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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-2023 <br> <br>                   BATH IRON WORKS CORPORATION, <br> <br>                           Petitioner, <br> <br>                                v. <br> <br>               DIRECTOR, U.S. DEPARTMENT OF LABOR, <br>        OFFICE OF WORKERS' COMPENSATION PROGRAMS, ET AL., <br> <br>                           Respondents. <br> <br>                       ____________________ <br> <br>       ON PETITION FOR REVIEW OF A FINAL DECISION AND ORDER <br> <br>                   OF THE BENEFITS REVIEW BOARD <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Lipez, Circuit Judge, <br> <br>                    and Fust, District Judge. <br> <br>                      _____________________ <br> <br>    Kevin M. Gillis, with whom Troubh, Heisler & Piampiano, P.A.  <br>was on brief, for petitioner. <br>    G. William Higbee, with whom McTeague, Higbee, MacAdam, Case, <br>Cohen & Whitney, PA was on brief, for respondent Raymond E. Jones. <br>    Stephen Hessert and Norman, Hanson & DeTroy on brief for <br>respondent Commercial Union Insurance Companies. <br> <br>                       ____________________ <br> <br>                        October 4, 1999 <br>                       ____________________

         FUST
, District Judge.  Petitioner/Appellant, Bath Iron <br>Works, Inc., challenges a decision of the Benefits Review Board of <br>the United States Department of Labor Office of Workers' <br>Compensation holding it responsible for the payment of ongoing <br>medical benefits and a Special Fund assessment pursuant to the <br>Longshoremen and Harbor Workers' Compensation Act ("LHWCA"), 33 <br>U.S.C.  901-950 (1986).  This case is properly before us pursuant <br>to 33 U.S.C.  921(c).  We affirm the Benefits Review Board's <br>determination. <br>                                I. <br>                  Procedural and Factual History <br>         From 1952 to 1978, Respondent/Appellee, Raymond Jones, <br>worked as a pipe coverer at Petitioner's shipyard in Bath, Maine.  <br>During the course of this employment, he was exposed to asbestos, <br>became ill, and filed for workers' compensation benefits.   <br>         On January 16, 1981, an Administrative Law Judge ("ALJ") <br>determined that Jones had sustained an occupational disease, <br>asbestosis, as a result of his work as a pipe coverer at the Bath <br>Iron Works shipyard.  The ALJ awarded Jones permanent partial <br>disability benefits and medical expenses.  The ALJ also granted the <br>employer/insurer relief pursuant to 33 U.S.C.  908(f), based upon <br>a pre-existing chronic obstructive pulmonary disease that the ALJ <br>determined had combined with the occupational disease to create the <br>disability.  The ALJ found that Jones had been exposed to asbestos <br>through March 1978, at which point the employer had transferred him <br>to a different position.  Throughout the initial period of exposure <br>to asbestos, Commercial Union Insurance Companies was Bath Iron <br>Works' workers' compensation insurance carrier. <br>         After 1978, Jones was employed with Bath Iron Works in a <br>position which did not expose him to airway irritants and was able <br>to work following the appropriate treatment for his disease.  Then, <br>in November 1990, Bath Iron Works changed the location of Jones' <br>workplace.  The new work area was poorly ventilated.  Due to the <br>paucity of fresh air, Jones' pulmonary condition worsened.  Upon <br>the advice of his treating physician, Jones ceased work on <br>February 15, 1991, as he was totally disabled.  At this time, Jones <br>filed a Motion for Modification of benefits seeking to change the <br>payments from permanent partial to permanent total disability <br>benefits pursuant to 33 U.S.C.  922. <br>         A different ALJ held a hearing on Jones' motion on <br>December 1, 1992.  