Newport News Shipbuilding and Dry Dock Company v.  Director, Office of Workers’ Compensation Programs; Clyde Moody

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
v. No. 05-1495 
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS; CLYDE
MOODY,
Respondents. 
 NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
v. No. 05-2168 
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS; CLYDE
MOODY,
Respondents. 
On Petitions for Review of Orders of
the Benefits Review Board.
(05-0424)
Argued: September 19, 2006
Decided: December 13, 2006
Before MICHAEL and GREGORY, Circuit Judges,
and Thomas E. JOHNSTON, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Petitions denied by published opinion. Judge Michael wrote the opin-
ion, in which Judge Gregory and Judge Johnston joined.
COUNSEL
ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER
& HEDRICK, P.C., Newport News, Virginia, for Petitioner. Gregory
Edward Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P., Nor-
folk, Virginia, for Respondents. ON BRIEF: Charlene Parker Brown,
MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for
Respondent Clyde Moody.
OPINION
MICHAEL, Circuit Judge:
Newport News Shipbuilding and Dry Dock Company (Newport
News) petitions for review of orders issued under the Longshore and
Harbor Workers’ Compensation Act (the Act) by the Benefits Review
Board (BRB) of the United States Department of Labor. The BRB
orders affirmed the decisions of an administrative law judge that (1)
determined the medical cause of a knee ailment suffered by Clyde
Moody, a Newport News employee; (2) ordered the company to pro-
vide appropriate benefits; and (3) awarded Moody attorney’s fees
under § 28 of the Act, 33 U.S.C. § 928. Because we reject Newport
News’s arguments that the medical causation issue was not ripe and
that attorney’s fees were not warranted, we deny the petitions for
review.
I.
Moody has worked as a welder and mechanic for Newport News
for over thirty years. His work requires a great deal of crawling and
climbing. In February 1999, while on the job, Moody bumped and
injured his left knee as he crawled to the bottom of a tank. He was
treated at the shipyard clinic and placed on light duty "for awhile."
J.A. 26. Moody did not claim compensation for this injury. On July
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5, 2001, he injured his right knee while crawling in a tank. As a result
of this injury, he underwent arthroscopic surgery on October 3, 2001,
and collected temporary total disability benefits until January 7, 2002.
In May 2002, several months after returning to work, Moody reported
pain in his left knee during an office visit with his orthopedic special-
ist, Dr. Thomas Stiles, who ordered an MRI. The MRI revealed a
meniscal tear in the left knee, and Dr. Stiles informed Moody on July
8, 2002, that surgery was needed. Later that month Moody sought
authorization for the procedure from Newport News. He maintained
"that the left knee [condition was] a compensable consequence of his
[July 5, 2001,] right knee injury." S.J.A. 3. Moody’s position was
based on Dr. Stiles’s opinion that Moody’s "problem with his left
knee . . . [was] a result of putting extra pressure and stress on his left
knee following his right knee injury and surgery." J.A. 56. Newport
News contested Moody’s right to compensation, claiming that the
injury resulted from the February 1999 incident rather than from
weakness of the right knee after July 2001. Moody engaged a lawyer
and continued to pursue compensation under the 2001 claim. Newport
News’s position regarding the date of the underlying injury was of
concern to Moody because the company contended that any claim for
disability benefits under the 1999 injury would be barred by the one-
year statute of limitations in 33 U.S.C. § 913(a). (A claim for medical
benefits would not be subject to a time bar, however. 33 U.S.C.
§ 907.)
In October 2002 a claims examiner in the U.S. Department of
Labor’s Office of Workers’ Compensation Programs (OWCP) held an
informal conference with the parties to consider the issue of medical
causation (or the date of the underlying injury). After reviewing medi-
cal records, the claims examiner "recommend[ed] that [Moody’s]
present left knee problems be accepted as a result of the July 5, 2001
right knee injury." J.A. 110. In other words, the examiner recom-
mended that compensation for the left knee ailment be paid under the
earlier 2001 claim. Newport News rejected this recommendation. The
company advised the OWCP’s district director in March 2003 that it
would "pay for the left knee medical treatment under the 1999 left
knee injury, but not under the 2001 right knee injury." J.A. 102. In
the meantime, Newport News refused to pay bills submitted by Dr.
Stiles for non-surgical treatment of Moody’s left knee condition. A
company claims manager advised Dr. Stiles’s office that "this matter
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will be further litigated." J.A. 107. The company’s position forced
Moody to request a hearing before an ALJ on the issue of medical
causation concerning his left knee condition.
Newport News argued before the ALJ that the causation issue was
not ripe for adjudication because Moody had not suffered a disability
resulting in lost time from work. The ALJ rejected this argument and
found that "[t]he left knee impairment is a consequence of the work-
related right knee injury." J.A. 149. The company was ordered "to
provide appropriate benefits, as needed." Id. The ALJ also awarded
Moody attorney’s fees under 33 U.S.C. § 928(a). The BRB affirmed
the ALJ’s decisions, but noted that Moody could not collect a fee
award for obtaining compensation for temporary total disability until
he underwent surgery and was temporarily disabled.
Newport News petitions for review of the ripeness determination
and the award of attorney’s fees. Both matters present legal questions
that we review de novo. Va. Int’l Terminals, Inc. v. Edwards, 398
F.3d 313, 315 (4th Cir. 2005).
II.
Newport News argues that the medical causation issue was not ripe
for adjudication by the agency because Moody was in essence making
a claim for future disability benefits. The traditional ripeness doctrine,
which derives in part from Article III limitations on judicial power,
does not apply to administrative decisionmakers. Chavez v. Dir.,
OWCP, 961 F.2d 1409, 1414 (9th Cir. 1992). Nevertheless, because
"[a]dministrative adjudicators have an interest in avoiding many of
the problems of prematurity and abstractness presented by unripe
claims," these adjudicators need the leeway to "abstain[ ] on the basis
of ripeness." Id. (quotation marks and citation omitted). A separate
ripeness analysis has not been developed for administrative decision-
making. We therefore adopt Newport News’s suggestion and apply
the traditional analysis, a practice routinely followed by federal courts
in reviewing whether an issue was ripe for decision by an administra-
tive tribunal. Id.; Ingalls Shipbldg., Inc. v. Dir., OWCP, 102 F.3d
1385, 1388 n.4 (5th Cir. 1996).
Under the traditional analysis we determine whether an issue is ripe
for resolution by evaluating the issue’s fitness for decision and "the
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hardship to the parties of withholding . . . consideration." Abbott Labs.
v. Gardner, 387 U.S. 136, 149 (1967). Typically, an issue is fit for
resolution if it is purely legal and does not depend on undeveloped
facts. Id. In assessing hardship, we examine the immediacy and
degree of hardship the party seeking relief will suffer if adjudication
is delayed. W. Va. Highlands Conservancy v. Babbitt, 161 F.3d 797,
801 (4th Cir. 1998).
Newport News argues that there will be no disability until Moody
submits to surgery and that the agency adjudicators "could not possi-
bly decide the issue of [disability] causation ahead of time." Petr.’s
Br. 12. Specifically, the company says that the factual predicate to
determine medical causation did not "fully exist" when the ALJ and
BRB decided the issue. Id. We agree with Moody that all of the facts
necessary to determine the cause of his left knee ailment were placed
into evidence at the hearing conducted by the ALJ. The record
included medical opinions from qualified orthopedic specialists as
well as Moody’s pertinent medical records. This evidence addressed
the issue of medical causation, and there is solid evidence to support
the ALJ’s finding that Moody’s "left knee impairment is a conse-
quence of the work-related right knee disability" caused by the 2001
injury. J.A. 149. No subsequent facts would change the ALJ’s deter-
mination of causation. The only unknown facts are the date Moody
will undergo surgery and the duration of his resulting disability. Nei-
ther of these facts will affect Newport News’s liability to pay appro-
priate compensation benefits.
The prospect of hardship to Moody supports the decision of the
agency judges to determine the cause of his left knee ailment prior to
surgery. The record at the time suggested that if the condition had
been attributed to Moody’s 1999 left knee injury, the company would
have asserted the statute of limitations as a defense against a request
for disability compensation. The perceived risk of receiving no com-
pensation if he was required to miss work during recuperation could
have impacted Moody’s decision about whether to undergo surgery.
The timely determination of medical causation afforded Moody the
latitude to make this decision with certain knowledge of his compen-
sation prospects during any period of temporary disability.
For these reasons, the issue of medical causation was ripe for deter-
mination by the agency adjudicators.
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III.
Newport News also argues that the ALJ and BRB had no basis
under the governing statute, 33 U.S.C. § 928, for requiring it to pay
attorney’s fees in this case. Under § 928, attorney’s fees may be
assessed against an employer in two circumstances. First, § 928(a)
provides for a fee award when the employer refuses to pay any com-
pensation after receiving written notice of a claim, and the claimant
thereafter successfully prosecutes the claim with the assistance of a
lawyer. Second, § 928(b) provides for a fee award when the employer
initially pays compensation voluntarily, and a dispute later arises
about whether the employee is entitled to additional compensation.
