UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGINIA INTERNATIONAL TERMINALS,
INCORPORATED,
Petitioner,
v.
No. 96-2312
MELVIN MOORE; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(95-775)
Argued: October 30, 1997
Decided: July 29, 1999
Before WIDENER, ERVIN, and WILKINS, Circuit Judges.
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Reversed by unpublished per curiam opinion.
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COUNSEL
ARGUED: F. Nash Bilisoly, IV, VANDEVENTER, BLACK, MER-
EDITH & MARTIN, L.L.P., Norfolk, Virginia, for Petitioner. John
Harlow Klein, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia,
for Respondents. ON BRIEF: Kelly O. Stokes, VANDEVENTER,
BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for
Petitioner. Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Respondents.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Virginia International Terminals, Incorporated (VIT) petitions for
review of a final order of the Benefits Review Board (BRB) awarding
benefits to Moore under the Longshore and Harbor Workers' Com-
pensation Act (LHWCA), see 33 U.S.C.A. §§ 901-50 (West 1986 &
Supp. 1999), claiming that Moore's request for benefits is barred by
the applicable statute of limitations. We reverse.
I.
On November 10, 1986, during the course of his employment with
VIT, Moore fell from a vehicle he was operating and fractured both
of his wrists. Following the accident, Moore received temporary total
and temporary partial disability benefits for various periods. Moore
also received permanent partial disability benefits for 109.2 weeks for
a scheduled loss of 35% of his upper extremities. The last of these
payments was made to Moore on September 4, 1990. Moore
attempted to return to his work with VIT, but found himself unable
to perform his prior duties.
Moore did not file a formal claim for additional LHWCA benefits
within one year of the final disability payment; however, medical
records from his treating physician were filed within the one-year
period. Thereafter, Moore sought temporary total disability benefits
under the LHWCA. After conducting an evidentiary hearing, an
administrative law judge held that Moore's claim was timely, that
Moore had established a prima facie case of total disability, and that
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VIT had failed to meet its burden of showing the existence of suitable
alternative employment realistically available to Moore. VIT timely
appealed this decision to the BRB, and by operation of law the BRB
is deemed to have affirmed that decision without order on September
12, 1996. VIT now petitions this court for review.
II.
Section 22 of the LHWCA governs modifications of existing com-
pensation orders. It provides:
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, ... review a compensation case ... in accor-
dance with the procedure prescribed in respect of claims in
section 919 of this title, and in accordance with such section
issue a new compensation order which may terminate, con-
tinue, reinstate, increase, or decrease such compensation, or
award compensation.
33 U.S.C.A. § 922 (emphasis added). Section 22 places a one-year
statute of limitations on the power of the deputy commissioner to
review an existing compensation order. See Intercounty Constr. Corp.
v. Walter, 422 U.S. 1, 10-11 (1975); I.T.O. Corp. of Va. v. Pettus, 73
F.3d 523, 526 (4th Cir. 1996). Moore last received payment on Sep-
tember 4, 1990; therefore, in order to be timely, his request for modi-
fication would have to have been made within one year of that date.
It is undisputed that the only arguable "filing" made prior to that date
was that of a treating physician forwarding copies of Moore's medical
records.
Our decision concerning whether these medical records were ade-
quate to constitute a timely request for modification is controlled by
our decision in Pettus. In Pettus, a LHWCA claimant's attorney had
sent two letters within the one-year period advising that claimant was
demanding "`any and all benefits'" that might be due the claimant
pursuant to the LHWCA. Pettus, 73 F.3d at 527. We held these letters
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were not adequate to constitute a request for modification of benefits,
reasoning:
A request for modification constitutes the commencement of
review only if it is sufficient to initiate the process required
under § 922, a process whose next step must occur within
ten days of claimant's request for modification. 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.
Here, Pettus' letters were too sparse to meet even this
most lenient of standards. They made no reference to any
change in claimant's condition, to a mistake of fact in the
earlier order, to additional evidence concerning claimant's
disability, to dissatisfaction with the earlier order, or to any-
thing that would alert a reasonable person that the earlier
compensation award might warrant modification. The letters
thus 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. Our conclusion in Pettus that even letters requesting benefits to
which a claimant is due may be inadequate to begin the review pro-
cess if they are insufficient to put a reasonable person on notice that
review is sought dictates a determination that the medical records
here, unaccompanied by any request for review, are insufficient.
Because Moore failed to request a modification of benefits within
the one-year period following September 4, 1990, we conclude that
his subsequent request was untimely.* Therefore, we grant the peti-
tion for review and reverse the decision of the BRB.
REVERSED
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*Although the parties assume that the present situation is governed by
§ 922 applicable to modifications of existing orders, we note that our
analysis would be the same if the standards applicable to requests for
benefits were at issue. See 33 U.S.C.A.§ 913(a); Pettus, 73 F.3d at 528
n.3.
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