Wheeler v. Newport News Shipbuilding & Dry Dock Co.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHANIE H. WHEELER, 

Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND  No. 10-1164

DRY DOCK COMPANY; DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS,

Respondents.



On Petition for Review of an Order

of the Benefits Review Board.

(09-0570)

Argued: December 9, 2010

Decided: February 15, 2011

Before AGEE and WYNN, Circuit Judges,

and Patrick Michael DUFFY, Senior United States District

Judge for the District of South Carolina,

sitting by designation.

Affirmed by published opinion. Judge Agee wrote the opin-

ion, in which Judge Wynn and Senior Judge Duffy joined.

COUNSEL

ARGUED: Gregory Edward Camden, MONTAGNA,

KLEIN, CAMDEN, LLP, Norfolk, Virginia; Matthew W.

2 WHEELER v. NEWPORT NEWS SHIPBUILDING

Boyle, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Petitioner. Jonathan Henry Walker,

MASON, MASON, WALKER & HEDRICK, PC, Newport

News, Virginia, for Respondent. ON BRIEF: M. Patricia

Smith, Solicitor of Labor, Rae Ellen James, Associate Solici-

tor, Mark Reinhalter, Counsel for Longshore, Patricia M.

Nece, Counsel for Appellate Litigation, UNITED STATES

DEPARTMENT OF LABOR, Washington, D.C., for the

Director, Office of Workers’ Compensation Programs.

OPINION

AGEE, Circuit Judge:

I.

Petitioner Stephanie H. Wheeler appeals from a decision of

the Benefits Review Board ("the Board"),1 denying her claim

for benefits under the Longshore and Harbor Workers’ Com-

pensation Act, 33 U.S.C. §§ 901-950 ("LHWCA" or "the

Act"). Respondent Newport News Shipbuilding and Dry

Dock Company ("the Employer") opposes the relief sought by

Wheeler. The Director, Office of Workers’ Compensation

Programs, United States Department of Labor ("the Direc-

tor"), supports Wheeler’s petition in this matter and joins in

her request for reversal of the Board’s decision.

1

The Benefits Review Board, an agency of the Department of Labor, is

the administrative appeals board for decisions of an administrative law

judge ("ALJ") arising under several statutes, including the Act. The Board

has authority to review the decision of an ALJ in order to determine

whether the ALJ’s findings are "supported by substantial evidence in the

record as a whole, are rational, and are in accordance with the law." Gil-

christ v. Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918

(4th Cir. 1998) (citations omitted). The Board’s decisions may be appealed

to the U.S. court of appeals in the circuit where the injury arose. 33 U.S.C.

§ 921(c).

WHEELER v. NEWPORT NEWS SHIPBUILDING 3

Because we conclude that the term "compensation" in Sec-

tion 22 of the Act does not include the payment of medical

benefits, we affirm the Board’s decision.

II.

A.

This case requires us to determine the meaning and scope

of the term "compensation," as used in Section 22 of the

LHWCA.2 In particular, we must decide whether "compensa-

tion" under that statute includes voluntary payments by an

employer to a claimant’s medical providers.

The pertinent facts are undisputed. On May 26, 1992,

Wheeler sustained an injury to both knees while working for

the Employer. She sought and was awarded scheduled perma-

nent partial disability compensation, as well as a period of

temporary total disability compensation. Wheeler later sought

continuing permanent total disability compensation, which the

Employer contested. On August 14, 2002, the Administrative

Law Judge ("ALJ") issued an order denying Wheeler’s claim

for permanent total disability compensation. Wheeler

appealed, and the Board affirmed on September 12, 2003. No

further appeal was taken from that order, and by that date, the

Employer had completed its compensation payments for

Wheeler’s scheduled permanent partial disability.3

2

Sections referred to herein are found in 33 U.S.C. with the same sec-

tion numbers as are used in the Act except each is prefixed with a 9, e.g.,

Section 7 refers to 33 U.S.C. § 907.

3

Although Wheeler’s partial disability was determined to be "perma-

nent," it was a scheduled disability under § 902(c)(2). (See J.A. 64.)