We agree with Newport News that Moody is not entitled to attor-
ney’s fees under § 928(a). This section authorizes a fee award only if
"the employer . . . declines to pay any compensation on or before the
thirtieth day after receiving written notice of a claim for compensation
having been filed from the deputy commissioner . . . ." 33 U.S.C.
§ 928(a) (emphasis added). Moody’s left knee condition has been
determined to derive from the July 5, 2001, injury to his right knee.
He filed a claim for the 2001 injury, and Newport News voluntarily
paid certain compensation for that injury. When "the employer ini-
tially pays compensation voluntarily after the filing of a claim, but
then refuses a [later] request for [additional] benefits on the same
claim," § 928(a) does not allow the employee attorney’s fees for
obtaining any additional benefits. Edwards, 398 F.3d at 317. Any
compensation Moody receives as a result of the recent proceedings to
determine causation would constitute additional compensation under
his preexisting 2001 claim, and he must therefore look to § 928(b) to
recover fees incurred in obtaining such additional compensation.
Accordingly, Moody does not qualify for a fee award under § 928(a).
We conclude that Moody is entitled to attorney’s fees under
§ 928(b). This section’s threshold requirement is met: Newport News
"pa[id] . . . compensation without an award" under the 2001 claim,
"and thereafter a controversy developed over the amount of additional
compensation, if any, to which the employee [Moody] may be enti-
tled" for his left knee ailment. 33 U.S.C. § 928(b). To qualify for a
fee award under § 928(b), Moody must show that four additional
events occurred: (1) "the deputy commissioner . . . set the matter for
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an informal conference" with the parties; (2) the deputy commissioner
"recommend[ed] in writing a disposition of the controversy;" (3) "the
employer . . . refuse[d] to accept such written recommendation, within
fourteen days after its receipt;" and (4) the employee used the services
of a lawyer to obtain a greater award of compensation than the
employer was willing to pay. 33 U.S.C. § 928(b). These four events
have occurred.
First, an OWCP claims examiner held an informal conference with
the parties on October 8, 2002, to consider the issue of causation with
respect to Moody’s left knee condition. Second, on October 31, 2002,
the claims examiner recommended in writing that Moody’s "present
left knee problems be accepted as a result of the July 5, 2001 right
knee injury." J.A. 110. Third, Newport News did not accept this rec-
ommendation within fourteen days of its receipt. Indeed, after receiv-
ing the recommendation, Newport News refused to pay medical bills
submitted by Dr. Stiles for his non-surgical treatment of Moody’s left
knee. The company advised Dr. Stiles’s office that the matter would
be "further litigated." J.A. 107. Later, the company informed the
OWCP’s district director that it would "pay for the left knee medical
treatment under the 1999 left knee injury, but not under the 2001 right
knee injury." J.A. 102. The company thus maintained its initial posi-
tion that the statute of limitations excused it from paying Moody any
compensation for temporary total disability following surgery. Fourth,
Moody used the services of a lawyer to obtain a greater award of
compensation after Newport News did not tender any payment within
the fourteen days it had to respond to the claims examiner’s recom-
mendation. Moody’s lawyer requested that the medical causation
issue be set for hearing before an ALJ. A hearing was necessary
because Moody had no assurance about payment for his medical treat-
ment or compensation for temporary total disability during recupera-
tion from the recommended surgery. The ALJ found that Moody’s
left knee condition was caused by the July 5, 2001, injury to his right
knee and ordered Newport News "to provide appropriate benefits, as
needed." J.A. 149. The BRB affirmed. The administrative orders
assured Moody of payment for his medical expenses and disability
compensation during recovery from surgery. These benefits amounted
to a greater award than Moody was able to achieve prior to requesting
a hearing. See Dir., OWCP v. Baca, 927 F.2d 1122, 1124 (10th Cir.
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1991) (an employee receives a "greater award" when he gains a
greater economic benefit from the administrative litigation).
Because Moody satisfies all of the requirements of § 928(b), he is
entitled to an award of the attorney’s fees he incurred in litigating the
medical causation issue. We agree with the BRB, however, that
Moody may not collect a fee award with respect to compensation for
temporary total disability until he undergoes surgery and is temporar-
ily disabled. See Adkins v. Kentland Elkhorn Coal Corp., 109 F.3d
307, 308 (6th Cir. 1997).
IV.
For the foregoing reasons, we conclude that the medical causation
issue was ripe for consideration when it was litigated before the ALJ
and BRB. We also conclude that Moody was entitled to the award of
attorney’s fees under 33 U.S.C. § 928(b) for additional compensation
received under the 2001 claim. The petitions for review are therefore
denied.
PETITIONS DENIED
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