier opinion that
Kinlaw’s injury did not preclude his return to his former employment.
Stevens Shipping argued in its motion for modification that Dr. For-
est’s further observations constituted new evidence that rendered the
ALJ’s determination of benefits erroneous and based on a mistake of
fact. The ALJ summarily denied Stevens Shipping’s request for a
hearing and denied its motion for modification. In doing so, the ALJ
found that the "new evidence" of Dr. Forrest’s observations was read-
4 STEVENS SHIPPING CO. v. KINLAW
ily available to Stevens Shipping at the initial hearing, and that his lat-
est testimony was still unpersuasive in light of the other evidence
previously presented. On appeal to the BRB, Stevens Shipping made
two contentions: 1) the ALJ erred under Section 22 of the LHWCA
by not holding a formal evidentiary hearing to consider the merits of
Petitioner’s mistake of fact claim; and 2) the ALJ violated the Admin-
istrative Procedure Act, 5 U.S.C. § 557, by considering Dr. Forrest’s
opinion without formally admitting it in the record.
On the first basis for appeal, the BRB found that the ALJ’s deci-
sion constituted a rational exercise of her discretionary authority and
that there was no reversible error in her determination that Petitioner
should have anticipated the need to develop Dr. Forrest’s opinion
more fully at the time of the initial proceeding. With respect to Ste-
vens Shipping’s argument under the APA, the BRB found that Peti-
tioner’s claim was "technically correct," but found that the error was
harmless. Petitioner now challenges those holdings.
II.
Section 22 of the LHWCA provides, in pertinent part:
Upon his own initiative, or upon the application of any party
in interest on the ground of a change in conditions or
because of a mistake in a determination of fact by the dep-
uty commissioner [the ALJ], the deputy commissioner may,
at any time prior to one year after the date of the last pay-
ment of compensation . . . review a compensation case in
accordance with the procedure prescribed in respect of
claims in Section 19. . . .
33 U.S.C. § 922. Section 19 states:
The deputy commissioner shall make or cause to be made
such investigations as he considers necessary in respect of
the claim, and upon application of any interested parties
shall order a hearing thereon.
33 U.S.C. § 919(c). Petitioner asserts that Dr. Forest’s visit to the
work site to view Respondent’s job duties firsthand qualifies as new
STEVENS SHIPPING CO. v. KINLAW 5
evidence sufficient to render the ALJ’s initial determination a mistake
of fact entitling Petitioner to an evidentiary hearing. Petitioner, along
with co-respondent, the Director of the Office of Workers’ Compen-
sation Programs ("the Director"), cites Banks v. Chicago Grain Trim-
mers Ass’n, 390 U.S. 459 (1968), and O’Keeffe v. Aerojet-General
Shipyards, Inc., 404 U.S. 254 (1971), for the proposition that the ALJ
has broad discretion to reopen cases under Section 22 "to correct mis-
takes of fact, whether demonstrated by wholly new evidence, cumula-
tive evidence, or merely further reflection on the evidence initially
submitted." O’Keeffe, 404 U.S. at 255-56. Indeed, unlike other areas
of law in which finality of judgment is given great weight, Section 22
grants the ALJ enormous discretion to "simply rethink a prior finding
of fact." Jesse v. Director, OWCP, 5 F.3d 723, 725 (4th Cir. 1993).
As we stated in Jesse, "the principle of finality just does not apply to
Longshore Act . . . claims as it does in ordinary lawsuits." Id. Yet,
while Petitioner places great emphasis in its brief on the broad discre-
tion afforded to the ALJ in deciding upon modification petitions, Peti-
tioner does not cite a single authority in which the ALJ was required
to exercise that discretion. Banks and O’Keeffe may support the argu-
ment that in this case the ALJ could have reconsidered her initial
decision and ordered an evidentiary hearing. They do not, however,
support the claim that she must do so. See Banks, 390 U.S. at 464("The purpose of [Section 22] was to ‘broaden the grounds on which
a deputy commissioner can modify an award’ by allowing modifica-
tion where a ‘mistake in determination of fact makes such modifica-
tion desirable in order to render justice under the act.’" (emphasis
added) (citation omitted)); O’Keeffe, 404 U.S. at 255 ("[Section 22]
permits a reopening within one year ‘because of a mistake in a deter-
mination of fact.’" (emphasis added) (citation omitted)). Both Banks
and O’Keeffe involved challenges to an ALJ’s decision to grant a peti-
tion for modification, and in both cases the ALJ’s decision to reopen
the case was upheld. Similarly, in Jesse, we simply ruled that the ALJ
had the authority to consider a modification request, not that he was
required to do so.
