Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
TOPIC 21
Topic 21
Generally
Olsen v. Triple A Machine Shop, Inc., (No. C01-3354 BZ
(ADR)) (N. Dist. of CA.) (Dec. 14, 2001)(Unpublished) (Order Granting Defendant
Triple A Machine Shop's Motion To Dismiss)(Final Judgment entered December 17,
2001).
In Olsen, the Northern District of California ruled that it does not
have jurisdiction over a LHWCA Modification Request. The district court, citing
Thompson v. Potashnick Construction Co., 812 F.2d 574 (9th Cir.
1987), noted that it only has jurisdiction to enforce orders in relation to
LHWCA matters.
Topic 21.1.1 Review Of Compensation
Order—Composition and authority of BRB
Schultz v. United States Marine Corps/MWR,
(Unpublished)(BRB No. 03-0473)(March 17, 2004).
A motion to correct clerical errors in a settlement order, such as where an ALJ
merely recited the wrong monetary figures to which the parties had agreed, does
not toll the time for filling a notice of appeal of the underlying compensation
order.
Topic 21.1.2 Review of Compensation Order—Composition and Authority of BRB—Grant of Authority
Jackson v. Newport News Shipbuilding & Dry Dock Co.,
___ BRBS ___ (BRB No. 03-0629)(December 20, 2004).
This is an Order on Motion for Reconsideration of 38 BRBS 39 (2004)(In order
for a “tender” to be valid pursuant to Section 28(b), such that employer can
avoid fee liability, it must be “an offer to pay, expressed in writing, without
any conditions attached thereto.” As employer’s purported tenders were
conditioned on claimant’s accepting a stipulation, the Board held that employer
did not tender compensation within the meaning of Section 28(b). In
the Motion for Reconsideration, the employer contended that the Board’s
decision was contrary to its unpublished decisions in Boyd v. Newport News
Shipbuilding & Dry Dock Co., (BRB No . 02-0607)(May 22, 2003), and Jenkins
v. Newport News Shipbuilding & Dry Dock Co. (BRB No. 01-0870)(Aug. 8,
2002).
The Board rejected this contention, finding that the just cited cases were
factually distinguishable from the case now before it. Citing to Lopez
v. Southern Stevedores, 23 BRBS 295, 300 n. 2 (1990), the Board noted at Boyd
and Jenkins demonstrate the soundness of the principle that unpublished
Board decisions generally should not be cited or relied upon by the parties in
presenting their cases. “[A]s the Board’s decisions therein are based on
specific facts, whereas the decision in Jackson resolved an issue of law.
That unpublished cases are more readily available does not lessen the validity
of the Board’s statement in Lopez.”
Topic 21.1.2 Review Of Compensation
Order--Grant of Authority
Meinert v. Fraser, 37 BRBS 164 (2003).
Here the employer appeals to the Board (to review under its abuse of discretion
standard) the Vocational Rehabilitation Plan approved by the District Director.
The employer contended that vocational rehabilitation is unnecessary because
the claimant retains a wage-earning capacity on the open market and that upon
completion of the plan, the claimant will have a lower earning capacity in
motorcycle repair than that demonstrated by employer's labor market survey. The
Employer averred that the evidence it developed after the implementation of the
plan demonstrates the validity of its contentions. The employer also contends
that motorcycle repair was merely an interest of the claimant's and that is why
retraining in this area was pursued.
After reviewing the pertinent regulations (20 C.F.R. §§ 702.501-702.508) and
the statute (Section 39(c)(2), the Board noted that neither the LHWCA nor the
regulations provides an explicit role for an employer in the formulation of a
rehabilitation plan. The Board held that the employer has not shown that the
district director had abused her discretion in implementing the plan, as it
failed to demonstrate that the district director did not comply with the
regulatory criteria. The Board found that the counselor had adequately
documented the wages that the claimant would earn upon completion of the
program, as the claimant had no earnings at the time the plan was documented.
It further noted that the counselor had documented his placement efforts prior
to recommending retraining courses, and he demonstrated how the claimant's
vocational background and aptitude testing fit well with the new skills
claimant will obtain at the technical college. Further, the Board noted that
"[I]t is self-evident that a claimant is more likely to succeed at a plan
if, in addition to its being suitable for him, it involves a vocation in which
he is interested."
