Judge's Benchbook:

Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic 22 - Modification


Contents of Main Volume | Contents of Supplement

DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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Description

Topic

Modification

22

  • Generally

22.1

  • Requesting Modification

22.3

    • Requesting Modification - Determining What Constitutes a Valid Request

22.3.1

    • Modification - Filing a Timely Request

22.3.2

    • Modification - DeMinimis Awards

22.3.3

    • Mistake of Fact

22.3.5

  • Attorney Fees--Mistake of Fact

22.5

TOPIC 22

 

Topic  22        Generally

 

Olsen v. Triple A Machine Shop, Inc ., (No. C01-3354 BZ (ADR)) (N. Dist. of CA.) (Dec. 14, 2001)(Unpublished) (Order Granting Defendant Triple A Machine Shop's Motion To Dismiss)(Final Judgment entered December 17, 2001).

 

            In Olsen , the Northern District of California ruled that it does not have jurisdiction over a LHWCA Modification Request. The district court, citing Thompson v. Potashnick Construction Co. , 812 F.2d 574 ( 9th Cir. 1987), noted that it only has jurisdiction to enforce orders in relation to LHWCA matters.


 

Topic  22.1     odification�Generally

 

Gulf Best Electric, Inc. v. Methe , ___ F.3d ___, (No. 03-60749) ( 5 th Cir. Nov. 1, 2004).  [ED. NOTE:   This case was changed from Unpublished status to Published on December 27, 2004. ]

 

            The Fifth Circuit found that it lacked jurisdiction to consider the claimant's claim that the Board erred in excluding employer contributions to his retirement and health insurance funds when calculating his average weekly wage (AWW).  It explained that the claimant had styled his petition a �Cross-Application to Enforce Benefits Review Board Order� but that, in substance, the petition was a simply a request that that the court reverse the Board's order, and thus allow inclusion of the employer's $3.47 per hour contributions to retirement and health insurance funds in calculation of AWW.  �Because the claimant raises this issue as an affirmative challenge to the BRB's decision rather than as a defense to his employer's appeal, his �cross-application� is properly characterized as a petition for review and, thus is time-barred by Section 921�.

 

            The Fifth Circuit further noted that the claimant contended that, because he has filed a petition for modification of the compensation award with DOL pursuant to Section 22, it would be a �waste of this court's time and resources� to dismiss his petition, only to have the claim eventually �work its way back through the system.�    The court noted that the claimant �cites no authority for the proposition that we may ignore the time requirements for appeal imposed by an agency's organic statute for the sake of equity or judicial efficiency� and therefore it dismissed the petition. 

 

            In this matter the court also affirmed the Board's decision that the date on which treatment actually ceased was the correct MMI date, noting that �[o]ne cannot say that a patient has reached the point at which no further medical improvement is possible until such treatment has been completed�even if, in retrospect, it turns out not to have been effective.�  Abbott v. La. Ins. Guaranty Assn ., 40 F.3d at 126 ( 5 th Cir. 1994).

 

            Finally, the court upheld the Board's application of Section 10(a) rather than 10(c) as the ALJ had found.  Noting that the claimant worked 47.4 weeks, or 237 days, or 91 percent of the workdays available in the year before his injury, the court stated that while it has not adopted a bright-line test for the applicability of Section 10(a) as the Ninth Circuit has (75 percent or more to be under Section 10(a)), �it is clear to us that [the claimant's] record of 91 percent satisfies the requirement of � 910(a) that the claimant have worked 'substantially the whole of the year immediately preceding the injury.  The court addressed the ALJ's concerns of the �fairness� of possible overcompensation as his rationale for applying Section 10(c) by noting its prior position in Ingalls Shipbuilding v. Wooley , 204 F.3d 616 ( 5 th Cir. 2000), that the calculation mandated by Section 10(a) aims at a theoretical approximation of what a claimant could ideally have expected to earn� had he worked every available work day in the year.  �Over-compensation alone does not usually justify applying � 910(c) when � 910(a) or (b) may be applied.�


Topic  22.1     odification-Generally

 

Seguro v. Universal Maritime Service Corp ., 36 BRBS 28 (2002).

 

            There is no provision under the LHWCA or the regulations for a "voluntary order" unless the parties agreement is embodied in a formal order issued by the district director or ALJ. Moreover, voluntary payments by an employer do not equate to a final order.

