The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES KEA,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND No. 06-1320
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(05-0515)
Argued: March 12, 2007
Decided: June 18, 2007
Before WILLIAMS, TRAXLER, and SHEDD, Circuit Judges.
Petition for review granted; vacated and remanded by published opin-
ion. Judge Traxler wrote the opinion, in which Judge Williams and
Judge Shedd joined.
COUNSEL
ARGUED: Gregory Edward Camden, MONTAGNA, KLEIN, CAM-
DEN, L.L.P., Norfolk, Virginia, for Petitioner. Richard Anthony Seid,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solic-
itor, Washington, D.C., for Respondents. ON BRIEF: Jonathan H.
2 KEA v. NEWPORT NEWS SHIPBUILDING
Walker, MASON, MASON, WALKER & HEDRICK, P.C., Newport
News, Virginia, for Respondent Newport News Shipbuilding and Dry
Dock Company. Howard M. Radzely, Solicitor of Labor, Allen H.
Feldman, Associate Solicitor, Mark A. Reinhalter, Counsel for Long-
shore, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Federal Respondent.
OPINION
TRAXLER, Circuit Judge:
James Kea petitions for review of the Decision and Order of the
Benefits Review Board (the "Board") denying his request for modifi-
cation of his award of compensation pursuant to § 922 of the Long-
shore and Harbor Workers’ Compensation Act ("LHWCA" or the
"Act"), 33 U.S.C.A. § 922 (West 2001). For the following reasons, we
grant the petition for review, vacate the Board’s order, and remand.
I.
On April 6, 1995, Kea injured his right leg while working as a
shipbuilder for Newport News Shipbuilding and Dry Dock Company
("Newport News"). As a result of this injury, Kea received temporary
total disability benefits from April 7, 1995, to August 27, 1995, which
were voluntarily paid by Newport News. On September 10, 1999, the
District Director for the Office of Workers’ Compensation Programs
("OWCP") issued a Compensation Order awarding Kea additional
benefits in the amount of $1000, representing temporary partial dis-
ability benefits for the period from August 28, 1995, to December 31,
1998, as well as continued medical care. Newport News paid the final
compensation payment for temporary disability benefits on Septem-
ber 15, 1999.
On September 17, 1999, Kea’s counsel filed a letter with the Dis-
trict Director, along with a Form LS-203, "Employee’s Claim for
Compensation," J.A. 57a, alleging that he had also "sustained a per-
manent loss of wage earning capacity as a result of this injury," J.A.
57 (emphasis added). Kea requested that the letter be considered "a
KEA v. NEWPORT NEWS SHIPBUILDING 3
request for additional compensation in modification of the previous
award and not a request for the scheduling of an informal confer-
ence." J.A. 57. The LS-203 also indicated that Kea was pursuing per-
manent disability benefits.
On September 27, 1999, the District Director served Newport
News with a "Notice to Employer and Insurance Carrier that Claim
Has Been Filed," and enclosed a copy of Kea’s claim for additional
compensation. J.A. 59. The Notice informed Newport News that it
"should proceed to pay compensation promptly when due" and "to
furnish medical treatment" pursuant to the Act, "unless liability to pay
compensation is controverted." J.A. 59. The Notice also advised New-
port News that notice that the right to compensation is controverted
must be filed within fourteen days. Newport News did not respond.
When Kea filed his letter requesting modification, he remained
under the medical care of his treating physician, Dr. Alvin Bryant.
Through counsel, he requested, on several occasions, that Dr. Bryant
provide a medical opinion as to whether he had reached maximum
medical improvement, as well as to the degree of permanent partial
disability to his right leg. Dr. Bryant did not respond.
Eventually, Kea’s attorney was replaced and, in April 2003, his
new counsel was successful in obtaining the written opinion from Dr.
Bryant assigning a permanent partial disability rating of 35% to Kea’s
right leg. Upon further inquiry, Dr. Bryant opined that Kea had
reached maximum medical improvement from his leg injury in
August 1996, but had experienced complications since then which
had required ongoing medical attention. Shortly thereafter, Kea pro-
vided the permanent disability rating to Newport News and requested
payment for permanent partial disability benefits under the Act. See
33 U.S.C.A. § 908(c) (West 2001). On May 14, 2003, Dr. Mark Ross
performed an independent medical examination of Kea at the request
of Newport News and assigned an impairment rating of 14% to Kea’s
right leg.
In August 2003, the parties executed a "Stipulation of Facts"
regarding the April 6, 1995, injury. The document set forth the tempo-
rary total disability and temporary partial disability benefits paid to
date, as well as a stipulation "[t]hat as a result of the injury the
4 KEA v. NEWPORT NEWS SHIPBUILDING
employee has sustained permanent partial disability effective
04/07/03 equivalent to 14% loss of use of the right lower extremity"
which, at Kea’s compensation rate, amounted to $19,768.09. J.A. 65.
The parties also agreed to "waive a formal hearing and consent to the
issuance of a formal order." J.A. 65. However, Newport News
advised the OWCP that it would not pay the stipulated amount
because it believed the case to be "time barred due to [the] order
entered by [OWCP] on 09/10/99." J.A. 63. For the same reason, New-
port News sought to withdraw the "Stipulation of Facts."
The OWCP disagreed and informed Newport News that although
a Compensation Order had been entered on September 10, 1999, Kea
had filed an additional claim for benefits on September 17, 1999,
which had been served upon Newport News ten days thereafter.
Because a claim had been timely filed subsequent to the Compensa-
tion Order, OWCP informed Newport News that the claim for addi-
tional compensation was not barred by the one-year limitations period
in 33 U.S.C.A. § 922. The parties were given until September 4,
2003, to notify OWCP "of any objection regarding the entry of an
Order based on the August 15, 2003 stipulations." J.A. 61.
In response, Newport News asserted that Kea’s letter was not a
valid § 922 request for modification or for additional benefits, but
rather amounted to a mere protective filing for future disability bene-
fits prohibited by our decision in I.T.O. Corp. of Va. v. Pettus, 73 F.3d
523 (4th Cir. 1996). A request for formal adjudication of the dispute
before an Administrative Law Judge ("ALJ") followed.
On January 18, 2005, the ALJ issued his Decision and Order deny-
ing additional benefits. The ALJ found that Kea’s September 17,
1999, letter to the OWCP did not operate to toll the statute of limita-
tions on a request for modification and, therefore, that Kea’s request
for additional compensation based on Dr. Bryant’s impairment rating
was untimely. The ALJ also denied Kea’s request for reconsideration.
The Board affirmed on appeal. Although the Board concluded that
the September 17, 1999, letter "state[d] a valid basis for modification,
as claimant sought a specific type of compensation, i.e., permanent
partial disability benefits," the Board believed that it was required to
deny the claim because "the relevant facts otherwise establish that
KEA v. NEWPORT NEWS SHIPBUILDING 5
th[e] letter constitutes an anticipatory filing" of the type we disap-
proved in Pettus. J.A. 171. In particular, the Board found it significant
that Kea requested that an informal conference not be scheduled,
which "belie[d] [an] intent to seek additional compensation" and "de-
liberately halted the administrative process," and that he failed to
"take any further action with regard to th[e] claim until he received
the report of Dr. Bryant in April 2003." J.A. 171 (internal quotation
marks omitted). The Board held that these "circumstances . . . estab-
lish[ed] the absence of any actual intent to pursue modification at that
time." J.A. 171.
II.
On appeal, we review the Board’s interpretation of the LHWCA de
novo. Because the Board is not a policymaking agency, no deference
is accorded its interpretations of the Act. See Potomac Elec. Power
Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980).
A.
The statutory provision for modifications of compensation awards
is found at 33 U.S.C.A. § 922, and provides as follows:
Upon his own initiative, or upon the application of any party
in interest . . ., on the ground of a change in condition or
because of a mistake in a determination of fact by the dep-
uty 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 rejec-
tion 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.A. § 922 (emphasis added); Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291, 294-95 (1995). The standard for requesting a
modification under § 922 is "most lenient." Pettus, 73 F.3d at 527. It
"need not meet [any] formal criteria," so long as it is sufficient to
6 KEA v. NEWPORT NEWS SHIPBUILDING
indicate a clear intention on the part of the claimant to seek further
compensation and "to trigger review before the one-year limitations
period expires." Id. at 526. At a minimum, "‘there must be some basis
for a reasonable person to conclude that a modification request has
been made.’" Greathouse v. Newport News Shipbuilding & Dry Dock
Co., 146 F.3d 224, 226 (4th Cir. 1998) (quoting Pettus, 73 F.3d at
527). Thus, we have held that the modification request "must manifest
an actual intention to seek compensation for a particular loss, and fil-
ings anticipating future losses are not sufficient to initiate § 922
review." Id. The request for benefits "is only the first step of review."