Employer sought to enter into evidence information which it alleges would
establish that the claimant had a current wage-earning capacity without the
retraining program that was at least equal to what the claimant would earn upon
his completion of the plan. The Board declined to allow the information to be
entered into evidence stating that "Assuming arguendo, the validity
of employer's contention, employer cannot demonstrate an abuse of the district
director's discretion where the plan is otherwise fully documented according to
the regulatory criteria."
The Board also declined to address the employer's contentions regarding its
potential liability for disability benefits during the retraining period. It
stated that, "This issue is one that is properly presented to an [ALJ] in
the first instance, and employer is entitled to a full evidentiary hearing on
this issue."
Topic 21.1.2 Review of Compensation
Order--Grant of Authority
Hymel v. McDermott, Inc., 37 BRBS 160 (2003).
Here the claimant sued his employer under the LHWCA as well as in state court
against his employer and others, for negligence and intentional exposure to
toxic substances in the work place. Executive officers of the employer during
the claimant's employment (who were named as defendants in the state court
suit) moved to intervene in the LHWCA claim. The ALJ denied the motion to
intervene, finding that the issue raised by the interveners was not "in
respect of "a compensation claim pursuant to Section 19(a) of the LHWCA.
In a subsequent Decision and Order, the ALJ granted the claimant's motion to
dismiss the claimant's claim with prejudice, pursuant to Section 33(g), as he
settled a part of his state tort claim for less than his compensation
entitlement without employer's prior written approval. The interveners filed an
appeal with the Board. The Board dismissed the appeal, on the ground that as
claimant's claim was no longer pending, the interveners were not adversely or
aggrieved by the denial of their motion to intervene. Interveners then filed a
motion for reconsideration of the Board's dismissal.
The Board granted the motion for reconsideration, finding that the interveners
are adversely affected or aggrieved by the ALJ's denial of their petition. The
Board noted that Section 21(b)(3) of the LHWCA states that the Board is
authorized to hear and determine appeals that raise a "substantial
question of law or fact taken by a party in interest from decisions with respect
to claims of employees" under the LHWCA. However, turning to the merits of
the appeal, the Board found that the ALJ's decision was legally correct. The
Board noted Fifth Circuit case law to support the ALJ's determination
that he was without jurisdiction to rule on interveners' entitlement to tort
immunity in a state court suit, as that issue was not essential to resolving
issues related to the claimant's claim for compensation under the LHWCA. The
Board went on to note that even if the claimant's claim had still been pending,
the interveners' claim, while based on Section 33(i) of the LHWCA, is
independent of any issue concerning the claimant's entitlement to compensation
and/or medical benefits and the party liable for such. Section 33(i) does not
provide the right of intervention.
Topic 21.2.1 Board Appellate
Procedure—Advisory Opinions Not Permissible
Jackson v. Newport News Shipbuilding &
Dry Dock Co., ___ BRBS ___ (BRB No. 03-0629)(December 20, 2004).
This is an Order on Motion for Reconsideration of 38 BRBS 39 (2004)(In order
for a “tender” to be valid pursuant to Section 28(b), such that employer can
avoid fee liability, it must be “an offer to pay, expressed in writing, without
any conditions attached thereto.” As employer’s purported tenders were
conditioned on claimant’s accepting a stipulation, the Board held that employer
did not tender compensation within the meaning of Section 28(b). In
the Motion for Reconsideration, the employer contended that the Board’s
decision was contrary to its unpublished decisions in Boyd v. Newport News
Shipbuilding & Dry Dock Co., (BRB No . 02-0607)(May 22, 2003), and Jenkins
v. Newport News Shipbuilding & Dry Dock Co. (BRB No. 01-0870)(Aug. 8,
2002).
The Board rejected this contention, finding that the just cited cases were
factually distinguishable from the case now before it. Citing to Lopez
v. Southern Stevedores, 23 BRBS 295, 300 n. 2 (1990), the Board noted at Boyd
and Jenkins demonstrate the soundness of the principle that unpublished
Board decisions generally should not be cited or relied upon by the parties in
presenting their cases. “[A]s the Board’s decisions therein are based on
specific facts, whereas the decision in Jackson resolved an issue of law.
