                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NEWPORT NEWS SHIPBUILDING AND         
DRY DOCK COMPANY,
                        Petitioner,
                 v.
                                                  No. 05-2406
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS; DAVID
HASSELL,
                      Respondents.
                                      
              On Petition for Review of an Order of
                  the Benefits Review Board.
                             (05-260)

                      Argued: September 20, 2006

                      Decided: February 7, 2007

      Before WILLIAMS and TRAXLER, Circuit Judges,
and Henry F. FLOYD, United States District Judge for the District
            of South Carolina, sitting by designation.



Petition denied by published opinion. Judge Floyd wrote the opinion,
in which Judge Williams and Judge Traxler joined.


                             COUNSEL

ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER
& HEDRICK, P.C., Newport News, Virginia, for Petitioner. Rita A.
Roppolo, UNITED STATES DEPARTMENT OF LABOR, Office of
2              NEWPORT NEWS SHIPBUILDING v. DOWCP
the Solicitor, Washington, D.C.; Gregory Edward Camden, MONTA-
GNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for Respon-
dents. ON BRIEF: Charlene Parker Brown, MONTAGNA, KLEIN,
CAMDEN, L.L.P., Norfolk, Virginia, for Respondent David Hassell;
Howard M. Radzely, Solicitor of Labor, Allen H. Feldman, Associate
Solicitor, Mark A. Reinhalter, Counsel for Longshore, UNITED
STATES DEPARTMENT OF LABOR, Office of the Solicitor,
Washington, D.C., for Federal Respondent.


                             OPINION

FLOYD, District Judge:

   Newport News Shipbuilding and Dry Dock Company (Newport
News) petitions this Court for review of a decision and order of the
Benefits Review Board (BRB), which granted attorney’s fees to
David Hassell under the Longshore and Harbor Workers’ Compensa-
tion Act (LHWCA). For the reasons stated below, we deny the peti-
tion for review.

                                  I.

   Hassell was injured on April 21, 2002, while working as an
employee of Newport News. Newport News paid temporary total dis-
ability benefits to Hassell for the period from April 22, 2002, to
August 4, 2002. On May 6, 2003, Hassell’s treating orthopedic physi-
cian opined that Hassell had reached his maximum medical improve-
ment and assigned a nineteen percent permanent partial disability
rating. (J.A. at 40.) Hassell’s counsel sent a letter to Newport News
on May 18, 2003, inquiring as to its position concerning the payment
of benefits to Hassell. (J.A. at 39.) In response, on May 27, 2003,
Newport News submitted proposed stipulations to Hassell. (J.A. at
41-43.) Included in the proposed stipulations, at paragraph seven, was
the statement, "That the parties are aware of no other outstanding
compensation issues as of the date of execution of these Stipulations."
(J.A. at 43.) Hassell’s counsel returned the stipulations on June 6,
2003, having deleted the above-referenced statement at paragraph
seven. (J.A. at 47-49.) Newport News responded, stating that it could
               NEWPORT NEWS SHIPBUILDING v. DOWCP                      3
not endorse the modified stipulations and requesting that Hassell sign
the original stipulations, including the statement at paragraph seven.
(J.A. at 52-54.)

   After resubmitting the original stipulations, Newport News filed a
notice of controversion on June 17, 2003, noting as the reason a chal-
lenge to the extent of permanent disability pending a second opinion.
(J.A. at 5.) Thereafter, on June 22, 2003, and June 23, 2003, Hassell’s
counsel wrote to the Department of Labor, requesting an informal
conference on the issue of Hassell’s entitlement to a nineteen percent
permanent partial disability rating. (J.A. at 6-7.) The District Director
responded on June 25, 2003, stating that the position of the Office of
Workers’ Compensation Programs was that 1) Newport News should
begin payments of the rating with which it had no disagreement and
2) Hassell was not required to sign the stipulations as a condition to
receive compensation. (J.A. at 8.) On July 3, 2003, Hassell’s counsel
submitted his LS-18 pre-hearing statement for a rating. (J.A. at 9-10.)

