Filed: June 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2576

Donald Greathouse,

Petitioner,

versus

Newport News Shipbuilding and Dry Dock Company, et al,

Respondents.

ORDER

The court amends its opinion filed June 5, 1998, as follows:

On page 4, second full paragraph, line 10 -- the word “intention” is corrected to read “intent.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD GREATHOUSE,

Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND

No. 96-2576

DRY DOCK COMPANY; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(94-260)

Argued: April 8, 1998

Decided: June 5, 1998

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and

CHAMBERS, United States District Judge for the Southern District

of West Virginia, sitting by designation.

_________________________________________________________________

Petition for review denied and order of the Board affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief

Judge Wilkinson and Judge Chambers joined.

_________________________________________________________________

COUNSEL

ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,

Norfolk, Virginia, for Petitioner. Lawrence Philip Postol, SEY-
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FARTH, SHAW, FAIRWEATHER & GERALDSON, Washington,

D.C., for Respondents.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

On November 4, 1991, Donald V. Greathouse, an employee of

Newport News Shipbuilding and Dry Dock Company ("Newport

News Shipbuilding"), filed a claim under the Longshore and Harbor

Workers' Compensation Act, 33 U.S.C. § 922, for additional workers' compensation benefits (beyond those awarded him in 1981) by

reason of a 1978 work-related injury. Following the 1978 injury and

a stipulation between Greathouse and Newport News Shipbuilding, a

consensual award of compensation was entered on October 5, 1981,

and Newport News Shipbuilding made its last payment on this award

on October 1, 1987. Because Greathouse's claim for additional compensation benefits was filed more than four years after the final payment on the original award was made, the Administrative Law Judge

("ALJ") denied benefits based on the one-year statute of limitations

contained in 33 U.S.C. § 922. The Benefits Review Board affirmed

by operation of law, and now we too affirm.

I

On August 26, 1978, Greathouse injured his left leg while working

on a valve at Newport News Shipbuilding. Following Greathouse's

claim for workers' compensation benefits under the Longshore Act,

Greathouse and Newport News Shipbuilding stipulated that Greathouse had been temporarily totally disabled by the injury, and that, as

a result of his injury, he had experienced a permanent 10% disability

of his leg. At the time of these stipulations, Greathouse knew that his

injury "would require surgery every few years to remove scar tissue

that would build up as a result of [the] injury." In accordance with the

stipulation, the Deputy Commissioner of the Office of Workers'

Compensation Programs entered a compensation order on October 5,

1981.

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Greathouse's disability became worse over time, and in 1984 and

1987, Newport News Shipbuilding voluntarily paid for periods of

temporary total disability. As well, it paid an additional 10% permanent partial disability over and beyond Greathouse's original 10% disability. Newport News Shipbuilding made its last compensation

payment to Greathouse under the 1981 award on October 1, 1987.

Several months later, on February 2, 1988, the Department of

Labor advised Greathouse that his right to claim additional compensation would be barred if he did not file a claim before October 1, 1988.

Greathouse filed no claim at that time.

On August 29, 1991, Greathouse had further surgery on his leg,

and shortly thereafter his doctor upgraded the extent of his permanent

disability to 30%. Accordingly, on November 4, 1991, over four years

after payment was last made on his original award of compensation,

Greathouse filed a claim for additional compensation based on the

continuing effects of his original injury. In response to an opposition

filed with the ALJ by Newport News Shipbuilding that the claim was

untimely, Greathouse noted that during the one-year period after the

last payment of compensation on the original award was made, Newport News Shipbuilding doctors submitted status reports to the Office

of Workers' Compensation Programs ("OWCP") about his condition.

Greathouse contended that one of these reports constituted a timely

claim. This report, written on September 23, 1987, and received at

OWCP shortly thereafter, stated:

Mr. Greathouse is do[ ]ing well. He is going to return to

work on 9/28/87 and I will check him again in 1 month. I

would expect that he will have an increase in his disability

to 20% as a result of developing arthritis.

Greathouse argued to the ALJ that this report constituted a claim and

that since it was submitted within the one-year period, it tolled the

statutory period in 33 U.S.C. § 922. The ALJ found that the doctor's

report was not a claim and therefore that Greathouse's later claim

filed on November 4, 1991, was untimely. Because the Benefits

Review Board failed to act on the appeal within a year, the ALJ's

judgment became final. See Pub. L. No. 104-134, 110 Stat. 1321-219

(1996).

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II

It is undisputed that the statutory deadline for Greathouse's request

for modification of his original award was October 1, 1988, one year

after the last payment of compensation was made to him under the

original award. Under 33 U.S.C. § 922, review of an existing compensation order may be conducted on the Deputy Commissioner's own

initiative or "upon the application of any party in interest," and this

review must be initiated "prior to one year after the date of the last

payment of compensation." 33 U.S.C. § 922. Since the Deputy Commissioner did not act on his own initiative, Greathouse was required

to file a claim within the one year following the October 1, 1987 payment to toll the limitations. He did so only if the doctor's report of

September 23, 1987, amounted to a claim.

Because the Longshore Act "must be liberally construed in conformance with its purpose," Northeast Marine Terminal Co. v. Caputo,

432 U.S. 249, 268 (1977), we have held that an application or claim

under § 922 need not be formal. It "need only be sufficient to trigger

review before the one-year limitations period expires." I.T.O. Corp.

v. Pettus, 73 F.3d 523, 526 (4th Cir. 1996). But "while a claimant's

application for modification need not meet any particular form, there

must be some basis for a reasonable person to conclude that a modification request has been made." Id. at 527. In this regard, a § 922

application must manifest an actual intent to seek compensation

for a particular loss, and filings anticipating future losses are not sufficient to initiate § 922 review. Id.

Greathouse argues that the Newport News Shipbuilding doctor's

report about his changing condition, which was filed within the one

year after his last payment of compensation was made, constituted a

claim satisfying the liberal standards of § 922. The resolution of this

case thus depends on whether this doctor's report made on September

23, 1987, was in fact a claim for additional compensation.

The doctor's report on which Greathouse relies stated that Greathouse was doing well and would be returning to work. It also

announced that the doctor would check Greathouse again in another

month. Finally it concluded, "I would expect that[Greathouse] will

have an increase in his disability to 20% as a result of developing

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arthritis." We do not believe that this language effectively manifests

an intent by Greathouse that he was making a claim for additional

compensation.

First, the doctor's comment does not facially indicate Greathouse's

intent to request a modification to the original order. Rather, it states

simply the doctor's opinion that "I would expect that [Greathouse]

will have an increase in his disability to 20% as a result of developing

arthritis." Second, the report was submitted by Newport News Shipbuilding pursuant to a regulatory requirement to provide such reports,

and not by Greathouse. Consequently, the report says nothing about

Greathouse's intent to request modification. Third, the report states

that the doctor expects Greathouse to develop a 20% disability in the

future. Under Pettus, however, anticipatory filings cannot manifest

the requisite intent. See 73 F.3d at 527. Finally, the report states that

Greathouse's disability would probably increase to 20%. At the time

of the report, however, Newport News Shipbuilding had already voluntarily paid Greathouse for a 20% disability. Therefore neither Newport News Shipbuilding nor the OWCP could have reasonably

concluded that an official medical report confirming the 20% disability would indicate an intent by Greathouse to request further modification.

Because the doctor's report submitted by Newport News Shipbuilding does not manifest an actual intent by Greathouse to make a

claim for modification of his original award, it cannot constitute a

claim under § 922. Greathouse's November 4, 1991 claim was therefore untimely. For these reasons, Greathouse's petition for review is

denied and the decision of the Benefits Review Board is affirmed.

IT IS SO ORDERED

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