UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60615 c/w 00-60093
POOL COMPANY and Carrier; SIGNAL MUTUAL INDEMNITY
OTIS L. COOPER; DIRECTOR, OFFICE OF WORKERS'
US DEPARTMENT OF LABOR,
Petitions For Review of an Order
of the Benefits Review Board
November 20, 2001
Before STEWART and PARKER, Circuit Judges,
and GOLDBERG,(1) Judge
Petitioners Pool Company ("Pool") and its
insurance carrier Signal Mutual Indemnity Association, Ltd. ("Signal"),
appeal the decision of the Benefits Review Board ("BRB") awarding respondent
Otis L. Cooper ("Cooper") temporary total disability benefits under the
Longshore and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C.
§§ 901 etseq. (1994). The petitioners allege that the
BRB erred by affirming the determinations of the administrative law judge
("ALJ") that Cooper's claim was timely and that he had not withdrawn it
in part, and by awarding attorney's fees. We affirm the decision of the
BRB with respect to the timeliness of the claim; affirm on other grounds
the award of attorney's fees; but remand so that the ALJ may reconsider
Cooper's waiver of a part of his claim and allow Pool and Signal to comment
I. FACTUAL AND PROCEDURAL BACKGROUND
Cooper began his employment at Pool in 1979
as a roustabout. In 1989, he sustained an injury to his right knee, which
required surgery. During his approximately six-week convalescence, Pool
paid him temporary total disability benefits under the LHWCA.(2)
Cooper's physician, Dr. William A. Morrison, a board-certified orthopedic
surgeon, diagnosed a fifteen percent permanent partial disability. Cooper
accordingly continued to receive permanent partial disability benefits
for his scheduled injury after he resumed work as a roustabout in 1990.
On August 20, 1992, Cooper re-injured his
right knee while working for Pool. He informed his supervisors of the mishap
and received authorization to seek medical attention. On August 28, 1992,
Dr. Morrison ordered a magnetic resonance imaging ("MRI") of Cooper's knee.
Dr. Morrison also referred Cooper to Dr. Gene Barrett, another board-certified
orthopedic surgeon, who informed Cooper that his anterior cruciate ligament
("ACL") required surgery. On November 24, 1992, Cooper ceased working,
and Pool voluntarily began to pay Cooper temporary total disability benefits.
At an unspecified date, Pool also began to pay Cooper permanent partial
disability benefits, apparently before any diagnosis of maximum medical
Dr. Barrett performed surgery on Cooper's
ACL on February 24, 1993. The surgery was at best a mixed success; Cooper
continued to complain of pain in his right knee, and several tests confirmed
poor quadriceps development in his right leg. On January 14, 1994, Dr.
Barrett resigned himself to the opinion that Cooper's condition would not
improve, but would remain at fifteen percent impairment. Dr. Barrett revised
his opinion on February 28, 1994, when he concluded that Cooper had attained
maximum medical improvement and would never work as a roustabout again,
assigned him a twenty percent impairment rating, and discharged him. As
of that same day, Pool ceased payment of temporary total disability benefits.
On April 22, 1994, Pool made the final payment of benefits for Cooper's
scheduled permanent partial disability, and also made a supplemental payment
for eighteen days of total temporary disability benefits. Around this time,
on his own initiative Cooper began looking for employment, and eventually
started work as a high school security guard on September 3, 1994. However,
Cooper returned to Dr. Barrett on several occasions throughout 1994, complaining
of knee pain.
On October 20, 1994, after Dr. Barrett suggested
that Cooper obtain a second opinion, Dr. Morrison again examined Cooper's
right knee, and recommended another MRI. On December 8, 1994, Dr. Barrett
diagnosed Cooper with a grade three or grade four chrondromalacia, a condition
whereby coating on the bone cracks and, at grade four, raw bone rubs on
raw bone. Shortly thereafter, on December 20, 1994, Dr. Barrett noted Cooper's
performance on a knee strength test as "pitiful."
On February 25, 1995, Cooper filed a form
LS-203, Notice of Disputed Claim, with the Office of Workers' Compensation
Programs ("OWCP") of the United States Department of Labor, seeking further
disability benefits. Pool received written notice of Cooper's claim from
the OWCP on March 15, 1995, and responded on March 22, 1995, by filing
a form LS-207, Notice of Controversion, disputing Cooper's entitlement
to additional benefits. On March 28, 1995, the OWCP informed Cooper of
the petitioners' assertions. Cooper never responded to the OWCP, and the
claim did not move forward until 1997.
Throughout 1995 and 1996, Cooper worked off
and on as a security guard, while continuing to be treated by Dr. Barrett
for his chronic knee pain. On January 31, 1997, Dr. Barrett performed an
arthroscopic procedure on Cooper's right knee that confirmed the diagnosis
of chrondromalacia and the necessity of reconstructive ACL surgery. In
particular, Dr. Barrett found that if Cooper underwent additional ACL surgery,
his impairment rating would decrease to around fifteen percent and potentially
he could resume his job at Pool, but that if he did not undergo the surgery,
his condition would decline to thirty percent impairment. Following the
arthroscopic procedure, Dr. Barrett placed Cooper on temporary total disability.
Cooper, who had been working as a security guard prior to the procedure,
did not return to that job until April 10, 1997.