Pettus, 73 F.3d at 526. As we noted in Pettus, "[s]ection 919 pre-
scribes that ‘[w]ithin ten days after such claim is filed[,] the [district
director] . . . shall notify the employer and any other person whom
the [district director] considers an interested party, that a claim has
been filed.’" Id. at 526-27 (quoting 33 U.S.C.A. § 919(b)). Upon noti-
fication of the claim, "the district director ‘shall make or cause to be
made such investigations as he considers necessary in respect of the
claim, and upon application of any interested party shall order a hear-
ing thereon.’" Id. at 527 (quoting 33 U.S.C.A. § 919(c)).
B.
In this case, the Board held that Kea’s September 17, 1999, letter
was a valid request for additional compensation in modification, but
that the claim must nonetheless be denied because the letter consti-
tuted an "anticipatory filing" similar to those that we rejected in Pet-
tus and Greathouse. We disagree.
In Pettus, the claimant’s counsel sent two letters to the OWCP
within the one year period after a compensation order was filed and
the last payment made. The first letter "advised that I herewith make
demand for any and all benefits that may be due the . . . claimant pur-
suant to the [LHWCA]." 73 F.3d at 525 (emphasis added). After a
short period of additional temporary total disability, a second letter
was sent stating, "[p]lease be advised that we herewith make claim for
any and all benefits my client may be entitled to pursuant to the
[LHWCA]," but failing to even report the additional period of tempo-
rary total disability. Id. "Neither letter . . . induced any action on the
part of the district director." Id. at 527.
KEA v. NEWPORT NEWS SHIPBUILDING 7
More than a year after the last payment had been made pursuant
to the compensation order, the claimant obtained a physician’s report
documenting the intervening period of temporary total disability, sent
the report to the OWCP, and requested an informal conference for the
purpose of obtaining additional benefits. On appeal, we reversed the
Board’s determination that the letters constituted valid and timely
requests for modification and remanded with instructions to deny the
claim for additional benefits. We held that:
Pettus’ letters were too sparse to meet even this most lenient
of standards. They made no reference to any change in
claimant’s condition, to a mistake of fact in the earlier order,
to additional evidence concerning claimant’s disability, to
dissatisfaction with the earlier order, or to anything that
would alert a reasonable person that the earlier compensa-
tion award might warrant modification. The letters thus
failed to indicate any actual intention on the part of the
claimant to seek compensation for a particular loss, a factor
that is critical in assessing their sufficiency.
Id.
In Greathouse, we rejected a similar attempt to seek modification
of a compensation order. There, we held that the filing of a physi-
cian’s report which assigned an "expect[ed]" disability rating of 20%
was insufficient to "manifest[ ] an intent by Greathouse that he was
making a claim for additional compensation." Id. at 226. The report
did not "facially indicate . . . [an] intent to request a modification to
the original order" and "was submitted by [the employer] pursuant to
a regulatory requirement to provide such reports" to OWCP. Id. Addi-
tionally, the report, which "state[d] that the doctor expects [claimant]
to develop a 20% disability in the future," amounted to the type of
anticipatory filing we had rejected in Pettus. Id. In short, "neither [the
employer] nor the OWCP could have reasonably concluded that an
official medical report confirming the 20% disability would indicate
an intent by [claimant] to request further modification." Id.
In contrast to the anticipatory filings in Pettus and Greathouse, the
September 17, 1999, letter filed by Kea’s counsel was a valid request
for additional compensation in modification of the award. The letter
8 KEA v. NEWPORT NEWS SHIPBUILDING
clearly provided a "‘basis for a reasonable person to conclude that a
modification request ha[d] been made,’" Greathouse, 146 F.3d at 226
(quoting Pettus, 73 F.3d at 527), and "an actual intention to seek
compensation for a particular loss," id., i.e., permanent partial disabil-
ity benefits pursuant to 33 U.S.C.A. § 908.