Bath Iron Works maintains that Jones' brief for <br>this hearing was the first time that he argued that he had suffered <br>a new injury and that his award should be based upon his average <br>weekly wage at the time when he stopped working in February 1991.  <br>The ALJ addressed both of these issues.  On May 3, 1993, the ALJ  <br>found that no new injury had occurred as of Jones' last date of <br>employment, February 15, 1991, and that, therefore, there was no <br>reason to adjust the date of the award.  The ALJ awarded Jones <br>permanent total disability benefits and, once again, recognized the <br>employer's right to relief pursuant to 33 U.S.C.  908(f).  <br>Accordingly, the ALJ ruled that Jones' benefits would continue to <br>be based upon his average weekly wage as determined in the 1981 ALJ <br>decision. <br>         In February 1991, Bath Iron Works ceased its insurance <br>coverage with Commercial Union Insurance Companies and became self- <br>insured for the purposes of workers' compensation coverage. <br>         Jones appealed the 1993 ALJ determination to the Benefits <br>Review Board, claiming that a new injury had occurred as of <br>February 15, 1991 and that he was, therefore, entitled to benefits <br>based upon his higher average weekly salary at that time.  On <br>August 12, 1996, the Benefits Review Board held that there was <br>evidence that could result in a finding of new injury in 1991.  The <br>Board further held that the ALJ had failed to elucidate fully his <br>reasoning in finding that no new injury had occurred in February <br>1991.  The Board found that the ALJ had not identified, discussed <br>or weighed the relevant evidence and that evidence existed, which <br>if credited, could yield a finding of new injury.  The Board, thus, <br>remanded the case, instructing the ALJ to weigh and analyze the <br>evidence further. <br>         Following the Board's remand, the ALJ analyzed additional <br>evidence and reversed his earlier decision on March 3, 1997.  In <br>so doing, he first noted that, even though he had considered all of <br>the evidence regarding a new injury claim at the time of his <br>original decision, a new injury occurred in February 1991.  The ALJ <br>stated he felt such a ruling was necessary "so that the appellate <br>process may go forward."  The ALJ awarded Jones benefits for a <br>permanent total disability based upon his salary as of February 15, <br>1991, and granted the employer relief under 33 U.S.C.  908(f).  <br>This ruling resulted in an increase in Jones' benefits and changed <br>the carrier responsible for the new injury from Commercial Union <br>Insurance Companies to Bath Iron Works.  Therefore, Bath Iron Works <br>is now responsible for increased compensation and for the Special <br>Fund assessment. <br>         Bath Iron Works appealed the 1997 ALJ decision to the <br>Benefits Review Board.  The Board summarily denied the appeal on <br>August 17, 1998. <br>         Bath Iron Works then filed this Petition for Review on <br>September 15, 1998.  Bath Iron Works alleges that the decision <br>improperly assessed it with liability for medical payments and the <br>Special Fund assessment for all periods after February 15, 1991, <br>because the Board exceeded its scope of review in the August 12, <br>1996 opinion and the subsequent remand.  It further contends that <br>this started a chain of events wherein the ALJ erred in <br>interpreting the Board's remand as an instruction to find that a <br>new injury had occurred and adopted it as such without <br>independently making a determination based upon the facts.  <br>Additionally, Bath Iron Works maintains that the evidence fails to <br>reasonably establish that a new injury occurred as of February 15, <br>1991.