That unpublished cases are more readily available does not lessen the validity
of the Board’s statement in Lopez.”
Topic 21.2.2 Review of Compensation Order––New
Issue Raised on Appeal
Ravalli v. Pasha Maritime Services, 36 BRBS 91 (2002)
(2002); previously reported at 36 BRBS 47 (2002).
This is a denial of a Motion for Reconsideration. Previously the Board adopted
the construction of Section 22 given by the Second Circuit in Spitalieri
v. Universal Maritime Services, 226 F.3d 167 (2d Cir. 2000), cert.
denied, 532 U.S. 1007 (2001) (Termination of benefits is a
"decrease" of benefits; held, effective date of termination could be
date of change in condition.). The Board found Motion for Reconsideration of
several issues not properly before it as these issues had not been addressed at
most recent appeal and there was settled "law of the case."
Topic 21.2.5 Review of Compensation Order—Interlocutory
Appeals
Hallman v. CSX Transportation, Inc., (Unpublished
Order)(BRB No. 04-0731)(November 23, 2004).
This bifurcated coverage issue claim involves the employer’s appeal of an ALJ’s
finding that there was situs and status, and that there would be a subsequent
decision and order on other issues. The Board first noted the Supreme
Court’s three-pronged test to determine whether an order that does not finally
resolve litigation is nonetheless appealable. Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (‘collateral order
doctrine”). The Board then granted the claimant’s motion to dismiss the
employer’s appeal, noting that the issues of status and situs were not
collateral to the merits of the action and could be addressed once a final
decision and order granting or denying benefits was issued. Additionally
the Board was not persuaded by the employer’s argument that the issues
presented are important and should be decided now, because the ALJ’s decisions
have created uncertainty for its risk management procedures, i.e. liability
under the LHWCA versus under the FELA. Finally, the Board rejected the
employer’s contention that it should decide this appeal because the Board has
previously decided interlocutory appeals of coverage issues. “The fact
that the Board has the authority to decide interlocutory appeals does not
require that we do so as it is desirable to avoid piecemeal review.”
Topic 21.2.8 Review Of Compensation Order--Direct
Appeals from District Director to Board
Meinert v. Fraser, 37 BRBS 164 (2003).
Here the employer appeals to the Board (to review under its abuse of discretion
standard) the Vocational Rehabilitation Plan approved by the District Director.
The employer contended that vocational rehabilitation is unnecessary because
the claimant retains a wage-earning capacity on the open market and that upon
completion of the plan, the claimant will have a lower earning capacity in
motorcycle repair than that demonstrated by employer's labor market survey. The
Employer averred that the evidence it developed after the implementation of the
plan demonstrates the validity of its contentions. The employer also contends
that motorcycle repair was merely an interest of the claimant's and that is why
retraining in this area was pursued.
After reviewing the pertinent regulations (20 C.F.R. §§ 702.501-702.508) and
the statute (Section 39(c)(2), the Board noted that neither the LHWCA nor the
regulations provides an explicit role for an employer in the formulation of a
rehabilitation plan. The Board held that the employer has not shown that the
district director had abused her discretion in implementing the plan, as it
failed to demonstrate that the district director did not comply with the
regulatory criteria. The Board found that the counselor had adequately
documented the wages that the claimant would earn upon completion of the
program, as the claimant had no earnings at the time the plan was documented.
It further noted that the counselor had documented his placement efforts prior
to recommending retraining courses, and he demonstrated how the claimant's
vocational background and aptitude testing fit well with the new skills
claimant will obtain at the technical college. Further, the Board noted that
"[I]t is self-evident that a claimant is more likely to succeed at a plan
if, in addition to its being suitable for him, it involves a vocation in which
he is interested."
Employer sought to enter into evidence information which it alleges would
establish that the claimant had a current wage-earning capacity without the
retraining program that was at least equal to what the claimant would earn upon
his completion of the plan. The Board declined to allow the information to be
entered into evidence stating that "Assuming arguendo, the validity
of employer's contention, employer cannot demonstrate an abuse of the district
director's discretion where the plan is otherwise fully documented according to
the regulatory criteria."
