Summary: Plaintiff employer sought relief from the Benefits Review Board (BRB) when employee attempted to modify the order to grant him permanent benefits. The employer argued that it was eligible for relief under § 908(f) (3) but the BRB found the Special Fund was entitled to invoke the absolute defense provided in 33 U.S.C. § 908 (f) (3). The employer, therefore, could not obtain relief if it did not comply with the mandatory procedural requirements contained in this statute. The Administrative Law Judges (ALJ) determined that absolute defense did not apply and the Special Fund would be responsible to provide relief to the employer. The Special Fund appealed to the BRB, and the BRB reversed the ALJ's findings determining that the employer was not entitled to § 908(f) (3) relief. The employer sought review from the 4th Circuit Court and the 4th Circuit found that the employer did not meet the strict procedural requirements contained in the statute and was therefore not entitled to § 908(f) (3) relief.
Plaintiff employer sought review of the decision of the Benefits Review Board (BRB) against a claimant, Mr. Firth. An existing order had granted the employee benefits under the Longshore Harbor & Workers' Compensation Act(LHWCA) under 33 U.S.C. §§ 901-950 for a 1998 work- related injury. The employee then attempted to modify that order to grant him permanent benefits; that order would address who ultimately would pay those benefits, Newport News or the Special Fund pursuant to 33 U.S.C. § 908(f), which is set up to relieve employers of the obligation to make benefit payments under certain circumstances. The employer argued it qualified for relief under § 908(f); however, the BRB found the Special Fund was entitled to invoke the absolute defense provided in 33 U.S.C. § 908(f)(3), and the employer could not obtain relief if it did not comply with the mandatory procedural requirements. Therefore, the employer had to make continuing benefit payments to the employee.
As background, the employee started working for the employer in 1976 and remained employed through the time of this appeal. The employee did have pre-existing problems including neck and shoulder injuries, thoracic outlet syndrome and obesity. These problems were made worse in 1984 when he suffered a work-related injury from falling from a crane and landing on the back of his neck. This fall resulted in a sprain of the cervical spine and his left shoulder joint, and he continued to suffer pain in his upper extremities and neck and was subject to light duty work restrictions.
The events at issue presently arose when the employee suffered a second work-related injury to his neck, right shoulder and upper extremities on March 9, 1988. The employee then filed a claim for benefits under the Longshore Harbor & Workers' Compensation Act (LHWCA), and the ALJ awarded him continuing temporary partial disability benefits. The employer then stopped paying these benefits in 1996, and the employer requested an informal conference before the director to determine his eligibility for permanent partial disability benefits. The employer responded to the employee's request for a conference indicating the Department of Labor did not have jurisdiction to hear the issue since it involved an ALJ's previous order. The director then canceled the conference and the matter was forwarded for review to the Office of Administrative Law Judges to determine whether the absolute defense applied.
The issue then became whether the Office of Workers' Compensation could claim absolute defense under § 908(f)(3). The ALJ determined the director could not claim the absolute defense because the employer satisfied the purpose of the law - to compel employers to raise § 908(f) early in the claim's process. The director then appealed the decision to the BRB.
The BRB reversed, finding the director was entitled to the absolute defense and the employer should not receive § 908(f) relief. The BRB found the Act requires the same procedures for modifications of orders as for initial determinations of benefits and then requested on the plain statutory and regulatory language providing for no exception to the procedure requirements in this case and to deny the employer any relief. The current issue is now the employer's review of the BRB's decision.
Section 908(f) can only be invoked when an employer meets strict procedural requirements so that "any request ... for apportionment of liability to the Special Fund ... and a statement of the grounds therefore, shall be presented to the director prior to the consideration of the claim by the director. Failure to present such request prior to such consideration shall be an absolute defense to the Special Fund's liability for payment of any benefits in connection with such claim." 33 U.S.C. § 908(f)(3). The 4th Circuit noted the only exception to this requirement arises if the employer could not have reasonably anticipated the liability of the Special Fund prior to the issuance of the compensation order.
The employer concedes, (and both the ALJ and the BRB found), that the employer did not comply with the language of the statute. The employer also does not argue that the statutory exception to the requirement applies to them. Instead the employer argues it did not need to follow the unambiguous language of § 908(f)(3) because presenting the claim in the first instance to the ALJ, 11 months after the employer had knowledge that the permanent disability would be an issue, fulfilled the legislative purpose.
The 4th Circuit was not persuaded and found that although the employer may have satisfied the purpose for enacting § 908(f), congress's direction was clear that they should not depart from its direction regardless of how inefficient the direction appears to be, and in this case, there are a series of explicit procedural hoops which the employer must comply with in order to receive the benefits of the Act. Therefore, the employer's Petition for Review is denied.

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STATUTE OF LIMITATIONS
Raney v. NCI Mining Corporation, 2004 WL515916 (6th Cir.).