Signal authorized ACL surgery and Dr. Barrett's
ongoing treatment of Cooper. However, Cooper pursued his claim against
the petitioners for additional monetary compensation. The ALJ conducted
a formal evidentiary hearing on December 5, 1997. In his decision and order
awarding benefits, the ALJ held that Cooper's claim was not time-barred;
that Cooper's condition had not stabilized; that consequently Cooper was
entitled to ACL surgery and to temporary total disability benefits until
such time as he did attain maximum medical improvement; and that Cooper
had been temporarily totally disabled from February 24, 1994 through September
2, 1994, and from January 31, 1997 through April 9, 1997, and was entitled
to benefits for those periods. In two supplemental decisions, the ALJ found
the petitioners liable for Cooper's attorney's fees pursuant to §
28(a) of the LHWCA, 33 U.S.C. § 928(a). On appeal, the BRB affirmed
the ALJ's decision, but it upheld the award of attorney's fees under §
28(b) of the LHWCA rather than under § 28(a).
In conformity with 33 U.S.C. § 921(c),
Pool and Signal now appeal the decision of the BRB. The Director of the
OWCP ("Director") has also filed a brief arguing that the BRB erred in
affirming the ALJ's award of benefits for the period of March 3, 1994 through
September 2, 1994, and erred by awarding attorneys fees under § 28(b)
rather than § 28(a) of the LHWCA, but urging affirmance in all other
A. Standard of Review
This Court conducts a de novo review of the
BRB's rulings of law, see H.B. Zachry Co. v. Quinones, 206
F.3d 474, 477 (5th Cir. 2000), owing them no deference because the BRB
is not a policymaking agency. Potomac Elec. Power Co. v. Director, OWCP,
449 U.S. 268, 278 n.18 (1980); Temporary Employment Services v. Trinity
Marine Group, Inc., 261 F.3d 456, 458 (5th Cir. 2001). However, we
do afford deference to the Director's interpretations of the LHWCA. Boudreaux
v. American Workover, Inc., 680 F.2d 1034, 1046 n.23 (5th Cir. 1982)
(en banc); H.B. Zachry, 206 F.3d at 478. As the Supreme Court has
recently made clear, the precise amount of deference that we owe to any
given interpretation by the Director "will depend 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." United States v.
Mead Corp., 533 U.S. __, 121 S. Ct. 2164, 2172 (2001) (quoting Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944)).(3)
With respect to disputed issues of fact, our
role is more narrowly circumscribed. Like the BRB, "we may not substitute
our judgment for that of the ALJ, nor reweigh or reappraise the evidence,
but may only determine whether evidence exists to support the ALJ's findings."
Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.
1997); see also 33 U.S.C. § 921(b)(3). Thus, we examine "whether
the BRB properly concluded that the ALJ's factual findings were supported
by substantial evidence on the record as a whole." James J. Flanagan
Stevedores, Inc. v. Gallagher, 219 F.3d 426, 429 (5th Cir. 2000). Substantial
evidence is "more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Director,
OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997)
(noting that substantial evidence is "more than a scintilla but less than
Finally, we will reverse the ALJ's award of
attorney's fees "only if it is arbitrary, capricious, an abuse of discretion,
or not in accordance with law." H.B. Zachary, 206 F.3d at 481.
B. Cooper's Claim Is Not Time-Barred
Pool and Signal argue that Cooper's claim
for additional benefits was time-barred under § 13(a) of the LHWCA,
Except as otherwise provided in this section,
the right to compensation for disability or death under this chapter shall
be barred unless a claim therefore [sic] is filed within one year after
the injury or death. If payment of compensation has been made without an
award on account of such injury or death, a claim may be filed within one
year after the date of the last payment.
33 U.S.C. § 913(a). Pool and Signal acknowledge
that Cooper received his last disability benefit payment on April 25, 1994,
and filed his LS-203 seeking additional compensation on February 25, 1995,
less than one year later. Therefore, it was facially timely under §
13(a). Nevertheless, the petitioners argue that this formally conforming
filing was infirm, on the grounds that Cooper failed to satisfy the one
year statute of limitations because he lacked a viable claim for benefits
at the time he filed the LS-203. They claim that when Cooper submitted
his LS-203, he was no longer eligible for temporary total disability benefits
because he was capable of working, and that they had already paid him the
full, uncontested amount of the permanent partial disability benefits to
which he was entitled for his scheduled injury. As Cooper had already received
all the compensation that he was due, his claim amounted to no more than
an impermissible protective filing against speculative future injuries.
In support of their reasoning, the petitioners cite I.T.O. Corp. of
Virginia v. Pettus, 73 F.3d 523 (4th Cir. 1996), and Ingalls Shipbuilding,
Inc. v. Asbestos Health Claimants, 17 F.3d 130 (5th Cir. 1994).