Scheduled disability benefits are "payable for a specific duration regard-

less of the actual impact of the disability on the claimant’s prospects of

returning to . . . work." ITO Corp. of Baltimore v. Green, 185 F.3d 239,

242 n.3 (4th Cir. 1999) (describing the "apples-and-oranges" approach of

the statute depending on whether a particular disability is within the

schedule or not).

4 WHEELER v. NEWPORT NEWS SHIPBUILDING

Since the 2003 decision, Wheeler continued to seek regular

medical treatment for her knees, which the Employer autho-

rized and paid. This treatment included surgeries in 2006 and

2008 for a right total knee arthroplasty and left knee arthro-

plasty, respectively.

On September 13, 2007, Wheeler submitted a request for

modification of her permanent partial disability award, pursu-

ant to Section 22 of the Act, once again seeking total disabil-

ity benefits as a result of the deteriorating condition of her

knees. Specifically, Wheeler sought temporary total disability

from June 20, 2006 to June 13, 2007, temporary partial dis-

ability from June 14, 2007 to September 5, 2007 and tempo-

rary total disability from September 6, 2007 to the present and

continuing.

Her request for modification was rejected as untimely by an

ALJ Decision and Order because the request was not filed

within one year "after the date of the last payment of compen-

sation" or "after the rejection of a claim," as set forth in Sec-

tion 22. While Wheeler’s request for modification was filed

within one year of when the Employer last paid medical bene-

fits on Wheeler’s behalf, it was filed more than four years

after the Board’s last order in 2003 denying her claim for per-

manent total disability compensation.

In determining Wheeler’s request for modification was

untimely, the ALJ expressly rejected Wheeler’s argument that

the term "compensation" as used in Section 22 of the Act

includes the voluntary payment by an employer of a claim-

ant’s medical expenses. The ALJ concluded that Wheeler

filed her modification request more than one year after the

date on which the Board’s denial of her claim became final

in 2003 and that her current request was therefore time-

barred.

Wheeler appealed the ALJ’s decision to the Board. The

opinion and order of the Board affirmed the ALJ’s denial of

WHEELER v. NEWPORT NEWS SHIPBUILDING 5

Wheeler’s modification request, finding the request was

untimely and thus time-barred.

Wheeler filed a timely petition for review of the Board’s

decision to this Court. We have jurisdiction pursuant to 33

U.S.C. § 921.

B.

This Court reviews 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 Shipbuilding & Dry Dock Co., 135

F.3d 915, 918 (4th Cir. 1998). As to the Board’s interpretation

of the Act, review is de novo, because the Board is not a

policy-making agency and its statutory interpretation is thus

not entitled to any special deference from the Court of

Appeals. Id. at 918.

C.

In pertinent part, Section 22 of the Act provides as follows:

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 determina-

tion of fact by the deputy commissioner, the deputy

commissioner may, at any time prior to one year

after the date of the last payment of compensation,

whether or not a compensation order has been

issued, or at any time prior to one year after the

rejection of a claim, review a compensation case . . .

[and] issue a new compensation order which may

terminate, continue, reinstate, increase, or decrease

such compensation, or award compensation.

33 U.S.C. § 922 (emphasis added). At issue here is the mean-

ing of the term "compensation" in the emphasized portion of

6 WHEELER v. NEWPORT NEWS SHIPBUILDING

the statute, which effectively sets a statute of limitations for

reopening a compensation order. In particular, for resolution

of the case at bar, if "compensation" includes the payment of

medical benefits, then Wheeler’s claim for modification is

arguably timely;4 if it does not, then her claim for benefits was

properly denied by the Board as time-barred.