First, the final payment of compensation was made to Kea on Sep-
tember 15, 1999, representing the balance of the temporary disability
benefits due under the Compensation Order. In contrast to the filings
in Pettus and Greathouse, the September 17, 1999, letter and accom-
panying Form LS-203 were filed by Kea’s counsel a mere seven days
after the award of temporary benefits was entered, and clearly noti-
fied the OWCP that Kea had also "sustained a permanent loss of
wage earning capacity as a result of th[e] injury," and that OWCP
should consider the letter "a request for additional compensation in
modification of the previous award." J.A. 57 (emphasis added). Thus,
we think it clearly "disclose[d] the requisite intent on the part of the
writer to seek compensation for [a] particular loss or injury," Pettus,
73 F.3d at 527 (emphasis added), and was much more than the vague
request to preserve a right to "any and all benefits" that might become
due in the future that was filed in Pettus, id. at 525. The letter was
also accompanied by a Form LS-203 which, while unnecessary to file
with a modification request, should have left a reasonable person in
no doubt that an additional "Claim for Compensation" was being
made for "permanent disability" benefits. J.A. 57a (emphasis added).
In sum, Kea’s September 17, 1999, filing with the OWCP was suf-
ficient to request modification under § 922 of the Act, for the purpose
of seeking the permanent partial disability benefits to which Kea was
entitled under the Act. Kea’s letter clearly placed the OWCP and
Newport News on notice of the additional claim for permanent dis-
ability benefits under the Act. The OWCP treated the notice as a
claim for additional benefits due under the Act and specifically
advised Newport News of the claim for additional benefits and of the
requirement that it controvert liability for such further benefits within
fourteen days. Newport News did not respond.
Second, we think the Board placed too much emphasis upon Kea’s
request that an informal conference not be scheduled on the modifica-
tion request and, in particular, upon the view that this failure to
KEA v. NEWPORT NEWS SHIPBUILDING 9
request an informal conference evidenced an intent to preserve Kea’s
right to recover for an anticipated disability yet to occur. There is no
requirement in the Act that an informal conference be sought or
scheduled in conjunction with a request for modification. On the con-
trary, the Act contemplates that the Director of the OWCP will notify
the employer that a claim has been filed, which was done in this case,
and "make or cause to be made such investigations as he considers
necessary in respect of the claim, and upon application of any inter-
ested party shall order a hearing thereon.’" Id. at 527 (quoting 33
U.S.C.A. § 919(c)). In addition, the evidence does not support a deter-
mination that the September 17, 1999, filing was made in anticipation
of a future disability. Kea’s filing conveys no intent to indefinitely
preserve the right to obtain compensation for a disability that might
occur in the future, nor will he ultimately obtain compensation for a
permanent disability that did not exist when he filed his modification
request. On the contrary, the Compensation Order rendered a final
determination that Kea’s temporary total disability had ended as of
August 27, 1995, and reflected the parties’ compromise agreement
that Newport News would pay an additional $1000 for temporary par-
tial disability for the period from August 28, 1995 to December 31,
1998. Given the severity of the injury and later stipulation that Kea
had sustained a 14% permanent disability to his right leg from the
work related injury, it seems everyone involved was or should have
been aware that the issue of existing permanent disability remained
to be resolved.
Stated simply, Kea is seeking benefits for permanent partial dis-
ability that existed as of the time he filed his valid request for modifi-
cation, but which was not adjudicated in the prior Compensation
Order and for which he had not obtained all of the evidentiary support
needed. While we do not condone the lack of diligence on the part of
Kea’s prior counsel in obtaining a medical opinion that Kea had
reached maximum medical improvement and suffered from a particu-
lar degree of permanent disability to his right leg as a result of the
accident, or the lack of attention on the part of his treating physician
in responding to the requests when made, this is not fatal to his claim.
And, there is plenty of blame to go around. Within days of resolving
the issue of temporary disability benefits due under the Act pursuant
to the Order, Newport News was notified that Kea was seeking modi-
fication of the Order for the purpose of pursuing his entitlement to
10 KEA v. NEWPORT NEWS SHIPBUILDING
permanent disability benefits as well, and was advised of its right to
controvert further liability, but it did nothing. And, as candidly admit-
ted by the OWCP’s counsel at oral argument, the OWCP also failed
to investigate and press adjudication of the matter. In short, after
Kea’s prior counsel timely filed his modification request preserving
Kea’s right to obtain benefits for the permanent disability that existed
at the time, everyone dropped the ball. That is unfortunate, but it does
not change the sufficiency of the modification request or render the
request untimely.
III.
For the foregoing reasons, we conclude that the Board erred in
holding that Kea’s § 922 modification request is time-barred and
remand for further proceedings on the merits of the claim.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED