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Workers' Comp – LHWCA – Award Modification Request – 'Anticipatory Filing'

A shipyard worker who injured his right leg on the job wins remand of his request for modification of an award under the Longshore & Harbor Workers’ Compensation Act, because his lawyer’s letter was sufficient to request modification under Sect. 922 of the Act, to seek permanent partial disability benefits, and the Benefits Review Board erred in holding that his request was time-barred.
Claimant received temporary total disability benefits from April 7, 1995 to Aug. 27, 1995, which were voluntarily paid by employer. On Sept. 10, 1999, the Office of Workers’ Compensation Programs issued an order awarding claimant additional benefits of $1,000, representing temporary partial disability benefits for the period from Aug. 28, 1995 to Dec. 31, 1998, as well as continued medical care. Employer paid the final comp payment for temporary disability on Sept. 15, 1999. Claimant subsequently sought benefits for permanent loss of wage earning capacity as a result of his injury.
The statutory provision for modifications of compensation awards is found at 33 U.S.C. Sect. 922. The provision states in part that a deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, issue a new compensation order which may modify the compensation or award compensation. The standard for requesting a modification under Sect. 922 is “most lenient” under I.T.O. Corp. of Va. v. Pettus, 73 F.3d 523 (4th Cir. 1996). It need not meet any formal criteria, so long as it is sufficient to 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. At a minimum, there must be some basis for a reasonable person to conclude that a modification request has been made.
In this case, the board held that claimant’s Sept. 17, 1999, letter was a valid request for additional compensation in modification, but that the claim must nonetheless be denied because the letter constituted an “anticipatory filing” similar to those we rejected in Pettus and Greathouse v. Newport News Shipbuilding & Dry Dock Co., 146 F.3d 224 (4th Cir. 1998). We disagree.
In contrast to the anticipatory filings in those two cases, the Sept. 17, 1999 letter filed by claimant’s counsel was a valid request for additional compensation in modification of the award. The letter clearly provided a basis for a reasonable person to conclude that a modification request had been made, and an actual intention to seek compensation for a particular loss, i.e., permanent partial disability benefits pursuant to 33 U.S.C. Sect. 908.
We conclude that the board erred in holding that claimant’s Sect. 922 modification request is time-barred and remand for further proceedings on the merits of the claim.
Petition for review granted; vacated and remanded.
Kea v. Newport News Shipbuilding & Dry Dock Co. (Traxler, J.) No. 06-1320, June 18, 2007; On Petition for Review; Gregory E. Camden for petitioner; Richard A. Seid, USDOL, for respondent. VLW 007-2-094, 10 pp.

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