Newport News Shipbuilding & Dry Dock Co. v. Gillus

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND 
DRY DOCK COMPANY,
Petitioner,
v.
BOBBIE G. GILLUS; DIRECTOR,  No. 03-1989
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(02-637)
Submitted: December 17, 2003
Decided: January 5, 2004
Before WILKINSON and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin M. Mason, MASON, MASON, WALKER & HEDRICK,
P.C., Newport News, Virginia, for Petitioner. Gregory E. Camden,
MONTAGNA, BREIT, KLEIN & CAMDEN, L.L.P., Norfolk, Vir-
ginia, for Respondents.
2 NEWPORT NEWS SHIPBUILDING v. GILLUS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Newport News Shipbuilding and Dry Dock (NNS) appeals the
decision of the Benefits Review Board (Board) affirming the United
States Department of Labor’s administrative law judge’s (ALJ) award
of de minimis and temporary total disability benefits to Bobbie G.
Gillus.
We review the Board’s decisions for errors of law and to ascertain
whether the Board adhered to its statutorily mandated standard for
reviewing the ALJ’s factual findings. Gilchrist v. Newport News Ship-
building & Dry Dock Co., 135 F.3d 915, 918 (4th Cir. 1998). The fac-
tual findings of the ALJ must be affirmed if supported by substantial
evidence. 33 U.S.C. § 921(b)(3) (2000). Review of legal questions is
de novo, and no deference is due to the Board’s legal conclusions.
Gilchrist, 135 F.3d at 918.
An employee covered by the Longshore and Harbor Workers Com-
pensation Act (LHWCA), 33 U.S.C. §§ 901-950 (2000), is entitled to
compensation for a disability resulting from a work-related injury sus-
tained on the navigable waters of the United States. See 33 U.S.C.
§ 903(a) (2000). "Disability," the Supreme Court has held, "is a mea-
sure of earning capacity lost as a result of work-related injury."
Metro. Stevedore Co. v. Rambo ("Rambo II"), 521 U.S. 121, 127
(1997). Compensation is authorized not for the physical injury itself
but for the economic harm arising out of the worker’s diminished
wage-earning capacity. See id. The character of the disability deter-
mines the method of compensation. Potomac Elec. Power Co. v.
Director, Office of Workers’ Compensation Programs, 449 U.S. 268,
272 (1980). For permanent partial injuries to specific body parts cov-
ered by § 908(c)(1)-(20) of the Act ("the schedule"), awards are cal-
culated based on the schedule formula pertaining to the particular
injury, without regard to the economic effects of the injury. Gilchrist,
NEWPORT NEWS SHIPBUILDING v. GILLUS 3
135 F.3d at 918. However, "a worker is entitled to nominal compen-
sation when [her] work-related injury has not diminished [her] present
wage-earning capacity under current circumstances, but there is a sig-
nificant potential that the injury will cause diminished capacity under
future conditions." Rambo II, 521 U.S. at 138.
The LHWCA provides that a prior award of compensation may be
modified "on the ground of a change in conditions or because of a
mistake in a determination of fact." 33 U.S.C. § 922 (2000). The
review process may commence by application of any interested party.
See id. An application for modification must be made within one year
from the date of any denial or termination of benefits. See id.; Rambo
II, 521 U.S. at 129. "While a claimant’s application for modification
need not meet any particular form, there must be some basis for a rea-
sonable person to conclude that a modification request has been
made." I.T.O. Corp. v. Pettus, 73 F.3d 523, 527 (4th Cir. 1996). Sec-
tion "922’s requirement that review commence within one year is not
automatically fulfilled by just any communication from the claimant."
Id. Rather, the communication must show an intent to seek compensa-
tion for a "particular loss." Id.The Board did not err when it affirmed the ALJ’s award of de
minimis benefits to Gillus. Section 908(c) applies only to permanent
partial disabilities. Gillus has never been found to have a permanent
partial disability. Gillus’s previous awards were for temporary total
disability. NNS does not contest the Board’s conclusion that Gillus’s
injury is a temporary partial disability under 33 U.S.C. § 908(e). A
claimant’s future earning capacity may be considered when issuing an
award under § 908(e). See 33 U.S.C. § 908(h). Furthermore, NNS
waived its objection that it did not have notice of Gillus’s de minimis
claim by not raising this issue in its motion for reconsideration before
the ALJ.
Second, because Gillus’s claim for de minimis benefits was pend-
ing when she filed her temporary total disability claim, Gillus’s sec-
ond claim was timely. The Board therefore did not err when it
affirmed the ALJ’s compensation award for Gillus’s additional days
of temporary total disability.
Accordingly, we affirm the decision of the Benefits Review Board.
We dispense with oral argument because the facts and legal conten-
4 NEWPORT NEWS SHIPBUILDING v. GILLUS
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED