Article by Anne M. Hammil Pasqua

In Wheeler v. Newport News Shipbuilding & Dry Dock Co., 637 F.3d 280 (4th Cir. 2011), the claimant’s request for modification pursuant to 33 U.S.C. § 922 was held untimely where the filing was within one year of the last medical payment by the employer but more than one year after her claim for permanent total disability was rejected and more than one year since the last disability payment. Section 22 provides in pertinent part:

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 determination 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 in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

The claimant initially injured her knees on May 26, 1992. She received medical treatment and was compensated for temporary total disability benefits, as well as a scheduled award. She subsequently sought total permanent disability benefits which was rejected by the Administrative Law Judge (ALJ) on August 14, 2002. The Benefits Review Board (Board) affirmed the decision on September 12, 2003. No further appeal was taken.

Following the denial of her claim for total permanent disability, the claimant continued to receive medical treatment authorized by the employer pursuant to Section 7. Section 7 requires the employer to provide medical treatment “for such period as the nature of the injury or the process of recovery may require.” There is no statute of limitations in Section 7. The claimant underwent a right knee replacement surgery in 2006 and a left knee surgery in 2008. On September 13, 2007, the claimant filed a second application to modify the scheduled permanent partial disability award. She was seeking payment of temporary total disability benefits. This was denied as untimely by the ALJ and Board as more than one year had elapsed since the rejection of her claim on September 12, 2003. The claimant appealed to the United States Court Of Appeals for the Fourth Circuit.

The issue before the court was whether medical payments issued to medical providers were compensation under 33 U.S.C. § 922 in determining the one-year statute of limitations applicable to a modification of an award. The claimant argued that the term “compensation” included voluntary medical payments by an employer for purposes of filing a request for modification of an order pursuant to Section 22. The Director of the Office of Workers’ Compensation Programs supported the claimant’s position.

The court looked to the definition of “compensation” and use of the term in the Act. Compensation is defined as the “money allowance payable to an employee or to his dependents as provided for in this Act, and includes funeral benefits provided therein.” However, the court questioned if this could be interpreted to include medical payments to the medical providers. The court noted that certain sections of the Act included medical within the use of the term “compensation” but in other sections medical was not included within the term. For example, Section 13 regarding the one-year statute of limitation for filing a claim references compensation but does not encompass medical payments. However under Section 4 which addresses liability for compensation, it clearly references medical within the meaning of compensation.

The court looked to the legislative history of Section 22. Section 22 initially allowed modification during the period of the term of the award only. The legislature considered no time limitation but this was rejected. The statute was amended to reflect the one-year period after the entry of the order for the award. The court explained:

Thus, Congress explicitly rejected the recommendation that modification be permitted with no time limitation, instead restricting modifications to a one-year time period after certain events. 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.

In consideration of the legislative history, the court found that the modification provision applied to the disability payments only, not medical. To hold otherwise would thwart the one-year statute of limitations given the lack of any time limitation on medical. As such, each time medical was requested and provided, the modification time period would be activated. As noted by the employer, this could result in a hindrance of the provision of medical benefits.

The court further noted to hold medical within meaning of compensation may result in the opposite effect of putting a one-year statute of limitation on the provision of medical benefits. The court found that it would be inconsistent with Section 7 to encompass medical within the meaning of “compensation” for purposes of Section 22. The court also highlighted that the claimant’s position conflicted with the Supreme Court’s decision in Marshall v. Pletz, 317 U.S. 383, 390-91, 63 S. Ct. 284, 87 L. Ed. 348 (1943) that a claim for medical benefits is not subject to the one-year statute pertaining to a claim for disability benefits under Section 13.

The Director and claimant argued that the exclusion of medical under Section 22 would result in claimants with worsening conditions that result in further treatment being precluded from seeking further disability benefits if more than one year passed since the last disability payment.

The court responded to this argument stating, “it is the nature of limitations periods to sometimes work seemingly harsh results.” The court could not “interpret Section 22 solely to ensure justice under the Act by effectively writing the limitations period out of the statute.”

The court affirmed the decision of the Benefits Review Board that the claimant’s modification was untimely.