Petition for Review of an Order of the Benefits Review Board. OWCP Nos. 18-00364, 18-00380, BRB, No. 90-433
Before: Arthur L. Alarcon, William A. Norris, and Edward Leavy, Circuit Judges. Opinion by Judge Leavy.
Petitioners Stevedoring Services of America and Eagle Pacific Insurance Company (Stevedoring) seek review of a decision of the Workers' Compensation Benefits Review Board ("the Board"). Stevedoring filed the petition with us more than 60 days after the Board made its determination but less than 60 days after it learned of the decision. We hold that the 60-day limitation period begins running when the Board made its decision, regardless of actual notice. Therefore, we dismiss the petition as untimely.
FACTS AND PRIOR PROCEEDINGS
In November 1987, Frank Mattera (Mattera) severely injured his right shoulder while working for Stevedoring. Dr. David Morrison recommended that Mattera not return to work. Because Mattera's shoulder was not healing properly, Dr. Morrison performed surgery in February 1988. Stevedoring paid Mattera benefits for temporary total disability until May 1988. Mattera returned to work by taking a job at Long Beach Container Terminal (Long Beach) on May 16, 1988. Two days later, Mattera experienced pain in his right shoulder. He completed his shift and went to Dr. Morrison's office the next morning.
Again Dr. Morrison determined that Mattera was temporarily totally disabled. Dr. Steven Nagelberg performed a second surgery on the shoulder in October 1988. After a successful recovery, Mattera returned to work in January 1989.
Mattera filed for benefits under the Longshore and Harbor Workers' Compensation Act (the Act), 33 U.S.C. §§ 901, et seq.*fn1 Both Stevedoring and Long Beach argued that the other was responsible for Mattera's medical expenses and disability benefits payable after May 18, 1988. A formal hearing was held before an administrative law Judge in September 1989. In January 1990, the administrative law Judge determined that Stevedoring was responsible for all of Mattera's benefits because the pain Mattera experienced while working for Long Beach was not the result of a new injury.
Stevedoring appealed the administrative law Judge's decision to the Board. On May 28, 1992, the Board affirmed the administrative law Judge's decision. That same day, the Clerk of the Board certified that the Board's decision had been sent by certified mail to counsel for all three parties as well as to Mattera and Long Beach. Stevedoring and an insurance company were omitted from those listed on the service certificate. Stevedoring's counsel asserts that he did not receive a copy of the decision. He first learned of it (the record does not disclose how) on August 4, 1992. Stevedoring filed this appeal on September 14, 1992.
A motions panel of this court previously granted Mattera's and Long Beach's motion to dismiss the appeal for lack of jurisdiction on the ground that the appeal was not timely filed. Later the panel vacated the dismissal and reinstated the appeal. After a thorough review of the law and facts, we again dismiss this appeal as untimely.
Stevedoring asserts that its petition for review was timely filed because it filed it within 60 days of when its counsel first learned of the Board's decision. Under 33 U.S.C. § 921(c), a person adversely affected may appeal the Board's decision by filing a petition within 60 days "following the issuance of such Board order."*fn2 At issue in this appeal is the meaning of the word "issuance" as used in § 921(c). If "issuance" occurred on the date the Board filed its decision with the Clerk, the petition is untimely. If "issuance" occurred on the date the parties learned of the decision, the petition for review is timely.
Stevedoring argues that Nealon v. California Stevedore & Ballast Co., 996 F.2d 966 (9th Cir. 1993) controls the issue. In Nealon, we faced the issue of the definition of the word "filed" under 33 U.S.C. §§ 921(a) and 919(e), which dictate the procedural requirements for an appeal of an administrative law Judge's decision to the Board. We held that under 33 U.S.C. §§ 921(a) and 919(e) the word "filed" means both (1) filed in the office of the deputy commissioner, and (2) served on the parties. Stevedoring would like us to hold that "issuance" under § 921(c) and its regulations has the same meaning as "filed" under §§ 921(a) and 919(e). Section 921(a) provides:
A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, ...