   Newport News filed a motion to compel Hassell to disclose what
issues remained on October 24, 2003. (J.A. at 11-15.) The Adminis-
trative Law Judge (ALJ) granted the motion to compel on November
21, 2003. (J.A. at 35.) Hassell responded to the ALJ’s order, stating
that there were no other outstanding issues. (J.A. at 56.) At the sched-
uled formal hearing on January 14, 2004, the parties agreed to the
stipulations without the questionable language, and the ALJ entered
an order based on these stipulations. (J.A. at 61-62.)

   Hassell’s counsel subsequently submitted a fee petition to the ALJ.
(J.A. at 68.) Newport News objected to the petition, arguing that it
had tendered compensation under the statute. Additionally, Newport
News challenged specific entries, the hourly rate, and the specificity
of the petition. The ALJ found that Newport News could not avoid
liability for the fees because the "tender" did not demonstrate a will-
ingness to pay compensation. (J.A. at 69-70.) The ALJ, however,
reduced the hourly rate, reduced certain entries and disallowed other
entries. (J.A. at 71.) Thereafter, Newport News appealed and Hassell
cross-appealed the order of the ALJ. (J.A. at 74.) The BRB affirmed
the ALJ’s decision. (J.A. at 74-78.) Newport News now petitions this
Court for review of the BRB’s award of attorney’s fees.
4               NEWPORT NEWS SHIPBUILDING v. DOWCP
                                    II.

  We review the BRB’s interpretation of the LHWCA de novo. Poto-
mac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n.18 (1980).
The BRB is not a policymaking agency; thus, its interpretation of the
LHWCA is not entitled to any special deference from the Court. Id.

                                    A.

    Section 928(b) provides, in relevant part:

      If the employer or carrier pays or tenders payment of com-
      pensation without an award . . . and thereafter a controversy
      develops over the amount of additional compensation, if
      any, to which the employee may be entitled, the deputy
      commissioner or Board shall set the matter for an informal
      conference and following such conference the deputy com-
      missioner or Board shall recommend in writing a disposition
      of the controversy. If the employer or carrier refuse to
      accept such written recommendation, within fourteen days
      after its receipt by them, they shall pay or tender to the
      employee in writing the additional compensation, if any, to
      which they believe the employee is entitled. If the employee
      refuses to accept such payment or tender of compensation,
      and thereafter utilizes the services of an attorney at law, and
      if the compensation thereafter awarded is greater than the
      amount paid or tendered by the employer or carrier, a rea-
      sonable attorney’s fee . . . shall be awarded in addition to the
      amount of compensation.

33 U.S.C. § 928(b). Newport News argues that Hassell is not entitled
to a fee award under this provision because Hassell failed to obtain
greater compensation by litigating the case. We disagree.

                                    B.

   As threshold requirements under § 928(b), an employer must pay
or tender payment of compensation without an award and a contro-
versy must develop over the amount of additional compensation to
               NEWPORT NEWS SHIPBUILDING v. DOWCP                    5
which the employee may be entitled. Once these thresholds are satis-
fied, § 928(b) requires all of the following before attorney’s fees may
be awarded: "(1) an informal conference, (2) a written recommenda-
tion from the deputy or Board, (3) the employer’s refusal to adopt the
written recommendation, and (4) the employee’s procuring of the ser-
vices of a lawyer to achieve a greater award than what the employer
was willing to pay after the written recommendation." Va. Int’l Ter-
minals, Inc. v. Edwards, 398 F.3d 313, 318 (4th Cir. 2005). Here,
each of these events has occurred.

                                  1.

   The threshold requirements of § 928(b) are satisfied: Newport
News paid temporary total disability benefits without an award for the
period from April 23, 2002, through August 4, 2002, and, thereafter,
a controversy developed over the amount of additional compensation
to which Hassell was entitled for permanent partial disability. After
Hassell’s treating orthopedic physician opined that Hassell had
reached maximum medical improvement, Hassell requested addi-
tional compensation based on a nineteen percent permanent partial
disability rating. Although Newport News did not initially dispute the
amount of compensation, it included in its proposed stipulations the
statement, "That the parties are aware of no other outstanding com-
pensation issues as of the date of execution of these Stipulations." A
controversy developed over the inclusion of this statement in the stip-
ulations.

   Hassell deleted the statement, signed the stipulations and returned
them to Newport News. Newport News then refused to endorse this
modification to the stipulations and again requested Hassell to sign
the stipulations, with the original statement included. Thereafter,
Newport News filed a notice of controversion, challenging the extent
of permanent disability pending a second opinion. Therefore, a con-
troversy developed not only over the inclusion of the language in the
stipulations, but also over the amount of compensation.