We find these arguments unconvincing for several
reasons. First, we do not think that the claim that Cooper filed on February
25, 1995 may be fairly characterized as "protective." Unlike the claimants
in Ingalls Shipbuilding, who had endured exposure to asbestos but
as yet suffered neither physical nor economic disability, see 17
F.3d at 135, Cooper's claim arose from a specific injury, which he identified
on the LS-203. Cooper was under the active medical care of Drs. Morrison
and Barrett in the months before he filed the LS-203. During several consultations
in late 1994, they advised him of the need for further tests, and for the
first time diagnosed the serious condition of chrondromalacia. Thus, there
exists substantial evidence from which the ALJ could infer that, at the
time Cooper filed his claim, he was undergoing continuing treatment for
his original injury in the hope of improving his condition, and he and
his physicians reasonably believed that he had not attained maximum medical
improvement after all. Indeed, the ALJ made precisely such a finding:
A medical report from Dr. Morrison shows that
Claimant was aware of the loss of his wage earning capacity on October
20, 1994. Since Claimant had to quit working as a security guard because
of his right knee injury, his capacity to earn a living was diminished.
Therefore, Claimant attained the requisite awareness mandated by the Act
that is required to filed a claim for compensation benefits.
Decision and Order--Awarding Benefits (June
5, 1998), at 12-13 (citation omitted). We think this conclusion is reasonable
and consistent with our prior decisions. See, e.g., Louisiana
Ins. Guar. Ass'n v. Abbott, 40 F.3d 122, 126 (5th Cir. 1994) ("One
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."). Even if we were
entitled to reweigh the evidence on this issue, we would not do so, as
Pool and Signal have offered no countervailing medical evidence whatsoever.(4)
Second, and relatedly, the ALJ awarded temporary
total disability benefits from February 24, 1994 to September 2, 1994.
While the petitioners attack this award on procedural grounds,
they never refute the basic assumption underlying this award--that Cooper
had not attained maximum medical improvement at the time he filed his claim.
Because the period of this award predates Cooper's filing of the LS-203,
facto, the claim cannot be deemed protective. Our decision does not
turn on this point, however; even had the ALJ awarded benefits only for
a period following February 25, 1995 (as he would have done if, for example,
Cooper had been able to work throughout all of 1994), we would be reluctant
to characterize Cooper's claim as protective, as it arose from a concrete
injury that predated the filing of his claim. While the petitioners assume
that a claim is viable only if it seeks compensation for a prior unpaid
period of disability, the Supreme Court implicitly held otherwise in Metropolitan
Stevedore Co. v. Rambo, 521 U.S. 121 (1997).
In Metropolitan Stevedore, the Court
considered whether a worker who has suffered a real work-related injury
but who is not presently "disabled" within the meaning of the LHWCA may
nevertheless obtain a compensation award, in anticipation of potential
future loss, in order to toll the statute of limitations. The Court answered
affirmatively, holding that "a worker is entitled to nominal compensation
when his work-related injury has not diminished his present wage-earning
capacity under current circumstances, but there is a significant potential
that the injury will cause diminished capacity under future conditions."
at 138. Of the two reasons that the Court gave for its ruling,(5)
the first concerned the impact of § 13(a) of the LHWCA:
Because an injured worker who has a basis
to anticipate wage loss in the future resulting from a combination of his
injury and job-market opportunities must nonetheless claim promptly [to
defeat the one year statute of limitations], it is likely that Congress
intended 'disability' to include the injury-related potential for future
wage loss. And because a losing claimant loses for all time after one year
from the denial or termination of benefits, it is equally likely that Congress
intended such a claimant to obtain some award of benefits in anticipation
of the future potential loss.
Id. at 129 (footnote omitted). The
Court also noted that a present award of nominal compensation was preferable
to the dubious practice of permitting protective filings, because "the
[latter] approach, unlike the [former], has the defect of putting off the
adjudication of every element of the worker's claim, including such matters
as the work-related nature of the injury, until long after the evidence
grows stale." Id. at 129 n.2.
The reasoning expressed in Metropolitan
Stevedore--requiring claims for compensation for a future disability
to be presently adjudicated, rather than deferring them until later--is
similar to the approach we took in Ingalls Shipbuilding, a case
on which the petitioners rely. In Ingalls Shipbuilding, we affirmed
the district court's grant of a writ of mandamus ordering the Director
to transfer to the Office of the Administrative Law Judge ("OALJ") for
hearing certain claims by workers exposed to asbestos, ninety percent of
whom were not presently experiencing any physical or economic disability.
17 F.3d at 135. The Director urged that such claims be held in abeyance,
but we declined to so order, noting that changes in the LHWCA had obviated
the necessity of filing protective claims. Id.. Pool and Signal's
selective and misleading focus on one sentence in Ingalls Shipbuilding,
wherein we stated that "nothing in the LHWCA . . . authorizes the filing
of protective claims or even recognizes their existence," id., ignores
the actual holding of the case--viz., "we hold that the protective claims
filed in the instant case enjoy no special status which would exempt them"
from being transferred to the OALJ for investigation and hearing. Id.
In short, "[a]ll claims filed with the Director are to be treated as active
claims," regardless of their characterization as protective or otherwise.
This is precisely what happened with Cooper's claim.