                               II. <br>                            The Issues <br>         Both issues presently before us concern whether or not a <br>new injury occurred in 1991.  The first issue is whether the <br>Benefits Review Board erred in its August 12, 1996 order vacating <br>the ALJ's opinion and remanding for determination of whether a new <br>injury arose in February 1991, and the second is whether, upon <br>remand, the ALJ erred in finding that a new injury occurred on <br>February 15, 1991. <br>                               III. <br>                Benefits Review Board Remand Order <br>         Bath Iron Works contends that absent a prior claim for <br>compensation alleging a new injury, the Board did not possess the <br>authority to address the issue for the first time upon appeal.  <br>Moreover, it maintains that the Board erred in remanding the case <br>to the ALJ because the remand effectively foreclosed a true <br>judicial determination by the ALJ. <br>         Jones responds that he filed a section 922 petition for <br>modification of benefits, seeking permanent total disability <br>benefits, which provided notice of his appeal and authorized the <br>Board to hear the aggravation claim and that the Board's remand was <br>correct because it was necessary for the ALJ to determine whether <br>there was evidence to support an aggravation of his injury. <br>         Our review of the Board's authority is limited to <br>reviewing  the record for material errors of law or fact and we <br>look to the  grounds upon which the Board actually relied in <br>reaching its decision.  See Cornell University v. Vlez, 856 F.2d <br>402, 404 (1st Cir. 1988).  We begin with the Board's authority to <br>address the new injury issue.  In January 1981, the ALJ awarded <br>Jones permanent partial disability benefits resulting from a 1978 <br>occupational disease of asbestosis.  Jones continued his employment <br>with Bath Iron Works through 1991.  However, in 1990, Bath Iron <br>Works transferred him to a new work area in which there was less <br>ventilation.  In this poorly-ventilated area, Jones' pulmonary <br>condition became aggravated and eventually forced him to cease his <br>employment.  Concurrently, Jones' attorney sent a letter seeking <br>permanent total disability benefits pursuant to 33 U.S.C.  922. <br>         Section 922 permits the deputy commissioner to reconsider <br>an award or denial of benefits within one year of the last payment <br>of compensation. 33 U.S.C.  922.  Petitioner, at that time, was <br>receiving permanent partial disability benefits and, therefore, <br>satisfied the statutory time limit of section 922. <br>         The Board determined that Jones fulfilled the statute of <br>limitations requirements of the LHWCA, reasoning that because <br>Jones' letter seeking modification of benefits was timely filed <br>under  922, it was unnecessary for Jones to take the additional <br>step of filing a new injury claim under  913 of the LWHCA.  The <br>Board further noted that the proceedings under  922, if not the <br>letter itself, provided a timely alert that Jones was asserting a <br>new injury claim under an aggravation theory.  We find the Board's <br>conclusions to be sound and based upon the evidence. <br>         Moreover, given that the LHWCA widely enjoys a liberal <br>construction, McDermott Inc. v. Bourdreaux, 679 F.2d 452, 459 (5th <br>Cir. 1982) (citing Voris v. Eikel, 346 U.S. 328, 333 (1953)); see <br>also O'Keefe v. Aerojet-General Shipyards, 404 U.S. 254, 255 <br>(1971); Boatel Inc. v. Delamore, 379 F.2d 850, 857 (5th Cir. 1967); <br>Carumbo v. Cape Cod S.S. Co., 123 F.2d 991 (1st Cir. 1941) <br>(interpreting terms under the LHWCA), we find that Jones' letter <br>satisfies the requirements of section 922.  See, e.g., Banks v. <br>Chicago Grain Trimmers Assoc., 390 U.S. 459, 465 n.8 (1968) (noting <br>the fact that a petitioner labeled a second action as a claim for <br>compensation rather than an application for review was irrelevant <br>for statutory purposes as long as the action meets the requirements <br>of the section).  Therefore, it is disingenuous to allege that the <br>issue was raised for the first time in the brief to the ALJ for the <br>remand hearing.  The letter constitutes notice of such a claim and <br>Jones also implicitly raised the issue in his pre-hearing statement <br>to the ALJ on the modification of benefits issue.  By moving for a <br>modification of benefits and by arguing that the benefits should be <br>based on his 1991 salary, Jones was necessarily asserting either <br>that he sustained a new injury or aggravation of his prior injury. <br>See Volpe v. Northeast Marine Terminals, 671 F.2d 697, 701 (2d Cir. <br>1982) ("Although a preexisting condition does not constitute an <br>injury, aggravation of a preexisting condition does."); Bludworth <br>Shipyard, Inc. v. Lira, 700 F.2d 1046, 1050 (5th Cir. 1983) (citing <br>cases).  