The Board also declined to address the employer's contentions regarding its
potential liability for disability benefits during the retraining period. It
stated that, "This issue is one that is properly presented to an [ALJ] in
the first instance, and employer is entitled to a full evidentiary hearing on
this issue."
Topic
21.2.12
Review of Compensation Order––Law of the Case
Ravalli v. Pasha Maritime Services, 36 BRBS 91
(2002).
This is a denial of a Motion for Reconsideration. Previously the Board adopted
the construction of Section 22 given by the Second Circuit in Spitalieri
v. Universal Maritime Services, 226 F.3d 167 (2d Cir. 2000), cert.
denied, 532 U.S. 1007 (2001) (Termination of benefits is a
"decrease" of benefits; held, effective date of termination could be
date of change in condition.). The Board found Motion for Reconsideration of
several issues not properly before it as these issues had not been addressed at
most recent appeal and there was settled "law of the case."
Topic 21.3 Review By U.S.
Courts of Appeals
Announcement—Approriations Act Limits Funding For
Participation By Solicitor in Circuit Court Appeals In Longshore Cases
The Consolidated Appropriations Act, 2005 (H.R. 4818) has been signed into law
by President Bush and again contains language limiting the Solicitor’s
participation in circuit court appeals to situations involving defense of the
special fund per Director, OWCP v. Newport News Shipbuilding, 115 S.Ct.
1278 (1995). The legislation also continues the one-year mandate for the
Board to decide Longshore decisions.
Topic 21.3 Review By U.S.
Courts of Appeals
Holmes v. Director, OWCP, (Unpublished) (No. 01-1761)
(4th Cir. June 12, 2003).
The claimant here had filed a claim for an alleged work-related psychological
injury which was denied by the ALJ. This was appealed to the Board which
"affirmed" the ALJ's decision by operation of law pursuant to Public
Law 106-554. However, shortly thereafter the Board issued a decision reversing
and remanding the ALJ's decision. Several days after that, the Board issued
another order withdrawing its reversal. Claimant next filed a motion for
reconsideration which was denied. Claimant then filed an appeal to the Fourth
Circuit which found that by the time the appeal to the circuit was filed,
it was untimely and therefore the court lacked jurisdiction.
Topic 21.3 Review by U.S.
Courts of Appeals
Newport News Shipbuilding & Dry Dock Co. v. Rowsey,
(No. 01-1995) (4th Cir. February 12, 2002) (Unpublished.).
Here the claimant was denied benefits by the ALJ and appealed to the Board.
Noting that the official record had not been forwarded to its office, the Board
stated that it could not consider the merits of the appeal without the record.
The Board therefore dismissed the appeal and remanded it to OWCP for
reconstruction of the record. Employer filed a petition for judicial review
arguing that the ALJ's decision was automatically affirmed pursuant to the
Omnibus Consolidated Recisions and Appropriations Act. The Director moved that
Employer's appeal should be dismissed as Newport News is not an aggrieved party
under the LHWCA. The Fourth Circuit agreed, noting that "Because
the ALJ denied [Claimant's] claim for workers' compensation benefits and
Newport News has not been required to pay benefits, Newport News has made no
showing that it has suffered an injury in fact."
Topic 21.3 Review By U.S.
Courts of Appeals
Norfolk Shipbuilding & Drydock Corp. v. Campbell,
(Unpublished) (No. 02-1701)(4th Cir. January 30, 2003).
After the last opinion was issued Norfolk filed a notice of appeal to the Board
seeking a final order so that it could file a petition for review with the Fourth
Circuit. Without waiting for a final order, Norfolk then filed a petition
for review with the circuit court. Noting that the petition for review predated
the Board's final order, the Fourth Circuit found that it had no
jurisdiction and dismissed the petition. "[A]dministrative decisions under
the LHWCA are only reviewable by this court if they constitute a final order of
the Board." 33 U.S.C. § 921(c) (2000).
Topic 21.3 Review By U.S.
