BRB No. 99-0291
ANNE R. HUNTER )
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Claimant-Respondent )
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v. )
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ARMY TIMES PUBLISHING ) DATE ISSUED: _____________
COMPANY )
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and )
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TRAVELERS PROPERTY CASUALTY )
CORPORATION )
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Employer/Carrier- )
Petitioners )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT OF )
LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Supplementary Compensation Order Awarding 20 Percent
Additional Compensation Pursuant to Section 14(f) of Charles L. Green,
District Director, United States Department of Labor.
James A. Cole, Greenbelt, Maryland, for claimant.
Patricia T. Hagerty (Law Offices of Roger S. Mackey), Chantilly,
Virginia, for employer/carrier.
Joshua T. Gillelan, II (Henry L. Solano, Solicitor of Labor; Carol A.
DeDeo, Associate Solicitor), Washington, D.C., for the Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Supplementary Compensation Order Awarding 20 Percent
Additional Compensation Pursuant to Section 14(f) of District Director Charles L.
Green rendered on a claim filed pursuant to the provisions of the Longshore and
Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(1982) (the Act), as extended by the District of Columbia Workmen's
Compensation Act, 36 D.C. Code §501 et seq. (1973) (the D.C. Act). The
determinations of the district director must be affirmed unless they are shown by
the challenging party to be arbitrary, capricious, an abuse of discretion or
contrary to law. See, e.g., Sans v. Todd Shipyards Corp., 19 BRBS 24
(1986).
Claimant was injured in a work-related incident in 1978. Employer voluntarily
paid continuing temporary total disability compensation. 33 U.S.C. §908(b).
On April 21, 1998, the district director issued a "Compensation Order Award of
Permanent Total Disability Benefits" embodying the parties' agreement that claimant
became permanently totally disabled as of July 4, 1982. This Order states that
claimant will receive annual cost-of-living adjustments each October 1, beginning
October 1, 1982, see 33 U.S.C. §910(f) (1982), and also that
claimant's permanent total disability benefits are computed in accordance with the
decision in Holliday v. Todd Shipyards Corp., 654 F.2d 415, 13 BRBS
741 (5th Cir. 1981).[1] Employer did not
appeal this decision.
In August 1998, apparently as a result of an inquiry, the district
director's office sent carrier a chart detailing the payments due claimant,
calculated pursuant to Holliday. Thereafter, employer filed a
petition for modification, based on the Board's decision in Bailey v.
Pepperidge Farm, Inc., 32 BRBS 76 (1998), in which the Board held that
Holliday was no longer controlling authority in cases arising under
the D.C. Act. See n. 1, supra. By letter dated November 2,
1998, the district director denied employer's motion for modification, stating
that a change in law is not a basis for modifying an existing award. Also
on November 2, 1998, the district director issued a Supplementary Compensation
Order, finding employer in arrears in its payments to claimant due to its
failure to apply Holliday and therefore liable for a 20 percent
penalty pursuant to Section 14(f) of the Act, 33 U.S.C. §914(f).
Employer filed a timely appeal to the Board.[2]
On appeal, employer contends that its appeal should be construed as a timely
appeal of the district director's April 21, 1998 Order, and that the Board should
reverse the district director's application of Holliday in calculating
claimant's benefits. Employer further contends that since Holliday
is inapplicable, there is no basis for the Section 14(f) penalty imposed by the
district director. Claimant responds, urging rejection of employer's contentions.
The Director, Office of Workers' Compensation Programs, also responds, contending
that employer failed to challenge the applicability of Holliday by way of
a timely appeal to the Board, and that the facts herein are materially
distinguishable from those in Bailey. The Director thus contends that the
district director's assessment of a Section 14(f) penalty should be affirmed.[3]
We reject employer's contention that its appeal should be construed as timely
as to the district director's April 21, 1998, Order. Employer did not file any
documents that could be construed as an appeal of that order within 30 days of its
filing. See 33 U.S.C. §§919(e), 921(a), (b); 20 C.F.R.