The parties have not identified any court decisions directly

addressing whether the term "compensation" within Section

22 of the Act should be interpreted to include "medical pay-

ments." In resolving this issue of first impression, we look ini-

tially to the language of the Act itself:

If it is plain, we apply it according to its terms. To

determine whether the language is plain, we consider

the language itself, the specific context in which that

language is used, and the broader context of the stat-

ute as a whole. If the language is ambiguous, in that

it lends itself to more than one reasonable interpreta-

tion, our obligation is to find that interpretation

4

We say Wheeler’s claim is only arguably timely because the Employer

also argues that even if the term compensation includes "medical bene-

fits," it would only include medical benefits paid directly to the employee

and not benefits paid directly to healthcare providers, such as the monies

paid here. The Employer relies for this argument on the definition of

"compensation" in the Act as "the money allowance payable to an

employee or to his dependents," 33 U.S.C. § 902(12), and on the Fifth Cir-

cuit’s decision in Lazarus v. Chevron USA, Inc., which drew this distinc-

tion under Section 18(a) of the Act. 958 F.2d 1297, 1300-01 (5th Cir.

1992)(payments to an employee to reimburse him for medical costs that

he had incurred were "compensation" but payments to an employee’s

health care provider would not constitute "compensation" under that sec-

tion); see also Marshall v. Pletz, 317 U.S. 383, 391 (1943) (noting that

"[i]n the normal case . . . the insurer defrays the expense of medical care

but does not pay the injured employe[e]" directly and using that as support

for the fact that "compensation" in Section 13(a) did not include the pay-

ment of medical benefits). Because we conclude herein that compensation

in Section 22 does not include payment of medical benefits, we do not

reach this issue.

WHEELER v. NEWPORT NEWS SHIPBUILDING 7

which can most fairly be said to be imbedded in the

statute, in the sense of being most harmonious with

its scheme and the general purposes that Congress

manifested.

Newport News Shipbuilding & Dry Dock Co. v. Brown, 376

F.3d 245, 248 (4th Cir. 2004) (internal quotations and cita-

tions omitted).

The plain language of Section 22, however, does not

clearly indicate that "compensation" either includes or

excludes medical payments. By contrast, other provisions of

the Act, by their text or structure, do clearly reflect that the

payment of medical benefits may, or may not, constitute

"compensation." See, e.g., Md. Shipbuilding & Drydock Co.

v. Jenkins, 594 F.2d 404, 406-07 (4th Cir. 1979)

("compensation" in Section 4(a) includes medical benefits

because the section requires payment of "compensation pay-

able under sections [7, 8 and 9] of [the] Act"; its explicit ref-

erence to Section 7 (which pertains solely to medical services

and supplies) means that "compensation" includes medical

benefits); Lazarus v. Chevron USA, Inc., 958 F.2d 1297, 1303

(5th Cir. 1992) ("compensation" under Section 18(a) includes

medical benefits); Oilfield Safety & Mach. Specialties, Inc. v.

Harman Unlimited, Inc., 625 F.2d 1248, 1257 (5th Cir. 1980)

("compensation" under Section 28(a) includes medical bene-

fits); 33 U.S.C. § 906(a) ("[n]o compensation shall be allowed

for the first three days of the disability, except the benefits

provided for in Section [7] . . .", thereby including medical

benefits in compensation).

Additionally, although the Act includes a definition of

"compensation," that definition does not expressly state

whether the term should be interpreted to include medical

benefits. See 33 U.S.C. § 902(12) ("‘Compensation’ means

the money allowance payable to an employee or to his depen-

dents as provided for in this chapter, and includes funeral ben-

efits provided therein."). Moreover, the Supreme Court and

8 WHEELER v. NEWPORT NEWS SHIPBUILDING

this Court have held that the term "compensation" does not

include medical benefits in other places in the Act. See, e.g.,

Marshall v. Pletz, 317 U.S. 383, 390-91 (1943)

("compensation" in Section 13, which requires an employee

to file a claim for "compensation for disability" within one

year after the injury, does not include medical payments);

Brown & Root, Inc. v. Sain, 162 F.3d 813, 818-19 & n.4 (4th

Cir. 1998) ("compensation" in Section 33(g)(1) does not

include medical benefits, in light of fact that Section 33(g)(2)

refers to "compensation and medical benefits"; the inclusion

of "medical benefits" in subsection (2) suggests that its omis-

sion in subsection (1) was intentional).

