Newport News Shipbld v. Gregory

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
v.
No. 99-2356
DAVID L. GREGORY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(99-113)
Submitted: March 31, 2000
Decided: April 24, 2000
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James M. Mesnard, SEYFARTH, SHAW, FAIRWEATHER & GER-
ALDSON, Washington, D.C., for Petitioner. Robert J. Macbeth, Jr.,
RUTTER, WALSH, MILLS & RUTTER, L.L.P., Norfolk, Virginia,
for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Newport News Shipbuilding & Dry Dock Company (Newport
News) petitions this court for review of the Department of Labor's
Benefits Review Board's decision affirming the administrative law
judge's order declining to reconsider its order awarding benefits in
favor of David L. Gregory in this case arising under the Longshore
and Harbor Workers' Compensation Act. See 33 U.S.C. §§ 901 to 950
(West 1986 & Supp. 1999). The scope of our review is limited to an
examination of the ALJ's ruling to determine if the ALJ's findings are
supported by substantial evidence, are rational, and are in accordance
with the law. See 33 U.S.C. § 921(b)(3) (1994); Gilchrist v. Newport
News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th Cir.
1998). Finding no error of this magnitude, we deny this petition for
review.
Newport News sought reconsideration of the order awarding bene-
fits to Gregory because it alleged that it was unaware of the fact the
case had been assigned to a different ALJ on remand from this Court.
See Newport News Shipbuilding & Dry Dock Co. v. Gregory, No. 96-
2520 (4th Cir. June 6, 1997) (unpublished). The reassignment of the
case entitled Newport News to request a de novo hearing on the issue
of Gregory's disability in order to determine the credibility of the wit-
nesses. See Creasy v. J.W. Bateson Co., 14 B.R.B.S. 434 (1981);
Pigrenet v. Boland Marine & Mfg. Co., 656 F.2d 1091, 1095 (5th Cir.
Sept. 1981) (citing Appalachian Power Co. v. Federal Power Com-
mission, 328 F.2d 237 (4th Cir. 1964)). That entitlement, however,
can be waived where the party, despite receiving adequate notice of
a reassignment, does not object to resubmission of the case on the
existing record. See Pigrenet, 656 F.2d at 1095. After receiving no
objection to the letter order warning the parties that the case would
be decided on the record as it stood on remand, the replacement ALJ
issued her decision awarding benefits to Gregory. In seeking recon-
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sideration of that order, Newport News asserted that it never received
notice of the reassignment of the case despite the fact that notice was
served at the correct address to the attorney of record as shown in the
administrative file in the Administrative Law Judges' Office. The
ALJ declined to grant reconsideration on that ground.
After a review of the record and the ALJ's order denying reconsid-
eration, we can discern no reversible error on the part of the ALJ.
Newport News has failed to demonstrate how the ALJ's determina-
tion that notice delivered to the correct address was sufficient to warn
Newport News of the potential waiver of their right to a hearing ren-
dered her refusal to grant reconsideration contrary to the law. See 33
U.S.C. § 921(b)(3); Gilchrist, 135 F.3d at 918. In addition, Newport
News has waived its challenge to the award of benefits by failing to
raise the issue before the Benefits Review Board. See South Carolina
v. United States Dep't of Labor, 795 F.2d 375, 378 (4th Cir. 1986).
Accordingly, Newport News's petition for review is denied. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
PETITION DENIED
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