If a claimant avers generally that the ALJ improperly found
the ultimate fact and thus erroneously denied the claim, the
deputy commissioner (including his ALJ incarnation) has
the authority, without more, to modify the denial of benefits.
6 STEVENS SHIPPING CO. v. KINLAW
We suspect that such uncompelled changes of mind will
happen seldom, if at all, but the power is undeniably there.
Jesse, 5 F.3d at 726. The language of the cases with respect to the
ALJ’s decision is clearly permissive and not mandatory.
Given the ALJ’s discretionary authority, we review the denial of a
modification hearing for abuse of discretion. Betty B Coal Co. v.
Director, OWCP, 194 F.3d 491, 500 (4th Cir. 1999) (noting that "we
would not hesitate to correct abuses" of an ALJ’s discretion not to
reopen a case). The ALJ should grant a request for an evidentiary
hearing under Section 22 where doing so would "promote justice." Id.Hearings, however, are not required when the petitioner merely
attempts to get a second chance at presenting evidence available in
the first hearing. See McCord v. Cephas, 532 F.2d 1377, 1380 (D.C.
Cir. 1976) (discussing the danger of Section 22 operating as "a back
door route to re-trying a case") (citation omitted).
Under the circumstances of this case, we cannot conclude that the
ALJ abused her discretion in finding that justice would not be pro-
moted by another evidentiary hearing. Stevens Shipping has not come
forward with new evidence that would mandate additional review of
Kinlaw’s original claim. Instead, Petitioner has attempted to reopen
this case based upon a further bolstering of its own witness’ prior tes-
timony. In the initial hearing, Dr. Forrest testified that based on his
understanding of Kinlaw’s job duties, Kinlaw was not precluded from
returning to work. The ALJ discounted that testimony in light of other
testimony and evidence presented. Dr. Forrest then visited Kinlaw’s
work place and viewed a video tape of Kinlaw’s duties, whereupon
Stevens Shipping moved for a modification hearing in order to pres-
ent Dr. Forrest’s continuing opinion that Kinlaw was not precluded
from returning to work.
As the ALJ properly noted in her decision, Dr. Forrest’s belated
visit to Respondent’s work site amounts to nothing more than prejudi-
cial, "post decisional discovery" which was readily available to Peti-
tioner at the time of the initial hearing. Moreover, the ALJ used a
variety of sources in the initial hearing, including Petitioner’s own
safety employee and its own written job description, in determining
the demands of Respondent’s job duties. Dr. Forrest has not stated a
STEVENS SHIPPING CO. v. KINLAW 7
new or different opinion regarding Kinlaw’s medical condition;
instead, he has reiterated a view about Kinlaw’s duties that is contra-
dicted by evidence that is seemingly more reliable with respect to that
issue. Such circumstances do not warrant a mandatory modification
hearing in order to render justice as required by Section 22.
III.
With respect to Petitioner’s claim under the APA, that the ALJ
erred by considering Dr. Forrest’s opinion without formally admitting
it into the record, we agree with the BRB that the mistake was harm-
less. The ALJ’s failure to formally admit additional testimony avail-
able to counsel at the initial hearing could not have affected the ALJ’s
final conclusion that the evidence should have been admitted at that
initial hearing.
For these reasons we find that the ALJ did not abuse her discretion
or commit reversible error, and the decision of the BRB is hereby
affirmed.
AFFIRMED