In short, as noted by the Fifth Circuit, the term compensa-

tion is not utilized as a "term of art" in the Act. See Oilfield

Safety & Mach. Specialties, Inc., 625 F.2d at 1257. Rather, its

meaning varies among the statutes within the Act.

In this case, both the ALJ and the Board relied heavily on

the Supreme Court’s decision in Pletz, 317 U.S. 383. (J.A.

199-202 (ALJ decision); J.A. 209-10 (Board decision).) In

Pletz, the Supreme Court determined that the term "compen-

sation" in Section 13 of the Act did not include "medical aid."

317 U.S. at 390-91. Section 13 requires an employee to file

a claim for "compensation for disability" "within one year

after the injury, . . . except that if payment of compensation

has been made without an award on account of such injury . . .

a claim may be filed within one year after the date of the last

payment. . . ." Id. at 384 n.3 (citing 33 U.S.C. § 913)(ellipses

in original).

Because Pletz addressed a separate statute with different

language, we do not find it controlling. In particular, the pro-

vision at issue in Pletz specifically referred to "the right to

compensation for disability or death." 33 U.S.C. § 913(a).

This was an obvious reference to Sections 8 and 9 of the Act

(titled "Compensation for disability" and "Compensation for

death," respectively). The clear implication of Section 13’s

WHEELER v. NEWPORT NEWS SHIPBUILDING 9

reference to compensation would logically exclude Section 7,

which is the provision governing medical benefits and titled

"Medical services and supplies." Thus, it is easy to see why

the Pletz Court did not read Section 13 to encompass the pay-

ment of medical benefits as compensation. By contrast, Sec-

tion 22 does not make reference to disability or death as does

Section 13. Thus, we find Pletz distinguishable and not con-

trolling precedent. Moreover, as already noted, there are other

provisions in the Act where the term "compensation" clearly

does include medical benefits. See Jenkins, 594 F.2d at 406-

07 ("compensation" in Section 4(a) includes medical bene-

fits).

While we do not find Pletz controlling, it is instructive. One

particular reason that is so is that Section 13 and Section 22

both establish statutes of limitation for filing compensation

claims under the Act and use similar language. Section 13

allows a claim to be "filed within one year after the date of

the last payment" and earlier in the same sentence refers to

"payment of compensation." Similarly, Section 22 allows

modifications and review of an award of compensation "at

any time prior to one year after the date of the last payment

of compensation." Thus, although there are differences, there

are also similarities in the language of the two sections that

counsel careful consideration of the reasoning of Pletz as we

analyze Section 22.

In view of the lack of any controlling precedent and the

lack of the clear inclusion or exclusion of medical benefits as

part of compensation in either the definition of "compensa-

tion" or the text and structure of Section 22, we conclude that

the meaning of "compensation" in Section 22 is ambiguous.

Accordingly, we must find the "interpretation . . . most fairly

. . . imbedded in the statute, in the sense of being most harmo-

nious with its scheme and the general purposes that Congress

manifested." Brown, 376 F.3d at 248 (citations omitted).

10 WHEELER v. NEWPORT NEWS SHIPBUILDING

D.

As explained by this Court in Brown,

[t]he LHWCA is a no-fault workers compensation

scheme that provides "employees with the benefit of

a more certain recovery for work-related harms"

while providing "employers with definite and lower

limits on potential liability than would have been

applicable in common-law tort actions for damages.

The LHWCA is thus designed to accommodate "em-

ployees’ interest in receiving a prompt and certain

recovery for their industrial injuries as well as . . .

the employers’ interest in having their contingent lia-

bilities identified as precisely and as early as possi-

ble.

376 F.3d at 249-50 (citations omitted).

The Director and Wheeler describe Section 22 as this Court

did in Betty B Coal Co. v. Director, OWCP, by referring to

the modification procedure in Section 22 as "extraordinarily

broad" and "flexible, potent, easily invoked, and intended to

secure ‘justice under the act.’" 194 F.3d 491, 497-98 (4th Cir.