 

            In the original claim in the instant case, the parties stipulated to all issues, including permanent disability, with the exception of Section 8(f) Trust Fund relief. In the original Decision and Order, the ALJ noted the parties stipulations, but did not incorporate an award of benefits to the claimant into his order. He stated that the only disputed issue was Section 8(f) relief and he found that as the employer did not establish that the claimant's pre-existing permanent partial disability contributed to the claimant's total disability, Section 8(f) relief was denied. This Decision neither awarded nor denied benefits.

 

            Subsequently, the employer filed a Motion for Modification alleging that claimant had become capable of suitable alternate employment and the employer also filed a Motion for Partial Summary Decision, seeking a ruling that there was no final compensation award contained in the original Decision and Order. A second ALJ granted the partial Motion for Summary Decision, holding that there was no compensation award in place. The employer then stopped making payments. A third ALJ heard the employer's request for modification and found that there had been a "voluntary compensation order." Both the second and third ALJ decisions are the subject of this appeal.

 

            On appeal, the Board found that the original Decision did not constitute a final compensation order and thus, Section 22 was not applicable as the initial claim for benefits had never been the subject of a final formal compensation order prior to the adjudication by the third ALJ hearing the modification. Therefore, the claim before the third ALJ must be viewed as an initial claim for compensation.


Topic  22.1     odification-Generally

 

Ravalli v. Pasha Maritime Services , 36 BRBS 47 (2002).

 

            A modifying order terminating compensation based on a change in the claimant's physical and/or economic condition may be effective from the date of the change in condition. Having no Ninth Circuit precedent, the Board adopted the Second Circuit's position in Universal Maritime Service Corp. v. Spitalieri , 226 F.3d 167, 34 BRBS 85(CRT) ( 2d Cir. 2000), cert. denied , 121 S.Ct. 1732 (2001). The Board now finds it logical to hold that a termination of benefits is a "decrease" within the meaning of Section 22 in all circumstances, with the statutory caveat that a credit is available for a decrease where benefits are still owing. To the extent that the instant case is inconsistent with the Board's decision in Parks v. Metropolitan Stevedore Co ., 26 BRBS 172 (1993) ("the Act does not provide for retroactive termination."), it is overruled.


Topic  22.1     ModificationGenerally

 

Alexander v. Avondale Industries, Inc ., 36 BRBS 142 (2002).

 

            At issue here was whether a subsequent "claim" for temporary disability in conjunction with medical benefits/surgery was timely. Here the claimant's original claim for permanent disability compensation had been denied as the employer had established the availability of suitable alternate employment which the claimant could perform at wages equal to or greater than his AWW. Additionally it should be noted that the claimant was not awarded nominal benefits. Several years later when the claimant underwent disc surgery the employer denied a request for temporary total disability. The Board did not accept claimant's argument that Section 13 controlled as this was not a "new" claim. The Board then looked to Section 22 and found that while that section controlled, a modification request at this stage was untimely.


Topic  22.1     odification�Generally

 

Norfolk Shipbuilding & Drydock Corp. v. Campbell , (Unpublished)( 4th Cir. No. 02-1701)(March 11, 2002).

 

            A modification request was properly raised and reviewed were the basis of the request was an allegedly mistaken finding as to the extent of disability.  The claim was based on medical reports already in the record, as well as medical reports created after the initial decision.  The court found that this claim of mistake was clearly factual in nature�there was disagreement as to the interpretation of the medical evidence. 

 

            Additionally, the employer contended that the Board'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 (that a doctor's opinion was inconsistent). However, the Fourth Circuit found that the Board had properly vacated the opinion of the ALJ since the Board found that the doctor's changing opinions reflected the progression of the claimant's condition.


Topic   22.3     Modification�Determining What Constitutes a Valid Request

 

Wheeler v. Newport News Shipbuilding and Dry Dock Co . [Wheeler IV] , 37 BRBS 107  (2003).

 

            In the original Decision and Order, the ALJ awarded permanent total disability after finding that the employer had failed to establish suitable alternate employment. On appeal, the Board affirmed the ALJ's finding that the positions identified by the employer were unsuitable due to either the claimant's poor verbal skills or lack of experience. However, the Board stated that the employer raised a legitimate argument that the claimant's refusal to meet with the employer's vocational expert in person may have prevented the employer from being aware of the claimant's verbal deficiencies and from forming an accurate picture of her verbal qualifications, and thus form considering this factor in conducting the labor market survey.

 

            The Board in Wheeler I observed that the employer might elect to remedy this situation by submitting a new labor market survey by way of a petition for modification under Section 22. The Board explained that the claimant's refusal to meet with the vocational expert at the time of the initial proceeding should not preclude the employer's attempt to improve its evidence of suitable alternate employment upon its receipt of additional vocational information, as this would permit the claimant to benefit through her lack of cooperation.