§§702.350, 802.205. Moreover, we reject employer's contention
that the district director's April 21, 1998, order was "unclear," or made
"obscure" references to the Holliday decision such that it was unable to
appeal the applicability of Holliday until after the issuance of the
November 1998 order. In this regard, it is useful to contrast the factual
situation in Bailey, 32 BRBS at 76, with that presented in the instant case.
In Bailey, the employer had voluntarily paid the claimant temporary
total disability benefits since 1982, and paid the claimant permanent total
disability benefits in accordance with an administrative law judge's 1992
award. In 1996, a dispute arose between the employer and the district
director concerning Section 10(f) adjustments. After various correspondence
over the next year, the district director ultimately issued an order holding
employer liable for a Section 14(f) penalty for failure to pay claimant at
a rate inclusive of Section 10(f) adjustments calculated pursuant to
Holliday. Employer timely appealed this order to the Board. The
Board held that due process required that it address the Section 10(f) issue
raised by employer as employer's appeal presented its first opportunity to
challenge the computation of the cost-of-living adjustment pursuant to
Holliday. Bailey, 32 BRBS at 77.[4] The administrative law judge had not ordered that Section
10(f) adjustments be calculated pursuant to Holliday, and the
district director had not issued any prior orders addressing the issue.
The Board therefore addressed the merits of employer's argument concerning
the continued validity of Holliday in cases arising under the D.C.
Act. See n.1, supra.
In the instant case, however, the district director's April 1998 order
was more than sufficient to put employer on notice that it was being held
liable for Section 10(f) adjustments calculated pursuant to Holliday.
The district director's order contains the following two statements: "The
employer/carrier will now convert the claimant's temporary total disability
benefits to permanent total disability benefits in accordance with the
Holliday decision," and "The claimant's permanent total disability benefits
were computed in accordance with the Holliday Decision." These statements
are not "obscure" or "unclear" references that "tricked" employer, as they
plainly set out the district director's method of calculating employer's
liability. Moreover, the district director ordered employer to pay at a
rate of $188 per week commencing from the July 4, 1982, date of permanency,
despite the parties' agreement that claimant's compensation rate was $140
per week. This fact, along with the references to Holliday, should
have alerted employer that the district director was incorporating into the
compensation rate Section 10(f) adjustments that occurred during claimant's
period of temporary total disability.
Thus, we are unpersuaded that employer's first opportunity to challenge
the district director's calculation of Section 10(f) adjustments occurred
after the issuance of the award of a Section 14(f) penalty. Unlike the
situation in Bailey, the district director in the instant case issued
an order setting forth a compensation rate inclusive of Section 10(f)
adjustments calculated pursuant to Holliday prior to the time
employer was held liable for a Section 14(f) penalty. This order was not
so unclear as to absolve employer of the consequences of the failure to file
a timely appeal of that order. That employer was represented by its
carrier's claims examiner rather than by an attorney during these
proceedings cannot overcome the jurisdictional requirement that an appeal
be filed within 30 days of an order's filing. See, e.g., Bolling
v. Director, OWCP, 823 F.2d 165 (6th Cir. 1987); Porter v.
Kwajalein Services, Inc., 31 BRBS 112 (1997), aff'd on recon.,
32 BRBS56 (1998), aff'd mem., 176 F.3d 484 (9th Cir. 1999) (table),
cert. denied, 120 S.Ct. 593 (1999) (pro se claimants'
failure to file a timely appeal). As employer failed to file a timely
appeal of the April 28, 1998, order, we decline to overturn the district
director's computation of the Section 10(f) adjustments.[5] Moreover, as employer's challenge to the
award of a Section 14(f) penalty rests solely on its contention that the
compensation rate was calculated erroneously pursuant to Holliday,
we similarly decline to address this issue.[6]
Accordingly, the district director's Supplementary Compensation Order
Awarding 20 Percent Additional Compensation Pursuant to Section 14(f) is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) 1In fact, the district director's Order referred only
to "Holliday," without a citation. See discussion,
infra. In Holliday, the United States Court of Appeals for
the Fifth Circuit held that, upon becoming permanently totally disabled, a
claimant is entitled to cost-of-living adjustments at a rate inclusive of
adjustments that occurred during previous periods of temporary total
disability. The United States Court of Appeals for the District of Columbia
Circuit held in Brandt v. Stidham Tire Co., 785 F.2d 329, 18 BRBS
73(CRT) (D.C. Cir. 1986), that it would follow Holliday until such
time as it was overruled by the Fifth Circuit. In Phillips v. Marine
Concrete Structures, Inc., 895 F.2d 1033, 23 BRBS 36(CRT) (5th Cir.
