The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers.  See 33 U.S.C. § 922 (1984).

Section 22 of the LHWCA 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] issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.”  Id.

In the case before the court, the employer paid compensation for a scheduled knee injury.  The claimant sought permanent total disability benefits, but was denied by an administrative law judge.  On September 12, 2003, the Benefits Review Board upheld the ALJ’s denial, and by that time the employer had paid all compensation owed for the claimant’s scheduled loss.  The employer did, however, continue to pay medical benefits.  Four years later, the claimant requested modification of her PPD award.  Although filed four years after the last compensation payment, the modification request was filed within one year of the last payment made by the employer to the claimant’s medical providers.   The issue was whether the voluntary payment to the medical provider was a payment of “compensation” for modification purposes.

The Fourth Circuit determined that Section 22 contains a statute of limitations, and Congress deliberately included the one-year time limitation within Section 22.  A litigant cannot ignore the reality of that time limitation by citing the “general purpose” of the “extraordinarily broad” modification provision.  Further, if Section 22’s use of “compensation” included the payment of medical benefits, then the one-year limitation contained in the statute could be extended indefinitely because each payment of medical care would start the running of the one year period anew.  Obviously, this would not give Section 22 the effect intended by Congress, as evidenced by legislative history.  Instead, concluded the Fourth Circuit, “interpreting ‘payment of compensation’ in Section 22 [and all other uses of the term “compensation” in Section 22] to exclude an employer’s payment of medical benefits is most harmonious with the purpose of both the statute’s limitations period and the Act as a whole.”

Wheeler v. Newport News Shipbuilding and Dry Dock Co., — F.3d —-, 2011 WL 541805 (4^th Cir. 2011).

Note: Although the decision is well reasoned with respect to the statute of limitations contained in Section 22, there are problems with references made to other provisions of the LHWCA containing the word “compensation.”  For example, the Fourth Circuit attaches an inaccurate parenthetical to its citation of 33 U.S.C. § 906(a) stating that “compensation” under that section includes medical benefits.  The parenthetical conflicts with a statement made by the Supreme Court in Marshall v.  Pletz, 317 U.S. 383 (1943).  In Pletz, the Court listed the various sections of the LHWCA where “compensation” dealt solely with “money compensation” and not medical services.  Id. at 390-91.  Although Section 6(a) mentions both “compensation” and Section 7 medical benefits, the Court noted that Section 7 specifically contrasted compensation from medical aid.  Id. at 390.  Under Section 7, the director can suspend “compensation” if a claimant refuses to submit to medical treatment.  Id.  Considering the fact that the present Section 6(a) and Section 7 contain substantially similar provisions, the Fourth Circuit’s parenthetical appears incorrect.  A better statement regarding Pletzis contained in the BRB’s earlier decision in Wheeler.