                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 13 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ROBERT KATAGIRI,                                No.   18-72398

                Petitioner,                     BRB No. 18-0149

 v.
                                                MEMORANDUM*
MATSON TERMINALS, INC.; SIGNAL
MUTUAL INDEMNITY ASSOCIATION;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,

                Respondents.

                     On Petition for Review of an Order of the
                              Benefits Review Board

                              Submitted January 9, 2020**
                               San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District
Judge.

      Robert Katagiri petitions for review of a Benefits Review Board (Board)



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
decision affirming an administrative law judge’s (ALJ) denial of his request for a

permanent disability award. We have jurisdiction under 33 U.S.C. § 921(c), and we

deny the petition.

        Robert Katagiri was working for Matson Terminals, Inc. (Matson) on April

16, 2012, when he injured the prosthesis in his right knee while exiting from a motor

vehicle.1 As a result, Katagiri underwent knee surgery on April 20th and took leave

from work until July 29, 2012.

        Katagiri filed a benefits claim under the Longshore and Harbor Workers’

Compensation Act (Longshore Act), 33 U.S.C. §§ 901, et seq., against Matson and

its group self-insurer, Signal Mutual Indemnity Association Ltd (Signal).2 On

December 10, 2015, an administrative law judge (ALJ) determined that Katagiri’s

injury was work-related, awarded Katagiri temporary total disability benefits for the

102 days he was off from work, and ordered Matson to pay certain medical bills.

The ALJ did not award any permanent disability benefits because Katagiri had “not

shown he [was] entitled to permanent disability benefits, nor ha[d] he requested

them.” On December 22, 2015, Matson filed a Notice of Final Payment indicating

compensation pursuant to the ALJ’s order was complete the previous day. This




1
    Katagiri had his knee replaced in 2011.
2
  For the purposes of this decision, we do not differentiate between Matson and
Signal, and refer to them collectively as Matson.

                                              2
payment did not include medical bills that Matson ultimately paid to a third-party

insurance collector after receiving an August 28, 2017 medical invoice from

Katagiri.

      On February 8, 2017, Katagiri filed a request for permanent disability award

(Request), in which he requested permanent partial disability benefits based on a 75-

percent permanent impairment to his right lower extremity. Pursuant to Matson’s

motion for a summary decision, the ALJ denied the Request as an untimely attempt

to modify the December 2015 award under 33 U.S.C § 922. Katagiri then filed a

motion for reconsideration, which the ALJ denied. Finally, Katagiri appealed to the

Board, which affirmed the ALJ’s conclusion that Katagiri’s Request was untimely.

      The sole question before us is whether the Board incorrectly determined that

Katagiri’s Request was untimely as a matter of law.3 Reviewing the Board’s legal

conclusion de novo, Iopa v. Saltchuk-Young Bros., Ltd., 916 F.3d 1298, 1300 (9th

Cir. 2019), we conclude that it did not.

      Section 922 of the Longshore Act “provides the only way to modify an award

once it has issued” and “provides for modification of awards ‘on the ground of a

change in conditions or because of a mistake in a determination of fact.’” Metro.

Stevedore Co. v. Rambo, 515 U.S. 291, 294 (1995), quoting 33 U.S.C. § 922. In



3
  We reject Katagiri’s arguments concerning waiver because Matson clearly raised
this argument in a timely manner before the ALJ.

                                           3
relevant part, Section 922 permits the deputy commissioner, upon an application by

a party or sua sponte, at “any time prior to one year after the date of the last payment

of compensation” to “terminate, continue, reinstate, increase, or decrease such

compensation, or award compensation.” 33 U.S.C § 922.

      An examination of Katagiri’s Request reveals that it reflects an attempt to

modify the December 10, 2015 order so as to “increase” the award. The vast majority

of the Request merely quotes the ALJ’s December 10, 2015 order, in which the ALJ

awarded Katagiri temporary total disability benefits, but declined to award

permanent disability benefits because Katagiri had “not shown he [was] entitled to

permanent disability benefits, nor ha[d] he requested them.” The remainder of the

Request attaches additional evidence of Katagiri’s physical condition and asks for a

rating necessary to increase his award to include a permanent partial disability

benefit. Cf. 33 U.S.C. § 922 (providing timeframe in which a “party” may apply to

“increase” compensation).

      Because Matson completed its last payment to Katagiri on December 21,

2015, and Katagiri’s Request was filed in February 2017, the Request constitutes an

attempt to modify filed more than “one year after the date of the last payment of

compensation,” 33 U.S.C. § 922, and is thus time-barred.