Courts of Appeals
Holmes v. Director, OWCP, (Unpublished) (No. 01-1761)
(4th Cir. June 12, 2003).
The claimant here had filed a claim for an alleged work-related psychological
injury which was denied by the ALJ. This was appealed to the Board which
“affirmed” the ALJ’s decision by operation of law pursuant to Public Law
106-554. However, shortly thereafter the Board issued a decision
reversing and remanding the ALJ’s decision. Several days after that, the
Board issued another order withdrawing its reversal. Claimant next filed
a motion for reconsideration which was denied. Claimant then filed an
appeal to the Fourth Circuit which found that by the time the appeal to
the circuit was filed, it was untimely and therefore the court lacked
jurisdiction.
Topic 21.3.2 Review of Compensation Order—Review By U.S. Courts of Appeals—Process of Appeals
Gulf Best Electric, Inc. v. Methe, ___ F.3d ___, (No.
03-60749) (5th Cir. Nov. 1, 2004). [ED. NOTE:
This case was changed from Unpublished status to Published on December 27,
2004.]
The Fifth Circuit found that it lacked jurisdiction to consider the
claimant’s claim that the Board erred in excluding employer contributions to
his retirement and health insurance funds when calculating his average weekly
wage (AWW). It explained that the claimant had styled his petition a
“Cross-Application to Enforce Benefits Review Board Order” but that, in
substance, the petition was a simply a request that that the court reverse the
Board’s order, and thus allow inclusion of the employer’s $3.47 per hour
contributions to retirement and health insurance funds in calculation of
AWW. “Because the claimant raises this issue as an affirmative challenge
to the BRB’s decision rather than as a defense to his employer’s appeal, his
‘cross-application’ is properly characterized as a petition for review and,
thus is time-barred by Section 921©.
The Fifth Circuit further noted that the claimant contended that,
because he has filed a petition for modification of the compensation award with
DOL pursuant to Section 22, it would be a “waste of this court’s time and
resources” to dismiss his petition, only to have the claim eventually “work its
way back through the system.” The court noted that the
claimant “cites no authority for the proposition that we may ignore the time
requirements for appeal imposed by an agency’s organic statute for the sake of
equity or judicial efficiency” and therefore it dismissed the petition.
In this matter the court also affirmed the Board’s decision that the date on which
treatment actually ceased was the correct MMI date, noting that “[o]ne cannot
say that a patient has reached the point at which no further medical
improvement is possible until such treatment has been completed—even if, in
retrospect, it turns out not to have been effective.” Abbott v. La.
Ins. Guaranty Assn., 40 F.3d at 126 (5th Cir. 1994).
Finally, the court upheld the Board’s application of Section 10(a) rather than
10(c) as the ALJ had found. Noting that the claimant worked 47.4 weeks,
or 237 days, or 91 percent of the workdays available in the year before his
injury, the court stated that while it has not adopted a bright-line test for
the applicability of Section 10(a) as the Ninth Circuit has (75 percent
or more to be under Section 10(a)), “it is clear to us that [the claimant’s]
record of 91 percent satisfies the requirement of § 910(a) that the claimant
have worked ‘substantially the whole of the year immediately preceding the
injury.’” The court addressed the ALJ’s concerns of the “fairness” of
possible overcompensation as his rationale for applying Section 10(c) by noting
its prior position in Ingalls Shipbuilding v. Wooley, 204 F.3d 616 (5th
Cir. 2000), that the calculation mandated by Section 10(a) aims at a
theoretical approximation of what a claimant could ideally have expected to
earn… had he worked every available work day in the year.
“Over-compensation alone does not usually justify applying § 910(c) when §
910(a) or (b) may be applied.”
Topic 21.4.1 Timeliness of Appeal—Appeal to
Benefits Review Board
Ferro v. Holt Cargo Systems, (Unpublished)(BRB Nos.
04-0226 and 0400226A)(May 28, 2004).
The Board held that the Director was essentially estopped from contending that
he is not bound by an underlying award where the Director's brief did not
challenge the award of permanent total benefits. See Director, OWCP v. Coos
Head Lumber & Plywood Co., 194 F.3d 1032, 33 BRBS 131 (CRT)(9th Cir.