1990) (en banc), the Fifth Circuit overruled Holliday, as
contrary to the plain language of Section 10(f), 33 U.S.C. §910(f),
which states it applies only to awards for permanent total disability or
death. Based on the caveat in Brandt, the Board held in
Bailey v. Pepperidge Farm, Inc., 32 BRBS 76, 79 (1998), that
Holliday was no longer controlling authority in cases arising under
the D.C. Act.
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2) 2By Order dated December 23, 1998, the Board dismissed
employer's appeal as untimely filed. Upon employer's motion for
reconsideration, the Board reinstated employer's appeal on February 19,
1999, noting that employer timely filed an appeal with the district
director's office. 20 C.F.R. §802.207(a)(2).
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3) 3By Order dated February 8, 2000, the Board accepted
the Director's response brief, which was filed out of time, as part of the
record before the Board. 20 C.F.R. §802.217. Claimant and employer
were given 20 days from receipt of the Board's Order in which to respond. Employer has filed a timely
reply brief, which is accepted as part of the record before the Board.
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4) 4The Board noted that employer had paid the Section
14(f) penalty. 32 BRBS at 77 n.2. See Sea-Land Service, Inc. v.
Barry, 41 F.3d 903, 29 BRBS 1 (CRT) (3d Cir. 1994); Providence
Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381, 17 BRBS
135(CRT) (9th Cir. 1985); Tidelands Marine Service v.
Patterson, 719 F.2d 126, 16 BRBS 10 (CRT) (5th Cir. 1983).
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5) 5Thus, we need not address employer's contention that
the time for appeal can be extended based on equitable considerations, as
none are present in the instant case. But see INA v. Gee, 702
F.2d 411, 15 BRBS 107(CRT) (2d Cir. 1983). We note, moreover, that at the
time the district director entered the April 28,1998, order, the Board had
not yet issued Bailey. Without having timely appealed the district
director's order, employer's attempt to characterize the district director's
action as "legal error" and as applying a method of calculating Section
10(f) adjustments that had been "overruled" is disingenuous.
Finally, we observe that employer does not challenge the district director's
denial of its motion for modification based on an alleged mistake in fact;
we decline to address any issues in this regard. See Plappert v. Marine
Corps Exchange, 31 BRBS 109 (1997), aff'g on recon. en banc 31
BRBS 13 (1997); 20 C.F.R. §802.211(b); see also Ryan v. Lane & Co.,
28 BRBS 132 (1994) (once an award has become final, a party cannot invoke
Section 22 to reopen a case based on a change in law concerning Section
10(f)).
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6) 6We note that the file does not contain evidence that
employer paid the Section 14(f) penalty. Without such a demonstration, and
absent circumstances such as those presented in Bailey, the Board
does not have jurisdiction over an appeal of a Section 14(f) award. See
Sea-Land Service, Inc. v. Barry, 41 F.3d 903, 29 BRBS 1 (CRT) (3d Cir.
1994); Providence Washington Ins. Co. v. Director, OWCP, 765
F.2d 1381, 17 BRBS 135(CRT) (9th Cir. 1985); Tidelands Marine
Service v. Patterson, 719 F.2d 126, 16 BRBS 10 (CRT) (5th Cir.
1983).
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NOTE: This is an UNPUBLISHED LHCA Document.
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