The petitioners' reliance on Pettus
is likewise unavailing. In that case, the Fourth Circuit held that two
letters briefly reciting a "demand for any and all benefits that may be
due" were too vague to constitute the filing of a claim to amend a compensation
order under the LHWCA. 73 F.3d at 527-28. The court observed that the OWCP
did not inform the employer of any claim and did not otherwise take any
action in response to the letters, because the letters were so sparse that
they "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. at 527. Thus,
easily distinguished on its facts from the instant case, where Cooper filed
a formal claim,(6) the OWCP processed it
as such, and Pool responded with a Notice of Controversion.(7)
While the Pettus court did remark that the claimant's additional
period of disability followed the first claim letter, and that "[s]uch
anticipatory filings cannot be thought of as initiating review,"
we do not read that observation as forming a cornerstone of the court's
analysis. To the extent that Pettus does stand for the proposition
that a claim may only seek compensation for an antecedent period of disability,
it is in direct conflict with the Supreme Court's holding in
Stevedore, and we must disregard it.
Finally, the petitioners' argument that they
had paid Cooper all the benefits to which he was entitled is not germane
to the issue of whether his claim satisfied the statute of limitations
established by § 13(a). As the Director notes, such an argument goes
to the merits of Cooper's claim, not to its timeliness. If, in fact, the
petitioners owed Cooper no further disability benefits because he had no
compensable disability for the relevant period and could not demonstrate
a significant potential of future compensable disability under Metropolitan
Stevedore, then the proper action for the ALJ would be to deny compensation
on the merits, not dismiss for failure to satisfy the statute of limitations.
Although Cooper's claim is perhaps unusual in that it did not move forward
for resolution for several years, we are aware of no authority that suggests
it should be disqualified from consideration on that basis alone. Cf.Intercounty
Constr. Corp. v. Walter, 422 U.S. 1, 3-12 (1975) (holding that a timely
filed claim for permanent disability benefits that remained dormant for
ten years, during part of which time the employer had paid temporary disability
benefits, was not time-barred despite one year statute of limitation in
§ 22 of LHWCA for amendment of compensation orders).
Accordingly, we hold that Cooper's claim for
disability benefits was not time-barred under § 13(a) of the LHWCA.
C. The ALJ Must Take Notice of Cooper's
Attempt to Withdraw a Portion of His
Claim, and Allow the Petitioners to Comment
The petitioners assert that even if Cooper's
claim is not time-barred, the ALJ erred by awarding temporary total disability
benefits for the period March 3, 1994 through September 2, 1994. They argue
that Cooper withdrew his claim to such benefits during the formal hearing
before the ALJ. At that hearing, Cooper's counsel became aware for the
first time of a letter sent by Thomas Brooks, a representative of Pool's
previous insurance carrier, to Cooper's previous counsel, Karl Wiedemann.
The letter, dated March 10, 1994, purported to memorialize a telephone
conversation between Mr. Brooks and Mr. Wiedemann on March 3, 1994, in
which they agreed that Cooper had attained maximum medical improvement
(albeit with a fifteen percent permanent partial disability) and
that Cooper was employable at other jobs and did not require the assistance
of an employment rehabilitation counselor. Upon learning of this letter,
Cooper's current counsel stated on the record that Cooper would withdraw
his claim for temporary total disability benefits from February 28, 1994,
to March 3, 1994. Contrary to the record evidence, the petitioners characterize
this withdrawal as covering March 3, 1994 to September 2, 1994. See
Petitioners' Brief, at 17; Petitioners' Reply Brief, at 7-8.
Cooper urges us to affirm the decision of
the BRB, which held that the concession of Cooper's counsel at the formal
hearing was without effect because he did not follow the procedure for
withdrawing a claim for benefits set forth in 20 C.F.R. § 702.225(a)
(1999). That provision permits an employee to withdraw his claim without
prejudice provided that he files a written request to do so with the district
director, and the director determines that withdrawal is for a proper purpose
and is in the claimant's best interest. See 20 C.F.R. § 702.225(a).
The Director questions whether the petitioners
accurately describe the dates for which Cooper waived a part of his claim.
Assuming that they are correct, the Director then argues that the BRB erred,
as such a concession would not constitute withdrawal of Cooper's claim,
but only an amendment of a part of it, and thus not implicate the formal
requirements of 20 C.F.R. § 702.225(a). The Director also argues that
the ALJ was empowered to disregard Cooper's amendment of his claim, and
award benefits for the period in question, but not without giving Pool
and Signal notice and allowing them to comment on the issue. Accordingly,
the Director urges that we remand so that the ALJ may reconsider the concession
of Cooper's counsel and allow Pool and Signal the opportunity to comment
Before we reach the issue of the dates for
which Cooper allegedly withdrew a part of his demand for benefits, we must
first consider whether he could even make such a concession at the hearing
before the ALJ, rather than by following the formal requirements of 20
C.F.R. § 702.225(a). In our resolution of this issue, which we believe
to be a matter of first impression for any court, we find the Director's
argument well considered and persuasively reasoned, and thus choose to
defer to it. We begin by noting that neither the LHWCA nor the agency regulations
define what constitutes a "claim" under the LHWCA. See 33 U.S.C.
§902; 20 C.F.R. § 701.301 (2001). A contextual reading of the
LHWCA and the relevant regulations, however, strongly suggests that the
term "claim" refers to the whole of the employee's demand for compensation,
rather than to specific categories of benefits allowed under the LHWCA.
By implication, only if an employee seeks to retract his claim in its entirety
is he obliged to follow the requirements of 20 C.F.R. § 702.225(a);
any lesser modification may be made less formally.
Section 13(a) of the LHWCA provides that "the
right to compensation for disability or death under this Act shall be barred
unless a claim therefore [sic] is filed." 33 U.S.C. § 913(a). Thus,
a claim is an assertion of a "right to compensation for disability or death
under this Act." The agency regulations similarly provide that "[c]laims
for compensation for disability or death shall be in writing and filed
with the district director." 20 C.F.R. § 702.221(a). A disabled employee
may initiate a claim by filing an LS-203 with the district director. Nowhere
on this form is the employee required to enumerate the specific category
of disability (e.g., temporary total, permanent partial, etc.) or list
the applicable dates for each disability. Nor is he required to file a
separate LS-203 for each category or term of disability. Instead, the claim
form merely requires the employee to describe the injury and incident,
suggesting that they, rather than the category of disability under the
LHWCA, are the determinants of a claim.
Furthermore, the fluid nature of the categorization
of disabilities militates against their treatment as discrete claims. A
single injury can and usually does give rise to several different disabilities,
since the LHWCA conceives of disabilities not merely in a medical sense,
but an economic one as well. See 33 U.S.C. § 902(10) (defining
"disability" as "incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or any other employment").
A claimant's disability may shift from one category to another upon a change
in the condition of either his health or the relevant labor market. It
is entirely conceivable that in the course of a hearing before an ALJ,
a claimant may discover that at the time he filed his claim he did not
correctly ascertain the timing of such shifts to the precise day. A static
definition of "claim," as pertaining only to a precise category of disability
for a fixed period of time, would deny the claimant the ability to modify
his claim informally in response to such a situation. At least for the
purposes of 20 C.F.R. § 702.225, we reject this definition of "claim"
in favor of a more holistic concept, whereby employees remain free to modify
the dates or categories of disability encompassed in their claim when they
seek compensation for a single injury, arising out of a single incident,
without being forced to jump over additional bureaucratic hurdles.
We are aware that in some cases, including
this one, our interpretation of "claim" may run counter to public policy
insofar as it makes it easier for an injured employee to waive his rights
to disability benefits to which he might otherwise be entitled. However,
we think that on balance a more flexible approach will redound to the benefit
of claimants and better fulfill the statutory purpose of the LHWCA, either
because they seek to modify their claims so as to recover greater
benefits, or simply because a speedier resolution of their claims will
result in quicker payment of benefits. All parties, including claimants,
have an interest in the expeditious resolution of claims for disability
In the instant case, Cooper's counsel apparently
concluded that Cooper was not entitled to total temporary disability benefits
for a brief period of less than five days, a small fraction of his total
alleged period of disability. It defies common sense to suggest that the
proper course at that point would be for the ALJ to suspend proceedings,
for Cooper to draft a formal letter to the district director stating his
intention to withdraw a claim to a fraction of the benefits that he sought,
and for all parties to await the ruling of the district director. Besides
wasting judicial resources, such a policy would delay the claimant's eventual
recovery of compensation, and subvert the flexibility, informality, and
efficiency that are the hallmark of the workers' compensation statutes.
Indus./Fed. Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 613
n.7 (1982) (observing that procedure in workmen's compensation law "is
generally summary and informal" and that "[t]he whole idea is to get away
from the cumbersome procedures and technicalities of pleading, and to reach
a right decision by the shortest and quickest possible route") (quoting
3 A. Larson, The Law of Workmen's Compensation § 78.10, p. 15-2 (1976));
also 33 U.S.C. § 923 ("In . . . conducting a hearing the deputy
commission or [BRB] shall not be bound by . . . technical or formal rules
of procedure, except as provided by this chapter; but may . . . conduct
such hearing in such manner as to best ascertain the rights of the parties.").(8)
Indeed, the very formality of the process prescribed in 20 C.F.R. §
702.225 strongly suggests that such procedures are limited to the withdrawal
of an entire claim. For these reasons, we find that 20 C.F.R. § 702.225(a)
applies only when an employee seeks to withdraw the entirety of his claim
for benefits, rather than to modify it with respect to dates or categories
Having concluded that the withdrawal provision
of 20 C.F.R. § 702.225(a) did not prevent Cooper from amending his
claim at the hearing, we must next consider whether and for what time period
he did so. As noted, there is a discrepancy in the version of the dates
for which Cooper allegedly withdrew his claim. The transcript of the formal
hearing before the ALJ is unambiguous:
[COOPER'S COUNSEL]: Since I did not have that
letter [from Mr. Brooks to Mr. Wiedemann], I will withdraw any claim for
TTD benefits during that period, up and to his conversation with Mr. Wiedemann.
[ALJ]: Well, what period would that be now?
[COOPER'S COUNSEL]: There would be just an
additional five days, from February 28, not even to March 3, '94.
[ALJ]: Oh, okay.