      Katagiri attempts to avoid this outcome by arguing that his Request is instead

a new claim based on the purported fact that “his continued employment had


                                           4
aggravated his knee.” Quite simply, this is untrue: neither the Request nor the

attached medical report indicate his requested 75% permanent disability rating is the

result of his continued employment.

      Katagiri argues, in the alternative, that his Request was a timely modification

application under 33 U.S.C. § 922 because it was “made within one year of the last

payment of compensation.” In order to arrive at this conclusion, Katagiri asserts that

Matson’s payment to a third-party insurance collector to settle medical bills reflected

in an August 28, 2017 invoice is the “last payment of compensation.” Even assuming

a payment for Katagiri’s medical bills following the Request could retroactively

make the Request timely, Katagiri’s argument fails because the phrase “payment of

compensation” in the context of § 922 does not extend to the payment of medical

bills to a third-party insurance collector.

      In Marshall v. Pletz, the Supreme Court rejected a similar argument regarding

this phrase in a similar section of the Longshore Act. 317 U.S. 383, 390 (1943). In

Pletz, the Supreme Court held that “the ‘payment of compensation’ mentioned in”

33 U.S.C. § 913(a) did not include “medical aid” and instead referred only “to the

periodic money payments to be made to the employe[e].” Id. at 390–91. Sections

913 and 922 not only use the same phrase in the context of similar language, but

they also serve the same purpose of establishing statutes of limitation for pursuing

compensation claims under the Act. See 33 U.S.C. § 913(a) (“If payment of


                                              5
compensation has been made without an award on account of such injury or death,

a claim may be filed within one year after the date of the last payment”). Similar

logic applies here: Matson’s payments to the third-party insurance collector do not

constitute “payment of compensation” under Section 922 and thus do not extend the

limitations period.

      Based on a review of other provisions of the Longshore Act, the Fourth Circuit

has similarly concluded that “the term ‘compensation’ in 33 U.S.C. § 922 does not

include voluntary payments by an employer for medical services provided to an

employee” and thus “payments of such services do not extend the Section [9]22

limitations period.” See Wheeler v. Newport News Shipbuilding & Dry Dock Co.,

637 F.3d 280, 291 (4th Cir. 2011). The Fourth Circuit reasoned that, although Pletz

was not “controlling” because it “addressed a separate statute with different

language,” Pletz was nevertheless “instructive” in support of this outcome, which is

also supported by Section 922’s context, purpose, and legislative history. See id. at

285–89. We agree.4


4
  Another section of the Longshore Act entitles employees to recover certain
amounts that they expended for medical services which should have been provided
by their employer. See 33 U.S.C. § 907(d). Conceivably, reimbursements to an
employee for expenditures on medical expenses under this provision could constitute
“compensation” under Section 922. Cf. Grimm v. Vortex Marine Constr., 921 F.3d
845, 849 (9th Cir. 2019) (Watford, J., concurring) (reasoning that although an
employer’s “obligation to furnish future medical care” would not be a
“compensation order” under 33 U.S.C. § 921(d), an additional order directing an


                                         6
      Contrary to Katagiri’s arguments, this conclusion applies with equal force to

Matson’s payments made pursuant to the ALJ’s December 10, 2015 order because

Section 922 does not distinguish between payments made voluntarily and payments

made pursuant to a compensation order. See 33 U.S.C. § 922 (“the deputy

commissioner may, at any time prior to one year after the date of the last payment

of compensation, whether or not a compensation order has been issued . . . issue a

new compensation order which may terminate, continue, reinstate, increase, or

decrease such compensation, or award compensation” (emphasis added)).

      We have carefully reviewed Katagiri’s remaining arguments—including

those pertaining only to dicta in the ALJ’s orders—and conclude they do not warrant

reversal of the Board’s decision. Katagiri’s petition for review is therefore DENIED.




employer to pay for medical bills an employee had already incurred would be). We
need not determine here whether such a reimbursement would be “compensation,”
however, because the payment Katagiri relies on was to an insurance collector for a
medical provider, not to Katagiri. See Pletz, 317 U.S. at 391 (“In the normal case, . . .
the insurer defrays the expense of medical care but does not pay the injured
employe[e] anything on account of such care. Only if the employer and the insurer
omit to furnish such care can the employe[e] procure it for himself and then obtain
from the deputy commissioner an award to reimburse him for what he has spent.”).

                                           7