 

            Subsequently the ALJ granted the employer's motion for modification on the basis that a mistaken determination of fact was shown in his initial award of permanent total disability benefits. Citing to several cases, the Board in Wheeler II noted that the jurisprudence makes clear that the scope of modification based on a mistake in fact is not limited to any particular kind of factual errors; any mistake in fact, including the ultimate fact of entitlement to benefits, may be corrected on modification.

 

            That said, the Board in Wheeler II concluded that the ALJ properly exercised his discretion in granting modification in this case based on a mistake in fact. "In the instant case, on modification the [ALJ] rationally found that claimant deliberately frustrated employer's vocational rehabilitation efforts, and significantly exaggerated her symptoms� Claimant's failure to cooperate with employer's vocational efforts at the time of the initial proceeding denied employer a full opportunity to develop its evidence of suitable alternate employment. As employer's new evidence of suitable alternate employment provides a basis for a mistake in fact in the initial finding of total disability, the [ALJ] acted within his discretionary authority in reopening the claim under Section 22."

 

            The Board concluded, "Employer attempted to show that claimant is not totally disabled by producing evidence of suitable alternate employment at the initial hearing; employer's ability to meet this burden was affected by claimant's lack of cooperation with employer's vocational efforts. On modification employer presented evidence arguably providing a more accurate evaluation of claimant's capabilities. Under these circumstances, the [ALJ's] decision to reopen the case and reconsider whether claimant is totally disabled serves the interest of justice under the Act."


Topic  22.3     odification�Determining what Constitutes a Valid Request

 

Jensen v. Weeks Marine, Inc ., 346 F.3d 273 ( 2d Cir. 2003).

 

            Here the Second Circuit clarified the proper legal standard for an ALJ to apply in Section 22 Modification Petitions. In the ALJ's Decision and Order, he found that the claimant had not injured his lower back, that he had injured his leg, that he had reached maximum medical improvement with a residual permanency of 4 percent, and that the employer's evidence of alternate employment was insufficient. Accordingly, the ALJ awarded permanent total disability benefits. Employer subsequently developed additional medical evidence about the claimant's condition as well as additional vocational evidence, with the claimant's cooperation. (Prior to the initial hearing, the claimant had refused to cooperate with the employer's assessment.)

 

            The ALJ assigned the Petition for Modification denied the request, reasoning that the evidence presented by the employer could have been discovered by the initial hearing and that employer was merely attempting to re-litigate issues resolved by the first hearing. On appeal to the Board, the Board held that the employer had proffered evidence that, if credited, could establish an entitlement to modification. Jensen v. Weeks Marine, Inc ., 33 BRBS 97 (1999)( Jensen I ).

 

            The Second Circuit , however, stated, "[T]he Board's language in its first decision may be read to imply that a section 22 movant must make some �threshold' proffer of new evidence before it is entitled to a review of the entire record�This impression would be error. As the Supreme Court has ruled, an ALJ may modify a prior order �to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted .' [ Citing O'Keefe v. Aerojet-General Shipyards, Inc ., 404 U.S. 254, at 256 (emphasis added by the court). Thus [Employer] was not required to show that the evidence it had developed was not available before the first hearing in order to secure a modification hearing."

 

            The circuit court went on to state, "The Board's citation to General Dynamics Corp. v. Director, OWCP , 673 F.2d 23 ( 1st Cir. 1982) may add to the confusion. Although General Dynamics contains some language about finality, see id . At 26 ("[p]arties should not be permitted to invoke 22 to correct errors or misjudgments of counsel"), the holding of the opinion is directed towards the moving party's failure to raise a Section 8(f) affirmative defense in the prior proceeding. Id .; see also 33 U.S.C. � 908(f)(3) ("Failure to present [a 8(f) request prior to �consideration shall be an absolute defense to � liability"). We believe that it is better to resist reading the General Dynamics dicta too broadly. Cf . Old Ben Coal Co ., 292 F.3d at 545 (nothing that finality language in General Dynamics is inconsistent with Supreme Court precedent and statutory language)."


Topic  22.3     Requesting odification

 

[ED. NOTE: Since the Black Lung Act's Section 22 Modification statute was derived from the LHWCA Section 22 statute, the followings case law is noteworthy in a longshore context as well. ]

 

Old Ben Coal Co. v. Director, OWCP [Hilliard] , 292 F.3d 533 ( 7th Cir. 2002) (May 31, 2002) (J. Wood, dissenting).