In this situation, Jones did not need to file a <br>duplicitous claim under section 13.  See generally, I.T.O. Corp. v. <br>Pettus, 73 F.3d 523, 526 (4th Cir. 1996) (stating that under <br>section 922, "[a]n application of a party in interest need not meet <br>formal criteria.  The application need only be sufficient to <br>trigger review before the . . . limitations period expires.") <br>(internal citation omitted). <br>         As a result, at the hearing the ALJ addressed the issue <br>and Bath Iron Works subsequently appealed his decision to the <br>Board.  In this way, the Board had the authority to address the new <br>injury issue under the aggravation theory. <br>         Next, we determine whether the Board erred in remanding <br>the case to the ALJ on the aggravation issue.  Generally, a Board <br>must accept administrative findings of fact unless they are <br>unsupported by substantial evidence in the record considered as a <br>whole. 33 U.S.C.  921(b)(3) (1982).  In turn, "[w]e examine the <br>record for material errors of law or for impermissible departure <br>from the familiar 'substantive evidence' rubric in connection with <br>the board's assessment of the hearing officer's factual findings." <br>Cornell University, 856 F.2d at 404; Air America, Inc. v. Director, <br>Office of Workers' Compensation Programs, 597 F.2d 773, 778 (1st  <br>Cir. 1979); Bath Iron Works Corp. v. White, 584 F.2d 569, 573-74 <br>(1st Cir. 1978) (citing O'Keeffe v. Smith, Hinchman & Grylls <br>Associates, Inc., 380 U.S. 359, 363 (1965)); 33 U.S.C. <br> 921(b)(3)). <br>         Upon examination of the record in the instant case, the <br>Board determined that there was evidence in the record which, if <br>found credible, could support a finding of an aggravation injury <br>and thereby entitle Jones to increased benefits, from permanent <br>partial to permanent total disability benefits.  Respectively, the <br>date of the aggravated injury would determine the amount from which <br>benefit calculation would begin rather than the original date of <br>injury.  The Board found that the ALJ had failed to discuss his <br>reasoning for finding no aggravation and, accordingly, remanded for <br>clarification of the issue.  This is clearly the appropriate <br>course of action since the Board is constrained from making <br>findings of fact itself. 33 U.S.C.  921(b)(3); Owens v. Newport <br>News Shipbuilding & Dry Dock Co., 11 B.R.B.S. 409, 418 (1979).  We <br>find the Board's remand in this case to be expressly within its <br>powers.  See 33 U.S.C.  921(b)(3); Jasinkas v. Bethlehem Steel <br>Corp., 735 F.2d 1, 3 (1st Cir. 1984) (citing cases where ALJ's <br>findings were unclear and deeming Board remand appropriate).  <br>                               IV. <br>                     New Injury Determination <br>         Bath Iron Works alleges that no new injury occurred in <br>February 1991 because: (1) the ALJ erroneously assumed that he <br>could not independently issue findings regarding the new injury <br>issue; and (2) the evidence in the record does not support a new <br>injury claim.  Jones counters that the evidence in the record <br>clearly supports the new injury determination. <br>         As noted above, our review of this determination is <br>limited to whether the Board committed an error of law.  Meagher, <br>867 F.2d at 727.  From the record before us, it is clear that the <br>Board was meticulously correct in its determination.  The Board <br>remanded for specific factual determinations, and the ALJ found a <br>new and discrete injury.  In his opinion, the ALJ noted specific <br>facts: The new location which had no windows and poor ventilation; <br>Jones' exposure to thick dust, fumes, and other injurious pulmonary <br>stimuli.  The ALJ cited additional evidence, including Jones' <br>decreased breathing capacity, medical tests, reports from Jones' <br>treating physician, and testimony from Jones.  The combination of <br>these factors led the ALJ to conclude that a new injury arose on <br>February 15, 1991 and to award permanent total disability benefits <br>accordingly.  The Board concurred, finding sufficient factual <br>support in the record for the ALJ's decision.  We do not find that <br>the Board committed an error of law in affirming the ALJ's <br>determination.  At this point, our authority to review the decision <br>of the Benefits Review Board ends. <br>                                V. <br>                            Conclusion <br>         In accordance with the foregoing, we AFFIRM the Benefit <br>Review Board's decision in favor of Raymond Jones.</pre>

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