1999); see also O’Keeffe v. Aerojet-General Shipyards, Inc.,

404 U.S. 254, 255-56 (1971) (Section 22 allows modification

of an earlier compensation order "when changed conditions

. . . make[ ] such modification desirable in order to render jus-

tice under the act.").

Wheeler’s focus on the general purpose of Section 22 as a

whole, however, ignores the reality that the provision also

contains a statute of limitations. That is, both the Section 22

time bar and the initial one-year period for filing claims, see

33 U.S.C. § 913, are obviously limitations on the right of a

party to seek redress under the Act, even in cases where there

may be a meritorious claim. Indeed, a statute of limitations,

by its very nature, may result in the denial of otherwise meri-

WHEELER v. NEWPORT NEWS SHIPBUILDING 11

torious claims. Gould v. U.S. Dep’t of Health & Human

Servs., 905 F.2d 738, 747 (4th Cir. 1990)("statutes of limita-

tions often make it impossible to enforce what were otherwise

perfectly valid claims")(quoting United States v. Kubrick, 444

U.S. 111, 125 (1979)). But statutes of limitations "serve

important, well-established purposes affirmed throughout our

jurisprudence. We are bound to give them effect until such

time as the creator of such provisions, the legislative branch,

exercises its prerogative to amend the statute." Gould, 905

F.2d at 747.

Thus, we must interpret Section 22 in a way so as to main-

tain the provision’s "extraordinarily broad" modification pro-

cedure, Betty B Coal Co., 194 F.3d at 497, while still giving

effect to the one-year limitations period it contains.

Notably, the legislative history of Section 22 reflects Con-

gress’s attempt to strike such a balance, and also supports the

conclusion that "compensation" in Section 22 does not

include payment of medical benefits. As originally enacted,

Section 22 permitted the modification of a prior order of com-

pensation only "during the term of an award." See Intercounty

Constr. Corp. v. Walter, 422 U.S. 1, 8 (1975) (citation omit-

ted). Courts construed this provision to limit the power to

modify a previous order to the "period of payments pursuant

to an award." Id. at 8-9. Because employers often paid bene-

fits voluntarily and completed making payments before a final

compensation order was entered, claimants were frequently

left unable to seek additional compensation because the "term

of the award" had expired with the last payment of compensa-

tion and that occurred long before they received an order. See

Intercounty Constr. Corp. v. Walter, 500 F.2d 815, 818 (D.C.

Cir. 1974), aff’d 422 U.S. 1 (1975).

In an attempt to remedy this situation, the United States

Employees’ Compensation Commission ("USECC"), which

then administered the Act, recommended that Congress

amend Section 22 to permit continuing review and modifica-

12 WHEELER v. NEWPORT NEWS SHIPBUILDING

tion of previously entered orders. Walter, 422 U.S. at 9. The

purpose of the USECC recommendation was to "broaden[]

the length of time during which the deputy commissioner

could exercise his power to modify previously entered

orders." Id.

As recounted by the Supreme Court in Walter, Congress

responded in 1934 by amending Section 22 and explained the

change as follows:

[This bill] amends section 22 of the existing act so

as to broaden the grounds on which a deputy com-

missioner can modify an award and also while

strictly limiting the period, extends the time within

which such modification may be made. . . .

The amendment is in line with the recommenda-

tion of the [USECC] except that it limits to 1 year

after the date of the last payment of compensation

the time during which such modification may be

made.

Walter, 422 U.S. at 10 (emphasis added) (alterations in origi-

nal) (quoting S. Rep. No. 558, 73d Cong., 2d Sess., 3-4

(1934); H.R. Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934)).

Thus, Congress explicitly rejected the recommendation that

modification be permitted with no time limitation, instead

restricting modifications to a one-year time period after cer-

tain events. See id. This legislative history further shows that

Congress’s inclusion of the one-year limitations period was

not accidental, and bolsters the conclusion that the Section 22

limitations period must not be construed in a way that strips

it of much of its force.