 

            Here the Seventh Circuit held that, "given the unique command of [the Black Lung Act]; a modification request cannot be denied solely because it contains argument or evidence that could have been presented at any earlier stage in the proceedings; such a concern for finality simply cannot be given the same weight that it would be given in a regular civil proceeding in a federal district court."

 

            In a strongly worded dissent, Judge Wood framed the question at issue as one about the standard the DOL must use in drawing the balance between accuracy (which at the extreme would call for reopening any time someone had new evidence or arguments) and finality (which at the extreme would forbid modification for any reason whatsoever). While noting the majority's acceptance of a standard where accuracy trumps unless the party seeking modification has intentionally abused the process, Judge Wood prefers a more flexible "interest of justice" determination to be made. "The 'interest of justice' standard would certainly permit consideration of intentional misuse, but it would also allow the responsible official to take into account factors such as the diligence of the party seeking modification, the number of times modification has been sought, and the quality of the new evidence or new arguments the party seeking modification wishes to present. A reviewing court would then decide whether a decision to reconsider, or a decision not to reconsider, an earlier award represented an abuse of discretion under familiar principles of administrative law."


Topic   22.3.1  Requesting Modification--Determining what constitutes a Valid Request

 

Norfolk Shipbuilding & Dry Dock Corp. v. Campbell ,  ___ U.S. ___, 124 S.Ct . 806 (Mem.)( Cert. denied December 1, 2003).

 

            The Supreme Court let stand the Fourth Circuit's previous holding, Norfolk Shipbuilding & Drydock Corp. v. Campbell , (Unpublished)(No. 02-1701)( 4th Cir. January 30, 2003), that a modification request was properly raised and reviewed where the basis of the request was an allegedly mistaken finding as to the extent of disability. The claim was based on medical reports already in the record, as well as medical reports created after the initial decision. The circuit court had found that this claim of mistake was clearly factual in nature--there was disagreement as to the interpretation of the medical evidence. Additionally, at the circuit level, the employer had contended that the Board'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 (that a doctor's opinion was inconsistent). However, the Fourth Circuit found that the Board had properly vacated the opinion of the ALJ since the Board found that the doctor's changing opinions reflected the progression of the claimant's condition.


Topic  22.3.1  Requesting Modification�Determining What Constitutes a Valid Request

 

[ED. NOTE: The following June 2003 decision is included in this digest news letter because it was received in July. ]

 

Gillus v. Newport News Shipbuilding & Dry Dock Company, 37 BRBS 93 (2003).

 

            The Board found that when a claimant in temporary partial disability status filed a motion for modification seeking de minimis benefits, it was not, per se, invalid as an �anticipatory� claim. Specifically, here the claimant filed the motion after her doctor noted her increasing difficulty in performing her job and that she had progressive arthritis and probably would need knee replacement surgery in the future. Thus the claim was not �anticipatory� according to the Board.

 

            Further more, the Board found that simply because the claimant's injury was to her leg, a body part covered by the schedule, does not mean that the claimant cannot receive a de minimis award. The board noted that the claimant had not claimed or been compensated for any permanent disability to her leg, nor has her condition been termed �permanent� by her physician. Thus, her modification claim for de minimis benefits was appropriately viewed as based upon an award for temporary partial disability benefits pursuant to Section 8(e). A Section 8(e) award is not precluded to a claimant who sustains an injury to a member listed in the Schedule at Section 8(c), but whose injury has not yet been found permanent. A claimant is limited to the schedule only where the claimant is permanently partially disabled.


Topic  22.3.1  Requesting Modification�Determining what constitutes a Valid Request

 

Norfolk Shipbuilding & Drydock Corp. v. Campbell , (Unpublished)( 4th Cir. No. 02-1701)(March 11, 2002).

 

            A modification request was properly raised and reviewed were the basis of the request was an allegedly mistaken finding as to the extent of disability.  The claim was based on medical reports already in the record, as well as medical reports created after the initial decision.  The court found that this claim of mistake was clearly factual in nature�there was disagreement as to the interpretation of the medical evidence.

 

            Additionally, the employer contended that the Board'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 (that a doctor's opinion was inconsistent). However, the Fourth Circuit found that the Board had properly vacated the opinion of the ALJ since the Board found that the doctor's changing opinions reflected the progression of the claimant's condition.


Topic  22.3.2  ModificationFiling a Timely Request

 

  Jones v. Newport News Shipbuilding & Dry Dock Co ., 36 BRBS 105(2002).