1998). However, the Board did find that there was no effective award
in-as-much-as there was no proof that a copy had been sent by registered or
certified mail. See Section 19(e), 21(a): 20 C.F.R. §§ 702.349, 702.350;
see generally Jeffboat, Inc. v. Mann, 875 F.2d 660, 22 BRBS 79(CRT)(7th
Cir. 1989).
Topic 21.5 Review of
Compensation Order–Compliance
[ED. NOTE: The Following Black Lung case is
included since the Black Lung Act draws on the LHWCA procedural provisions. 30
U.S.C. § 932(a).]
Nowlin v. Eastern Associated Coal Corp, 266 F. Supp.
2d 502 (N.D. W. Va. May 13, 2003) [Order on Motion], see also 331 F.
Supp. 2d 465 (Aug. 12, 2004).
In the enforcement issue case, the federal district court addressed the
enforceability of awards under both Section 18(a) and Section 21(d). It found
that an award order may be enforced under either section. The court noted that
while Section 18 requires a supplementary order to declare the amount in
default and has an express statute of limitations, a claimant could still
utilize Section 21(d) for enforcement. The court noted that while a Ninth
Circuit case, Providence Washington Ins. Co. v. Director, OWCP, 765
F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20 percent
penalty under Section 18 is more "logical" and "far better meets
the Congressional purpose" than enforcement pursuant to Section 21, it did
not expressly foreclose that section as an avenue of recovery for claimants. See
also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir.
1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D.
Va. 1997).
The court found that under Section 21, the claimant did not have to secure a
supplemental order. Additionally, since Section 21 does not state a statute of
limitations time period, the court allowed the adoption of the one used within
that state, which happened to be two years.
Topic 21.5 Review of
Compensation Order–Compliance
Millet v. Avondale Industries, (Unreported)(E.D. La.
2003), 2003 WL 548879 (Feb. 24,2003).
Federal District court sanctioned use of Section 18 and Section 21(d) by a
claimant's attorney to recover costs and expenses incurred when the employer
first refused to pay the attorney fee which had been confirmed on appeal by the
circuit court when the circuit court had also confirmed the compensation order.
District Court Judge found that, "The purpose and spirit of the LHWCA is
violated when an employer refuses to pay an award of attorney's fees pursuant
to a final order and suffers no consequences. That result awards bad behavior
and thwarts the purpose of the LHWCA....The fact that Avondale promptly paid
Millet upon notice of this lawsuit does not relieve Avondale of responsibility.
Millet was forced to incur costs and expenses to secure payment of a final
award pursuant to the provisions of the LHWCA, to which he was rightfully
entitled. If Millet must bear the cost of enforcement of that final fee award
then he cannot receive ‘‘the full value of the fees to which [he is] entitled
under the Act.'"
Topic 21.5 Review of
Compensation Order–Compliance
[ED. NOTE: The Following Black Lung case is included
since the Black Lung Act draws on the LHWCA procedural provisions. 30
U.S.C. § 932(a).]
Nowlin v. Eastern Associated Coal Corp, 266 F. Supp.
2d 502 (N.D. W. Va. May 13, 2003) [Order on Motion], see also 331
F. Supp. 2d 465 (Aug. 12, 2004).
In the enforcement issue case, the federal district court addressed the
enforceability of awards under both Section 18(a) and Section 21(d). It
found that an award order may be enforced under either section. The court
noted that while Section 18 requires a supplementary order to declare the
amount in default and has an express statute of limitations, a claimant could
still utilize Section 21(d) for enforcement. The court noted that while a
Ninth Circuit case, Providence Washington Ins. Co. v. Director, OWCP,
765 F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20
percent penalty under Section 18 is more “logical” and “far better meets the
Congressional purpose” than enforcement pursuant to Section 21, it did not
expressly foreclose that section as an avenue of recovery for claimants. See
also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir.
1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D.
Va. 1997).
The court found that under Section 21, the claimant did not have to secure a
supplemental order. Additionally, since Section 21 does not state a
statute of limitations time period, the court allowed the adoption of the one
used within that state, which happened to be two years.
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