Transcript of ALJ Hearing (Dec. 5, 1997),
at 56. At no stage of the proceedings, including in their brief to the
BRB,(10) have the petitioners identified
any basis beyond this exchange for their asseveration that Cooper withdrew
his claim to benefits for the period from March 3, 1994 to September 2,
1994. Yet in their reply brief, the petitioners persist in characterizing
their position on this point as "uncontested." See Petitioners'
Reply Brief, at 7. In fact, the Director expressly challenged their version
of the dates in his brief, and thus their claim is in no way "uncontested."(11)See
Director's Brief, at 25 n.9. Oddly, however, Cooper conceded the accuracy
of the petitioners' version of the dates in his brief to the Court. See
Cooper's Brief, at 15-16. We are entitled, but not required, to treat this
concession as a binding judicial admission of fact. City Nat'l Bank
v. United States, 907 F.2d 536, 544 (5th Cir. 1990). While we are loath
to condone careless advocacy, we are even less willing to reward the petitioners
for making claims directly contradicted by the record evidence. Nor is
Cooper's admission, made in passing in the one short paragraph he devotes
to this issue, on par with the "overwhelming, consistent totality of the[
] circumstances" in which we previously held a judicial admission binding.
Stallard v. United States, 12 F.3d 489, 496 (5th Cir. 1994).
While the ALJ was likewise free not to treat
Cooper's concession as a binding judicial admission, we agree with the
Director that considerations of equity require that he should have so stated
and given the petitioners notice and opportunity to be heard. We therefore
remand so that the ALJ may resolve whether Cooper effectively withdraw
his claim to compensation for the period of February 28, 1994 to March
D. The BRB Erred By Reversing the ALJ's
Award of Attorney's Fees Under Section 28(a) of the LHWCA and Awarding
Them Instead Under Section 28(b)
The LHWCA provides two avenues by which a
successful claimant's attorney may recover attorney's fees from the employer
or carrier. Under § 28(a), the ALJ shall award attorney's fees "[i]f
the employer or carrier declines to pay any compensation on or before the
thirtieth day after receiving written notice of a claim for compensation
having been filed from the deputy commissioner, on the ground that there
is no liability for compensation . . . ," and the claimant prevails and
is represented by legal counsel. 33 U.S.C. § 928(a). Alternatively,
§ 28(b) provides that the ALJ shall award attorney's fees under the
If the employer or carrier pays or tenders
payment of compensation without an award . . . , and thereafter a controversy
develops over the amount of additional compensation, if any, to which the
employee may be entitled, the deputy commissioner or [BRB] shall set the
matter for an informal conference and following such conference . . . shall
recommend in writing a disposition of the controversy. If the employer
or carrier refuse to accept such written recommendation . . . they shall
pay or tender to the employee in writing the additional compensation, if
any, to which they believe the employee is entitled. If the employee refuses
to accept such payment or tender of compensation, and thereafter utilizes
the services of an attorney at law, and if the compensation thereafter
awarded is greater than the amount paid or tendered by the employer or
carrier, a reasonable attorney's fee based solely on the difference between
the amount awarded and the amount tendered or paid shall be awarded . .
33 U.S.C. § 928(b). In the instant case,
the ALJ awarded attorney's fees under § 28(a). The BRB affirmed the
award of attorney's fees on other grounds, finding that Pool's voluntary
payment of disability benefits from November 24, 1992 through February
28, 1994 precluded liability under § 28(a), and instead holding Pool
liable for such fees under § 28(b). Before this Court, the petitioners
disclaim liability for attorney's fees under either subsection. Cooper
conversely claims that Pool is liable under both sections. The Director
argues that we need not decide whether an award of attorney's fees is proper
under § 28(b), as the ALJ correctly awarded them under § 28(a).
It is clear that the BRB erred in awarding
attorney's fees under § 28(b). Pool did pay compensation without an
award; a controversy about the amount of additional compensation did subsequently
arise; and Cooper subsequently did obtain a compensation award in excess
of what Pool was willing to pay. However, as the parties concur, no informal
conference with the Department of Labor ever took place. Under the law
of our Circuit, that fact poses an absolute bar to an award of attorney's
fees under § 28(b). See FMC Corp. v. Perez, 128 F.3d
908, 910 (5th Cir. 1997); accord Staftex Staffing v. Director,
OWCP, 237 F.3d 404, 409 (5th Cir. 2000),
modified on rehearing,
237 F.3d 409 (5th Cir. 2000); James J. Flanagan Stevedores v. Director,
OWCP, 219 F.3d 426, 434-35 (5th Cir. 2000). Cooper variously argues
that Perez misconstrued the Ninth Circuit precedent on which it
was based, that Staftex Staffing applied an unduly strict construction
to § 928(b), that Flanagan Stevedores is factually distinct,
and that, in any event, an informal conference would have served no purpose
as Pool would not have complied with the recommendation. We see no need
to entertain these arguments, not only because of our obligation to follow
the established law of our Circuit, see Barber v. Johnson,
145 F.3d 234, 237 (5th Cir. 1998), but because we find that an award of
attorney's fees is proper under § 28(a).
Although initially Pool voluntarily paid disability
benefits to Cooper, it ceased making all such payments on April 25, 1994.
Cooper filed his claim for additional benefits on February 25, 1995, and
Pool received written notice thereof on March 15, 1995. Pool disclaimed
further liability and declined to pay any further benefits within thirty
days after receiving written notice of Cooper's claim, and is thus liable
for attorney's fees under the plain language of the statute. See
33 U.S.C. § 928(a) (awarding attorney's fees where "the employer or
carrier declines to pay any compensation on or before the thirtieth day
after receiving written notice of a claim for compensation having been
filed from the deputy commissioner, on the ground that there is no liability
for compensation"). We find no basis in any statute, regulation, or case
law for the BRB's holding that Pool's prior voluntary payment of benefits
precluded liability under § 28(a). Such payments preceded their receipt
of written notice of Cooper's claim, and are thus irrelevant to the question
of an award under § 28(a). We likewise attach no credence to Pool's
argument that an award of fees under § 28(a) is improper because Cooper's
claim was protective. As discussed supra, that assertion is incorrect
as a matter of fact and of law.