 

            At issue here is whether a timely Motion for Modification had been filed. More succinctly, at issue is whether a Motion for Modification may be based on a request for nominal benefits. In this case, the claimant was awarded benefits under the schedule for his work-related injury. Ten months after final payment of benefits under the schedule, but after the development of a hip condition (non-schedule), the claimant sent a letter to OWCP requesting nominal benefits. The ALJ found that this letter constituted a valid and timely motion for modification. Subsequently, the claimant filed a Motion for Modification over one year after the final payment of benefits.

 

            Employer initially argued that the claimant's request for a de minimis award was not sufficient under Section 22 as an actual award is required in order to toll the statute of limitations and as the letter is a prohibited anticipatory filing which does not allege a change of condition or a mistake of fact.

 

            However, the Board found that following the analysis of Metropolitan Stevedore Co. v. Rambo [Rambo II] , 521 U.S. 121, 31 BRBS 54(CRT) (1997), if a nominal award is a present award under Section 8(c)(21)(h), then a claim for nominal benefits is a viable, present claim for benefits under Section 8(c)(21)(h). Since a compensation order may be reopened pursuant to Section 22 based on a claim of increased disability, the ability to reopen a case necessarily includes the filing of claims for nominal awards under Section 8(c)(21). "It would be irrational to hold, in accordance with employer's argument, that the relief was appropriate in modification proceedings but a request for the appropriate relief was insufficient to initiate modification proceedings."

 

            Thus, the Board rejected the employer's argument that a petition for a nominal award cannot hold open a claim. Furthermore, the Board found that a claim for a nominal award is a present claim which gives rise to a present ongoing award if the claimant ultimately proves his case, a claim for a nominal award is not a prohibited anticipatory claim. "Accordingly, a motion for modification requesting nominal benefits is not an invalid anticipatory filing as a matter of law."

 

            The Board next examined the content and context of the letter/claim. The Board found that, on its face, the letter requested a specific type of compensation which the claimant would be immediately able to receive if he could prove entitlement. As to content, there must be a determination made as to whether the claimant had the intent to pursue an actual claim for benefits or it was filed solely with the purpose of attempting to keep the claimant's claim open. The Board, reasoned, "If the purpose of claimant's [letter] request was merely to hold open the claim until some future time when he became disabled, then the 1999 claim would not be a valid modification request." The Board upheld the ALJ's finding that the claimant had a legitimate non-frivolous, claim for benefits for a hip condition at the time he filed the letter.


Topic  22.3.2  Filing a Timely Request

 

Alexander v. Avondale Industries, Inc ., 36 BRBS 142 (2002).

 

            At issue here was whether a subsequent "claim" for temporary disability in conjunction with medical benefits/surgery was timely. Here the claimant's original claim for permanent disability compensation had been denied as the employer had established the availability of suitable alternate employment which the claimant could perform at wages equal to or greater than his AWW. Additionally it should be noted that the claimant was not awarded nominal benefits. Several years later when the claimant underwent disc surgery the Employer denied a request for temporary total disability. The Board did not accept claimant's argument that Section 13 controlled as this was not a "new" claim. The Board then looked to Section 22 and found that while that section controlled, a modification request at this stage was untimely.


Topic  22.3.2  ModificationFiling a Timely Request

 

Porter v. Newport News Shipbuilding & Dry Dock Co. , 36 BRBS 105 (2002).

 

            In contrast to the facts in Jones v. Newport News Shipbuilding & Dry Dock Company , 36 BRBS 109(2002), supra , the Board here notes that "[E]ven where a document on its face states a claim for modification, the circumstances surrounding its filing may establish the absence of an actual intent to pursue modification at that time."

 

            Here, unlike in Jones , the Board found that the context of the filing established that the claimant lacked the intent to pursue an actual claim for nominal benefits at the time she filed the petition for modification. The Board noted that the claimant's August 12, 1999 letter was filed only 18 days after the last payment of benefits and that while "it is conceivable claimant's condition could have changed in that short period of time, providing a basis for her assertion that she anticipated future economic harm, there is no evidence of record to support such a conclusion." It went on to note that the 1999 letter was filed well in advance of the December 2000 evidence of any deterioration of her condition and, thus, constituted an anticipatory filing.

