Attorneys Not Named in Suit Are Still “Party-In-Interest” Under LHWCA

Attorneys Not Named in Suit Are Still “Party-In-Interest” Under LHWCA

By: Lance Bullock

 SSA Terminals, LLC v. Bell, 2016 U.S. App. LEXIS 11721 (9th Cir. 2016); 2016 WL 3545617 (9th Cir. 2016).Defendant, SSA Terminals, LLC (“SSA”), employed Plaintiff, Ronnie Bell. Bell injured himself in a work-related accident and timely filed a claim for disability benefits. The Department of Labor recommended that SSA pay the claim. However, SSA failed to do so within thirty days of receiving notice of the claim, nor did it make any payment to Bell for more than a year after his injury. SSA eventually agreed to pay Bell the outstanding benefits and future permanent partial disability benefits. After SSA began making payments to Bell, the issue of Bell’s attorney’s fees was decided by an Administrative Law Judge (“ALJ”). The ALJ determined that SSA was responsible for the attorney’s fees, and the Benefits Review Board (“BRB”) upheld that determination. SSA and Bell appealed to the Ninth Circuit.The Ninth Circuit ruled that the BRB did not err in deciding that SSA was responsible for Bell’s attorney’s fees for failing to timely pay the claim. Further, the court determined that Bell’s right to attorney’s fees is based upon the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 928, particularly paragraph (a). Reviewing the BRB’s legal determinations de novo, the court determined that Bell’s attorney, Eric Dupree, was adversely affected by the judgement. Therefore, Dupree was a “party-in-interest,” and the claim was properly before the BRB, despite the fact that Dupree was not a named party. SSA also contended that liability for attorney’s fees should have ended after it made the first payment. The court ruled that under the LHWCA, the employee is entitled to attorney’s fees for the duration of the litigation against the employer. The only applicable time period is the thirty days in which to pay the claim after notification of the claim. The time period after the first payment is irrelevant as to liability for attorney’s fees, as long as the employer failed to make a payment within thirty days of notification of the claim.Additionally, the Ninth Circuit ruled that the BRB did not err in upholding the ALJ’s calculation of Bell’s attorney’s fees, as the appropriate standard of review is abuse of discretion. The ALJ relied upon evidence presented by Bell and determined that the prevailing market rates were less than the rates requested. The court determined this was not an abuse of discretion. Likewise, the court determined that it was not an abuse of discretion for the ALJ to disallow the billing of clerical tasks by Bell’s attorney’s.