Accordingly, we affirm the award of attorney's
fees, but on different grounds than those cited by the BRB.
We affirm the decision of the BRB that Cooper's
claim was not time-barred; affirm the award of attorney's fees on grounds
other than those cited by the BRB; and reverse the decision of the BRB
affirming the ALJ's award of temporary total disability benefits for the
period from February 28, 1994 through March 3, 1994. We remand to the ALJ
with instructions to resolve, after giving petitioners notice and opportunity
to be heard, whether Cooper withdrew his claim for benefits for that same
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
1. Senior Judge, United
States Court of International Trade, sitting by designation.
2. The LHWCA distinguishes
disabilities binarily with respect to both their duration (permanent or
temporary) and their degree (partial or total). See 33 U.S.C. §
908. Consequently, there are four different categories of disability: permanent
total disability, temporary total disability, permanent partial disability,
and temporary partial disability. Louisiana Ins. Guar. Ass'n v. Abbott,
40 F.3d 122, 125 (5th Cir. 1994). The duration of disability is a medical
question, so an injured employee is considered temporarily disabled under
the LHWCA until he attains maximum medical improvement ("MMI"). Id.
at 126. However, because the degree of an employee's disability is primarily
an economic rather than a medical concept, "the availability of suitable
alternative employment [is what] distinguishes partial from total disability."
Thus, an employee is entitled to receive temporary total disability benefits,
in the form of two thirds of his average weekly wages, so long as his medical
condition is believed capable of improvement and he is unable to obtain
suitable alternative employment. See 33 U.S.C. § 908(b).
"The point of maximum medical improvement
represents the beginning of permanent, as opposed to temporary, disability
under the statutory scheme." Louisiana Ins., 40 F.3d at 126. At
that point, if suitable alternative employment is still unavailable, the
employee qualifies for permanent total disability benefits; otherwise,
the employee receives permanent partial disability benefits. If the employee's
injury involves a part of the body among those enumerated in 33 U.S.C.
§ 908(c)(1)-(20), (22), "the statute creates a conclusive presumption
of incapacity to earn wages and sets compensation at 66% of the claimant's
actual wage for a fixed number of weeks. When these types of scheduled
injuries occur, a claimant simply proves the relevant physical injury and
compensation follows for a finite period of time." Metropolitan Stevedore
Co. v. Rambo, 515 U.S. 291, 296 (1995) (citation omitted). If the employee
suffers only partial loss or partial loss of use of the body part, the
duration of benefits for a scheduled injury is reduced by a coefficient
equal to the percentage of impairment. See 33 U.S.C. § 908(c)(19);
also Stevens v. Director, OWCP, 909 F.2d 1256, 1258 n.1 (9th
Cir. 1990). If the employee has a non-scheduled injury, he receives two-thirds
of the difference between his pre-injury wages and his current wages, "payable
during the continuance of the disability." 33 U.S.C. § 908(c)(21).
3. In Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
the Supreme Court held that both court and agency must defer to Congress's
unambiguous intent, but if a statute that the agency administers is silent
or ambiguous with respect to a particular issue, the court must
defer to the agency's reasonable construction of the statute, even if the
court's own reading would lead to a different conclusion. 467 U.S. at 842-45.
clarified that Chevron's expansive conception of judicial deference
to an administrative agency's legal interpretation applies only when "Congress
delegated authority to the agency generally to make rules carrying the
force of law, and . . . the agency interpretation claiming deference
was promulgated in the exercise of that authority." 121 S. Ct. at 2171
Our recognition that we owe deference to the
Director's interpretations of the LHWCA preceded the Supreme Court's Chevron
decision, and thus was not predicated thereon. See, e.g.,Alford v. American
Bridge Div., United States Steel Corp., 642 F.2d 807, 809 n.2 (1981),
in part on other grounds on reh'g, 655 F.2d 86 (5th Cir. 1981); Boudreaux,
680 F.2d at 1046 n.23. In our LHWCA cases post-Chevron, we have
consistently acknowledged a measure of deference for the Director's interpretations
of the LHWCA, but where we have discussed
Chevron in this context,
we have tended to avoid giving full Chevron deference. See, e.g.,Phillips
v. Marine Concrete Structures, 877 F.2d 1231, 1234-35 (5th Cir. 1989)
(court owes "deference" to an agency's reasonable interpretation);
Stevedores Co. v. Director, OWCP, 931 F.2d 331, 333 (5th Cir. 1991)
(court affords "considerable weight" to Director's interpretation);
Shipbuilding, Inc. v. Asbestos Health Claimants, 17 F.3d 130, 134 n.11
(5th Cir. 1994) (court "generally will give judicial deference" to agency's
reasonable statutory interpretation). In other cases we have found the
issue moot. See, e.g., H.B. Zachry, 206 F.3d at 478-79 (declining
to address Director's claim to Chevron deference because applicable
statute was clear on its face); Sketoe v. Exxon Co, USA, 188 F.3d
596, 597 (5th Cir. 1999) (rejecting Director's interpretation that was
unsupported by regulations, rulings, or other indications that it was "the
product of agency deliberation and judgment"); Henry v. Coordinated
Caribbean Transp., 204 F.3d 609, 610, 613 (5th Cir. 2000) (dispelling
Director's invocation of Chevron deference because his interpretation
"has no statutory or other support). However, in one case decided shortly
before Mead, we did state that the Director's interpretations of
the Act merit full
Chevron deference. See Ceres Marine
Terminal v. Hinton, 243 F.3d 222, 227 (5th Cir. 2001) ("The Director's
interpretations of the Act . . . are accepted as controlling, unless they
are unreasonable . . . or contrary to clearly expressed legislative intent.").