 

            The Board found further evidence of an anticipatory filing in the claimant's actions. After receiving the 1999 letter, OWCP sought clarification of its purpose, asking the claimant whether the letter was to be considered "a request for an informal conference and/or Section 22 Modification so that we can [determine] what additional action needs to be taken by the office." The claimant responded stating that she did not want OWCP to schedule an informal conference, and, in so responding, she deliberately halted the administrative process.

 

            The Board found that because the claimant intentionally acted in a manner contrary to the pursuit of her claim, her actions were merely an effort at keeping the option of seeking modification open until she had a loss to claim. "[S]he did not have the requisite intent to pursue a claim for nominal benefits, but rather was attempting to file a document which would hold her claim open indefinitely." The total circumstances surrounding the filing of the 1999 letter establish that the application did not manifest an actual intent to seek compensation for the loss alleged. Because the 1999 motion was thus an anticipatory filing, it was not a valid motion for modification.

 

            While the Board found moot the claimant's argument that the ALJ erred in applying the doctrine of equitable estoppel, it nevertheless addressed it "for the sake of judicial efficiency." The Board found that, "Although, it was reasonable for employer to have relied on the statement that claimant did not wish to proceed to informal conference at that time, there was no detrimental reliance by employer. While employer may have thought the issue was abandoned or resolved in some manner it suffered no injury because of the letter: it took no action in reliance on the letter and it did not pay any benefits or place itself in a position of harm.


Topic  22.3.3  Modification� De Minimis Awards

 

[ED. NOTE: The following June 2003 decision is included in this digest news letter because it was received in July. ]

 

Gillus v. Newport News Shipbuilding & Dry Dock Company, 37 BRBS 93 (2003).

 

            The Board found that when a claimant in temporary partial disability status filed a motion for modification seeking de minimis benefits, it was not, per se, invalid as an �anticipatory� claim. Specifically, here the claimant filed the motion after her doctor noted her increasing difficulty in performing her job and that she had progressive arthritis and probably would need knee replacement surgery in the future. Thus the claim was not �anticipatory� according to the Board.

 

            Further more, the Board found that simply because the claimant's injury was to her leg, a body part covered by the schedule, does not mean that the claimant cannot receive a de minimis award. The Board noted that the claimant had not claimed or been compensated for any permanent disability to her leg, nor has her condition been termed �permanent� by her physician. Thus, her modification claim for de minimis benefits was appropriately viewed as based upon an award for temporary partial disability benefits pursuant to Section 8(e). A Section 8(e) award is not precluded to a claimant who sustains an injury to a member listed in the Schedule at Section 8(c), but whose injury has not yet been found permanent. A claimant is limited to the schedule only where the claimant is permanently partially disabled.


Topic  22.3.3  Modification De Minimis Awards

 

Jones v. Newport News Shipbuilding & Dry Dock Co ., 36 BRBS 105 (2002).

 

            At issue here is whether a timely Motion for Modification had been filed. More succinctly, at issue is whether a Motion for Modification may be based on a request for nominal benefits. In this case, the claimant was awarded benefits under the schedule for his work-related injury. Ten months after final payment of benefits under the schedule, but after the development of a hip condition (non-schedule), the claimant sent a letter to OWCP requesting nominal benefits. The ALJ found that this letter constituted a valid and timely motion for modification. Subsequently, the claimant filed a Motion for Modification over one year after the final payment of benefits.

 

            Employer initially argued that the claimant's request for a de minimis award was not sufficient under Section 22 as an actual award is required in order to toll the statute of limitations and as the letter is a prohibited anticipatory filing which does not allege a change of condition or a mistake of fact.

 

            However, the Board found that following the analysis of Metropolitan Stevedore Co. v. Rambo [Rambo II] , 521 U.S. 121, 31 BRBS 54(CRT) (1997), if a nominal award is a present award under Section 8(c)(21)(h), then a claim for nominal benefits is a viable, present claim for benefits under Section 8(c)(21)(h). Since a compensation order may be reopened pursuant to Section 22 based on a claim of increased disability, the ability to reopen a case necessarily includes the filing of claims for nominal awards under Section 8(c)(21). "It would be irrational to hold, in accordance with employer's argument, that the relief was appropriate in modification proceedings but a request for the appropriate relief was insufficient to initiate modification proceedings."

 

            Thus, the Board rejected the employer's argument that a petition for a nominal award cannot hold open a claim. Furthermore, the Board found that a claim for a nominal award is a present claim which gives rise to a present ongoing award if the claimant ultimately proves his case, a claim for a nominal award is not a prohibited anticipatory claim. "Accordingly, a motion for modification requesting nominal benefits is not an invalid anticipatory filing as a matter of law."

 

            The Board next examined the content and context of the letter/claim. The Board found that, on its face, the letter requested a specific type of compensation which the claimant would be immediately able to receive if he could prove entitlement. As to content, there must be a determination made as to whether the claimant had the intent to pursue an actual claim for benefits or it was filed solely with the purpose of attempting to keep the claimant's claim open. The Board, reasoned, "If the purpose of claimant's [letter] request was merely to hold open the claim until some future time when he became disabled, then the 1999 claim would not be a valid modification request." The Board upheld the ALJ's finding that the claimant had a legitimate non-frivolous, claim for benefits for a hip condition at the time he filed the letter.


Topic  22.3.3  Modification De Minimus Awards

 

Porter v. Newport News Shipbuilding & Dry Dock Co ., 36 BRBS 105 (2002).

 

            In contrast to the facts in Jones v. Newport News Shipbuilding & Dry Dock Company , 36 BRBS 109 (2002), supra , the Board here notes that "[E]ven where a document on its face states a claim for modification, the circumstances surrounding its filing may establish the absence of an actual intent to pursue modification at that time."

 

            Here, unlike in Jones , the Board found that the context of the filing established that the claimant lacked the intent to pursue an actual claim for nominal benefits at the time she filed the petition for modification. The Board noted that the claimant's August 12, 1999 letter was filed only 18 days after the last payment of benefits and that while "it is conceivable claimant's condition could have changed in that short period of time, providing a basis for her assertion that she anticipated future economic harm, there is no evidence of record to support such a conclusion." It went on to note that the 1999 letter was filed well in advance of the December 2000 evidence of any deterioration of her condition and, thus, constituted an anticipatory filing.

 

            The Board found further evidence of an anticipatory filing in the claimant's actions. After receiving the 1999 letter, OWCP sought clarification of its purpose, asking the claimant whether the letter was to be considered "a request for an informal conference and/or Section 22 Modification so that we can [determine] what additional action needs to be taken by the office." The claimant responded stating that she did not want OWCP to schedule an informal conference, and, in so responding, she deliberately halted the administrative process.

 

            The Board found that because the claimant intentionally acted in a manner contrary to the pursuit of her claim, her actions were merely an effort at keeping the option of seeking modification open until she had a loss to claim. "[S]he did not have the requisite intent to pursue a claim for nominal benefits, but rather was attempting to file a document which would hold her claim open indefinitely." The total circumstances surrounding the filing of the 1999 letter establish that the application did not manifest an actual intent to seek compensation for the loss alleged. Because the 1999 motion was thus an anticipatory filing, it was not a valid motion for modification.

 

            While the Board found moot the claimant's argument that the ALJ erred in applying the doctrine of equitable estoppel, it nevertheless addressed it "for the sake of judicial efficiency." The Board found that, "Although, it was reasonable for employer to have relied on the statement that claimant did not wish to proceed to informal conference at that time, there was no detrimental reliance by employer. While employer may have thought the issue was abandoned or resolved in some manner it suffered no injury because of the letter: it took no action in reliance on the letter and it did not pay any benefits or place itself in a position of harm.


Topic  22.3.5  Mistake of Fact

 

Norfolk Shipbuilding & Drydock Corp. v. Campbell , (Unpublished)( 4th Cir. No. 02-1701)(March 11, 2002).

 

            A modification request was properly raised and reviewed were the basis of the request was an allegedly mistaken finding as to the extent of disability.  The claim was based on medical reports already in the record, as well as medical reports created after the initial decision.  The court found that this claim of mistake was clearly factual in nature�there was disagreement as to the interpretation of the medical evidence.

 

            Additionally, the employer contended that the Board'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 (that a doctor's opinion was inconsistent). However, the Fourth Circuit found that the Board had properly vacated the opinion of the ALJ since the Board found that the doctor's changing opinions reflected the progression of the claimant's condition.


Topic 22.5      Attorney Fees�Mistake of Fact

 

Jensen v. Weeks Marine, Inc ., 346 F.3d 273 ( 2d Cir. 2003).

 

            Here the Second Circuit clarified the proper legal standard for an ALJ to apply in Section 22 Modification Petitions. In the ALJ's Decision and Order, he found that the claimant had not injured his lower back, that he had injured his leg, that he had reached maximum medical improvement with a residual permanency of 4 percent, and that the employer's evidence of alternate employment was insufficient. Accordingly, the ALJ awarded permanent total disability benefits. Employer subsequently developed additional medical evidence about the claimant's condition as well as additional vocational evidence, with the claimant's cooperation. (Prior to the initial hearing, the claimant had refused to cooperate with the employer's assessment.)