The Director argues that the legislative history does not

support a strict construction of any portion of Section 22. He

points to the Supreme Court’s decision in Metropolitan Steve-

WHEELER v. NEWPORT NEWS SHIPBUILDING 13

dore Co. v. Rambo, 515 U.S. 291 (1995) ("Rambo I"), in

which the Supreme Court stated that Congress’s "unwilling-

[ness] to extend the 1-year limitations period in which a party

may seek modification" should not lead courts to

infer that Congress intended a narrow construction

of other parts of § 22, including the circumstances

that would justify reopening an award. We rejected

this very argument in Banks [v. Chicago Grain

Trimmers Ass’n, Inc., 390 U.S. 459, 465 (1968)],

and its logic continues to elude us. Congress’ deci-

sion to maintain a 1-year limitations period has no

apparent relevance to which changed conditions may

justify modifying an award.

515 U.S. at 298-99.

Unlike the Rambo I and Banks courts, however, we are not

tasked with interpreting a different portion of Section 22, but

with interpreting the statute of limitations itself and what

events trigger it. Cf. Rambo I, 515 U.S. at 293 (addressing

which conditions justify modification); Banks, 390 U.S. at

465 (suggesting that the legislative history might be relevant

to "the time period in which review was to be available," but

the history did not address the "grounds for review.").

Moreover, the interpretation urged by Wheeler and the

Director would, for all practical purposes, allow the statute of

limitations to be extended indefinitely, because each time any

medical treatment in some way related to a covered injury

was sought and paid, it would trigger the running of the one-

year period anew.5 For example, a claimant could seek

follow-up medical treatment for an injury at any time, and by

5

As pointed out by the Employer, the Director’s interpretation might

also have the unintended consequence of employers being hesitant to

promptly pay claims for medical expenses, knowing that doing so would

extend for another year any request for modification of compensation.

14 WHEELER v. NEWPORT NEWS SHIPBUILDING

doing so, re-open the period for modification of monetary

benefits. Holding as urged by the Director and Wheeler here,

therefore, would effectively create by judicial act the rule

Congress explicitly refused to adopt, that of a very broad —

if not unlimited — time period in which claims for modifica-

tion could be brought.

We also conclude that the purposes of Section 7 of the Act

are best respected by our interpretation of "compensation" as

excluding medical payments. That is, the word "compensa-

tion" appears ten other times in Section 22, in addition to the

phrase "after the date of the last payment of compensation,"

which we interpret here. For example, the Section allows for

review of a "compensation case" and allows modification of

any "compensation order." 33 U.S.C. § 922. Following the

basic canon of statutory construction that a term used more

than once within the same provision should be given an iden-

tical meaning, if possible, see, e.g. Estate of Cowart v. Nicklos

Drilling Co., 505 U.S. 469, 479 (1992) (identical terms within

an Act are presumed to bear the same meaning), we should

give the term "compensation" the same meaning in every

place in Section 22.

If we interpret "compensation" as including medical bene-

fits in every other place the term appears in Section 22, how-

ever, then Section 22 would seem to allow restrictions on

medical benefits that are not envisioned by Section 7. For

example, if medical benefits were part of the term compensa-

tion throughout Section 22, then the provision would allow

the commissioner or deputy commissioner to "review a [med-

ical benefits] case . . . [and] issue a new [medical benefits]

order which may terminate, continue, reinstate, increase, or

decrease such [medical benefits] or award [medical benefits]."

Such a reading appears contrary to Section 7, which requires

an employer to furnish or pay for medical services and sup-

plies "for such period as the nature of the injury or the process

of recovery may require." That is, Section 7 does not contain

any time restrictions on the furnishing of (or payment of)

WHEELER v. NEWPORT NEWS SHIPBUILDING 15

medical services. Interpreting Section 22 as the Director

urges, however, particularly if we were to interpret compensa-

tion consistently throughout that provision, would seem to

place a limitation on the payment of medical benefits in direct

conflict with Section 7.

Such a reading would also conflict with the Supreme

Court’s pronouncement in Pletz, that the time limitations for

bringing an initial claim for compensation do not apply to

claims for medical services. See 317 U.S. at 390-91.

For all of the foregoing reasons, we conclude that interpret-

ing "payment of compensation" in Section 22 to exclude an

employer’s payment of medical benefits is most harmonious

with the purpose of both the statute’s limitations period and

the Act as a whole.

Wheeler and the Director contend, however, that such a

reading of Section 22, i.e., one that excludes the payment of

medical benefits from compensation, will mean that whenever

a claimant is not receiving a disability award, and then has

previous workplace injuries that worsen to the point of requir-

ing additional medical care, she is not entitled to seek disabil-

ity benefits if it has been more than one year since she last

received disability benefits (or since such benefits were

rejected). However, this Court has enforced the Section 22

limitations period in other cases, even though it resulted in a

decision adverse to a claimant. See, e.g., House v. S. Stevedor-

ing Co., 703 F.2d 87, 89 (4th Cir. 1983) (rejecting claimant’s

suggestion that his request for modification should be deemed

timely filed because it was filed within one year of the time

the last payment of compensation would have been made had

the award been paid out in installments instead of in a lump

sum because Section 22 required that the modification claim

be filed within one year of the last payment, not when it

would have been paid had the payment been structured differ-

ently). Even in Betty B Coal Co., which recognized the broad

and generous scope of the modification remedy, there was no

16 WHEELER v. NEWPORT NEWS SHIPBUILDING

suggestion that the one-year limitations period could simply

be ignored. See 194 F.3d at 499 (referring to the earlier deci-

sion of Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358,

1360, 1364 (4th Cir. 1996) (en banc) wherein this Court rec-

ognized that a claimant who wanted to "be a perpetual litiga-

tor" could simply file repeated requests for "modification" the

day before a year runs from the prior denial).

Moreover, as noted above, it is the nature of limitations

periods to sometimes work seemingly harsh results. Gould,

905 F.2d at 747. As the Supreme Court explained in interpret-

ing the limitations period in Section 13 of the Act,

[w]e are aware that this is a humanitarian act, and

that it should be construed liberally to effectuate its

purposes; but that does not give us the power to

rewrite the statute of limitations at will, and make

what was intended to be a limitation no limitation at

all . . . . While it might be desirable for the statute

to provide as [Wheeler] contend[s], the power to

change the statute is with Congress, not us.

Pillsbury v. United Eng’g Co., 342 U.S. 197, 200 (1952)

(cited in Newport News Shipbuilding & Dry Dock Co. v. Par-

ker, 935 F.2d 20, 24 (4th Cir. 1991)).

Applying the same reasoning here, this Court cannot inter-

pret Section 22 solely to ensure "justice under the Act" by

effectively writing the limitations period out of the statute. As

we have discussed above, the reading urged by the Director

would allow avoidance of the statute of limitations in Section

22 merely through the claimant seeking medical treatment,

even years after the injury and years after disability compen-

sation and compensation proceedings had ceased. Such a

reading strips the limitation period of nearly all meaning and

is not consistent with the Congressional intent. See id.6

6

The Director also relies heavily on Metropolitan Stevedore Co. v.

Rambo, 521 U.S. 121 (1997) ("Rambo II"). The Director contends the

WHEELER v. NEWPORT NEWS SHIPBUILDING 17

E.

Because our conclusion is contrary to the interpretation

urged by the Director, we also explain briefly why we do not

defer to the Director proffered view. This Court has previ-

ously held that the Director’s "interpretation of the Act in its

briefs is entitled to some deference." Newport News Ship-

building & Dry Dock Co. v. Riley, 262 F.3d 227, 231 (4th Cir.

2001); see also Newport News Shipbuilding & Dry Dock Co.

v. Director, OWCP, 315 F.3d 286, 294 n.8 (4th Cir. 2002)

(where Director had "consistently maintained" the same posi-

tion since an earlier court decision, the position was not

merely a litigating position and was entitled to deference). But

see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13

(1988) (no deference is due to the Director’s interpretation

where it appears to be merely a litigating position, and is not

based on or supported "by regulations, rulings, or administra-

tive practice").