                                  2.

   The remaining requirements of § 928(b) are also met. First, the let-
ters between Newport News and Hassell and to the District Director
6              NEWPORT NEWS SHIPBUILDING v. DOWCP
serve as the "functional equivalent of an informal conference."
Matulic v. Dir., OWCP, 154 F.3d 1052, 1060 (9th Cir. 1998) (stating
that the issuance of a written recommendation, alone, is the "func-
tional equivalent of an informal conference" for purposes of determin-
ing a claimant’s entitlement to attorney’s fees). This Court was
previously presented with a similar situation in which the employee’s
counsel argued that the District Director’s communications with the
parties by telephone and letter could be treated collectively as an
informal conference and that the District Director’s letter could be
treated as a written recommendation. Va. Int’l Terminals, Inc. v.
Edwards, 398 F.3d 313, 318 n.* (4th Cir. 2005). The Court rejected
that argument, without deciding whether written communication
could be treated as an informal conference, because the District
Director’s letter did not constitute a written recommendation. Id.
Here, however, the District Director did issue a written recommenda-
tion after receiving the request for an informal conference. Thus, we
must revisit whether written communication may be treated as an
informal conference.

   The Code of Federal Regulations affords the District Director
much discretion for handling claims and conducting informal confer-
ences. 20 C.F.R. § 702.314 states that such conferences should gener-
ally be held at the District Director’s office; however, they may be
held at any place which will be of greater convenience to the parties.
In fact, 20 C.F.R. § 702.311 provides that some cases may be handled
by written correspondence. Thus, in Hassell’s case, the letters consti-
tute an informal conference.

   Second, the District Director’s June 25, 2003, letter was a written
recommendation. As noted above, after receiving the letter requesting
an informal conference, the District Director responded, stating that
the position of the Office of Workers’ Compensation Programs was
that Newport News should begin payments of the rating with which
it had no disagreement and that Hassell was not required to sign the
stipulations as a condition to receive compensation. Thus, we find that
the District Director issued a written recommendation.

   Third, Newport News refused to adopt the District Director’s rec-
ommendation. Newport News never changed its initial offer, which
included the challenged language in the stipulations. Finally, Hassell
               NEWPORT NEWS SHIPBUILDING v. DOWCP                       7
refused to sign the stipulations with that language included and uti-
lized the services of a lawyer to receive an award "greater than the
amount paid or tendered" by Newport News. Id.

   Newport News argues that Hassell failed to obtain greater compen-
sation by litigating this case because Newport News tendered pay-
ment of compensation at a nineteen percent rating and Hassell
ultimately was awarded compensation at a nineteen percent rating.
However, Newport News refused to adopt the written recommenda-
tion and continued to condition its offer of payment on Hassell’s sign-
ing a stipulation he was not required to sign. Thus, Newport News
failed to make a valid tender because its offer was conditional.* See
Black’s Law Dictionary 1507 (8th ed. 2004) (defining "tender" as "an
unconditional offer of money or performance to satisfy a debt or obli-
gation"). In the end, after litigating the issue, Hassell obtained com-
pensation at a nineteen percent rating, but without the inclusion of the
challenged stipulation. Accordingly, he obtained a greater award than
he was able to achieve prior to litigating this case.

                                   III.

   In sum, because Hassell satisfied all of the requirements of
§ 928(b), he is entitled to an award of attorney’s fees. Accordingly,
the petition for review is denied.

                                                   PETITION DENIED

  *Our case law establishes that a tender of additional compensation is
not required for an employer to be liable for attorney’s fees if the
employee uses an attorney to obtain additional compensation. See Va.
Int’l Terminals, Inc. v. Edwards, 398 F.3d 313, 318 (4th Cir. 2005 (stat-
ing that after satisfaction of the threshold requirements, payment of fees
under § 928(b) is dependent upon "all of the following: (1) an informal
conference, (2) a written recommendation from the deputy or Board, (3)
the employer’s refusal to adopt the written recommendation, and (4) the
employee’s procuring of the services of a lawyer to achieve a greater
award than what the employer was willing to pay after the written recom-
mendation").