 

            The ALJ assigned the Petition for Modification denied the request, reasoning that the evidence presented by the employer could have been discovered by the initial hearing and that employer was merely attempting to re-litigate issues resolved by the first hearing. On appeal to the Board, the Board held that the employer had proffered evidence that, if credited, could establish an entitlement to modification. Jensen v. Weeks Marine, Inc ., 33 BRBS 97 (1999)( Jensen I ).

 

            The Second Circuit , however, stated, "[T]he Board's language in its first decision may be read to imply that a section 22 movant must make some �threshold' proffer of new evidence before it is entitled to a review of the entire record�This impression would be error. As the Supreme Court has ruled, an ALJ may modify a prior order �to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted .' [ Citing O'Keefe v. Aerojet-General Shipyards, Inc ., 404 U.S. 254, at 256 (emphasis added by the court). Thus [Employer] was not required to show that the evidence it had developed was not available before the first hearing in order to secure a modification hearing."

 

            The circuit court went on to state, "The Board's citation to General Dynamics Corp. v. Director, OWCP , 673 F.2d 23 ( 1st Cir. 1982) may add to the confusion. Although General Dynamics contains some language about finality, see id . At 26 ("[p]arties should not be permitted to invoke 22 to correct errors or misjudgments of counsel"), the holding of the opinion is directed towards the moving party's failure to raise a Section 8(f) affirmative defense in the prior proceeding. Id .; see also 33 U.S.C. � 908(f)(3) ("Failure to present [a 8(f) request prior to �consideration shall be an absolute defense to � liability"). We believe that it is better to resist reading the General Dynamics dicta too broadly. Cf . Old Ben Coal Co ., 292 F.3d at 545 (nothing that finality language in General Dynamics is inconsistent with Supreme Court precedent and statutory language)."


Topic 22.5      Attorney Fees�Mistake of Fact

 

Wheeler v. Newport News Shipbuilding and Dry Dock Co . [Wheeler IV] , 37 BRBS 107 (2003).

 

            In the original Decision and Order, the ALJ awarded permanent total disability after finding that the employer had failed to establish suitable alternate employment. On appeal, the Board affirmed the ALJ's finding that the positions identified by the employer were unsuitable due to either the claimant's poor verbal skills or lack of experience. However, the Board stated that the employer raised a legitimate argument that the claimant's refusal to meet with the employer's vocational expert in person may have prevented the employer from being aware of the claimant's verbal deficiencies and from forming an accurate picture of her verbal qualifications, and thus form considering this factor in conducting the labor market survey.

 

            The Board in Wheeler I observed that the employer might elect to remedy this situation by submitting a new labor market survey by way of a petition for modification under Section 22. The Board explained that the claimant's refusal to meet with the vocational expert at the time of the initial proceeding should not preclude the employer's attempt to improve its evidence of suitable alternate employment upon its receipt of additional vocational information, as this would permit the claimant to benefit through her lack of cooperation.

 

            Subsequently the ALJ granted the employer's motion for modification on the basis that a mistaken determination of fact was shown in his initial award of permanent total disability benefits. Citing to several cases, the Board in Wheeler II noted that the jurisprudence makes clear that the scope of modification based on a mistake in fact is not limited to any particular kind of factual errors; any mistake in fact, including the ultimate fact of entitlement to benefits, may be corrected on modification.

 

            That said, the Board in Wheeler II concluded that the ALJ properly exercised his discretion in granting modification in this case based on a mistake in fact. "In the instant case, on modification the [ALJ] rationally found that claimant deliberately frustrated employer's vocational rehabilitation efforts, and significantly exaggerated her symptoms� Claimant's failure to cooperate with employer's vocational efforts at the time of the initial proceeding denied employer a full opportunity to develop its evidence of suitable alternate employment. As employer's new evidence of suitable alternate employment provides a basis for a mistake in fact in the initial finding of total disability, the [ALJ] acted within his discretionary authority in reopening the claim under Section 22."

 

            The Board concluded, "Employer attempted to show that claimant is not totally disabled by producing evidence of suitable alternate employment at the initial hearing; employer's ability to meet this burden was affected by claimant's lack of cooperation with employer's vocational efforts. On modification employer presented evidence arguably providing a more accurate evaluation of claimant's capabilities. Under these circumstances, the [ALJ's] decision to reopen the case and reconsider whether claimant is totally disabled serves the interest of justice under the Act."