Skidmore v. Swift & Co. instructs that the level of deference

owed to an agency’s interpretation of an act it is tasked with

administering depends upon "the thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control."

323 U.S. 134, 140 (1944).

Supreme Court’s willingness to allow a "nominal award" procedure in

Rambo II, where the claimant had only a potential disability, means that

the Supreme Court "would give an equally liberal interpretation" to com-

pensation in Section 22 to ensure that Wheeler is not denied compensation

for her actual work-related disability. Conversely, the majority’s holding

in Rambo II requires that something be timely done by the claimant in

order to keep open the possibility of future disability payments in the

event of a worsening medical condition. This would appear to bolster the

Employer’s position here. In any event, because we do not find Rambo II

to significantly aid our decision here, we do not discuss it further.

18 WHEELER v. NEWPORT NEWS SHIPBUILDING

The Director candidly admits that he has never before taken

a formal position on the issue before us, but asserts that is

because the issue has never arisen. (Supp. Brief for Fed. Resp.

at 6-7). Nonetheless, the Director argues that his position here

is thorough in its consideration of the issue, employs valid

reasoning, and is consistent with his position on related issues

in previous litigation. Finally, the Director asserts there is

"‘no reason to suspect’ that [his] interpretation of section 22

‘does not reflect the agency’s fair and considered judgment on

the matter in question.’" (Id. (citing Newport News Shipbuild-

ing & Dry Dock Co., 315 F.3d at 294 n.8).)

As to the "consistency" factor, it is difficult to gauge

whether the Director’s position here is consistent, since he

freely admits that he has never taken a position on this precise

issue before. Further, the Director does not point us to any

"regulations, rulings or administrative practice" to support his

viewpoint. It seems just as valid a conclusion that the Direc-

tor’s argument is a new litigating position as he can adduce

no evidence of an agency position despite Section 22’s place

in the Act for decades.

While we do not doubt that the Director has been thorough

in considering the issue, we do not find his reasoning con-

vincing. In particular, as discussed above, we believe that the

Director’s interpretation of Section 22 greatly undermines the

effect of the limitations period in that statute and is inconsis-

tent with the intent of Congress as the legislative history illus-

trates. Additionally, the Director’s reading of "compensation"

to include medical benefits in Section 22 renders that provi-

sion potentially inconsistent with both Section 7 and the

Supreme Court’s interpretation of Section 13 in Pletz. Section

7 makes clear that medical benefits are not subject to any stat-

ute of limitations, but must be paid at any time if related to

the injury. Similarly, Pletz makes clear that claims for medi-

cal benefits are not subject to the limitations period in Section

13 of the Act, which governs the filing of initial claims for

benefits.

WHEELER v. NEWPORT NEWS SHIPBUILDING 19

Because we find the Director’s reasoning flawed, therefore,

and his position unpersuasive, we do not defer to the Direc-

tor’s position. See Ball v. Memphis Bar-B-Q Co., 228 F.3d

360, 365 (4th Cir. 2000) (declining to defer to an agency’s

position taken in a brief where it was not persuasive, because

it is "entitled to respect only to the extent that [it has] the

power to persuade") (citations and internal quotations omit-

ted); Weyher/Livsey Constructors, Inc. v. Prevetire, 27 F.3d

985, 988 (4th Cir. 1994) (declining to defer to the Director’s

interpretation of the LHWCA where it is "both unreasonable

and contrary to Congress’ clear intent, as expressed in the

Act’s text and structure" and noting that the court’s "duty is

to enforce the will of Congress, notwithstanding the Direc-

tor’s interpretation").

III.

For the reasons set forth above, we conclude that the term

"compensation" in 33 U.S.C. § 922 does not include voluntary

payments by an employer for medical services provided to an

employee. As such, the payments of such services do not

extend the Section 22 limitations period. Because Wheeler did

not file her request for modification within the one year

period set forth in Section 22, it is time-barred. Accordingly,

we find no error in the decision of the Board. The decision of

the Board is therefore

AFFIRMED.