And in his brief in the instant case, the Director lays claim to such deference.
Director's Brief, at 14.
Whatever the characterization of our previous
posture, it is now clear that when the Director advances interpretations
of the LHWCA in litigation briefs, such interpretations merit not Chevron
deference, but Skidmore deference. See Mead, 121 S.
Ct. at 2177 n.19 (rejecting dissent's argument that agency interpretation
not promulgated in exercise of its rulemaking authority, but subsequently
reaffirmed in agency's litigation briefs, warranted Chevron difference).
Indeed, the Supreme Court suggested as much in Metropolitan Stevedore
Co. v. Rambo, 521 U.S. 121, 136 (1997) ("[T]he Director's reasonable
interpretation of the [LHWCA] brings at least some added persuasive force
to our conclusion, see, e.g., Skidmore v. Swift & Co.
. . . ."); accord Neeley v. BRB, 139 F.3d 276, 281 (1st Cir.
4. We are at a loss to
comprehend how the petitioners can assert that "the date Claimant attained
MMI was not even a realm of dispute at the ALJ hearing" and then suggest
that the ALJ became "an advocate from the bench" because he held that Cooper
had not attained maximum medical improvement. See Petitioners' Reply,
at 6. The majority of the testimony and exhibits adduced at the hearing
concerned the continuing state of Cooper's health. Moreover, a claim of
temporary disability necessarily subsumes a claim that the employee has
not attained maximum medical improvement.
5. Because Metropolitan
Stevedore involved a non-scheduled injury permanent partial disability
claimant, the second consideration on which the Court based its decision
was a statutory provision applicable only to that category of disability
and to temporary partial disabilities. See 521 U.S. at 130-34. Compensation
for these categories of injuries is based on the difference between the
employee's pre-injury wages and his post-injury wages. See 33 U.S.C.
§§ 908(c)(21), (e). While compensation under these classes of
disability is only available to those claimants that presently hold inferior
employment, compensation for a temporary total disability is available
only to those claimants with no present employment. As the Supreme
Court recognized in Metropolitan Stevedore, an injured worker's
present employment situation can change for the worse. Thus, disability
is not merely "a product of the worker's injury and present market conditions,
but . . . a potential product of injury and market opportunities in the
future," see id. at 132, for, we believe, all categories
of disability for which the claimant's recovery is tied to his employment
6. We note in passing that
even an informal claim suffices to toll the statute of limitations so long
as it "discloses an intention to assert a right to compensation." Fireman's
Fund Ins. Co. v. Bergeron, 493 F.2d 545, 547 (5th Cir. 1974) (quoting
& Gulf Stevedores v. Donovan, 279 F.2d 76, 78 (5th Cir. 1960).
7. Pool and Signal distort
the meaning and significance of the letter of March 28, 1995, that the
OWCP sent to Cooper after he filed his LS-203. Contrary to the petitioners'
assertions, this letter did not state that the LS-203 "did not seek
any relief for additional workers' compensation benefits," see Petitioners'
Brief, at 9, or that "the OWCP was not able to discern the nature of his
claim(s) at that time." Id. at 14. As the Director points out, and
as the plain text of the letter makes clear, it merely informed Cooper
that Pool disputed his claim for benefits and that he needed to supply
additional information to substantiate his claim. See J. Ex. 10.
8. In dicta, the Supreme
Court has observed that in proceedings under the LHWCA "'considerable liberality
is usually shown in allowing amendment of pleadings to correct . . . defects,'
unless the 'effect is one of undue surprise or prejudice to the opposing
party.'" U.S. Indus./Fed. Sheet Metal, 455 U.S. at 613 n.7 (1982)
(quoting 3 Larson, Law of Workmen's Compensation § 78.10, p. 15-11).
Particularly in cases such as in this one, where the effect of the amendment
is to reduce the liability of the employer and carrier, there is no danger
9. The petitioners also
argue in passing that Cooper never claimed benefits for any period prior
to the filing of the LS-203, until the morning of the ALJ hearing. However,
they offer no evidence to support their claim of ambush, aside from the
comments of their own counsel at the hearing.
10. The BRB did not address
the discrepancy in dates in the brief portion of its opinion dedicated
to this issue.
11. This is not the only
instance in this case where the petitioners' counsel have misstated the
facts or the law. While the Court hesitates to impute any willfulness to
such actions, excessive misrepresentations test the bounds of tolerable
human error and call into question counsel's adherence to even a minimal