Fee Shifting under § 928(b) of the Longshore Act
Rivera v. Dir., OWCP, United States DOL
2021 U.S. App. LEXIS 37797 *; 22 F.4th 460 (5th Cir. Dec. 21, 2021).
§ 928(b) of Title 33 (33 U.S.C. §928[b]) shifts the burden to pay the employee’s attorney’s fees under certain circumstances: (1) an informal conference is held; (2) the BRB or a deputy commissioner issues a written recommendation; (3) the employer refuses to adopt the recommendation within fourteen days; and (4) the employee procures a lawyer's services to achieve an award greater than that which the employer was willing to pay after the written recommendation was issued.
The employee, Rivera, filed a claim against Ameri-Force, for hearing loss asserting that Ameri-force was his last employer and thus liable for the compensation benefits. The claims examiner recommended that the claimant made a prima facie case that Ameri-force was the last employer and of the average weekly wage (AWW). Ameri-force accepted the recommendation as the last employer and informed the claims examiner that negotiations on the AWW were ongoing and that it was waiting for a second determination from a physician; the employer also requested the opportunity to present the evidence at a later conference. The employer then subsequently asserted that the AWW should not include the daily per diem allowance.
Thereafter, another claims examiner recommended that Ameri-Force was responsible for costs associated with Rivera's 35.31% binaural hearing loss and his hearing aids, and that Rivera's average weekly wage should include per diem payments. The employer immediately requested the claims examiner to reconsider and withhold the recommendation until it had an opportunity to present the medical evidence. Thereafter, the claims examiner issued a "Supplemental Informal Conference Recommendation" reducing the hearing loss to 28.16% (an average of the two competing rates of each party), that the AWW would be $439.55 and the total benefits award due would be $24,755.46. If any party objected, they had 21 days to request a formal hearing which neither party did.
The employer then offered to settle the matter for $25,151 based on a higher AWW and $5,000 in medical benefits if the claimant would not seek attorney’s fees. The claimant rejected the offer and subsequently filed a fee petition seeking an award of $8,153 in attorney’s fees. The district director determined that as the employer did not timely pay the employee in accordance with the first recommendation and the employee’s counsel obtained a higher award than the employer was first willing to pay after that recommendation; thus, the employer was responsible to pay attorney’s fees. On appeal, the Benefits Review Board (BRB) reversed the district director on the basis that the first recommendation was rendered moot by the second.
The Fifth Circuit reversed the BRB and held for the claimant. Section 928(b) is clear that when a recommendation is issued the employer may be exposed to attorney’s fees if it refuses to accept the recommendation within 14 days. The court recognized that the issue is res nova in the Fifth Circuit but found decisions of the Fourth Circuit “instructive” and concluded: “…a recommendation is issued for the purposes of § 928(b) when a claims examiner offers a conclusion on an issue central to the determination of compensation owed.” There is no requirement that a specific sum be mentioned in the recommendation. The matter was reversed and remanded. Judge Engelhardt dissented.
We thank, Jeff Briscoe, a former board member of the Loyola Maritime Law Journal, who represented the claimant for bringing this to our attention.
Counsel: For Ramon Rivera, Petitioner: Jeffrey Paul Briscoe, Metairie Towers, Metairie, LA.
For Director Office of Workers' Compensation Programs United States Department of Labor, Petitioner: William M. Bush, Mark A. Reinhalter Counsel, U.S. Department of Labor, Office of the Solicitor, Washington, DC; David Duhon, U.S. Department of Labor, New Orleans, LA; Thomas O. Shepherd Jr. Esq. Clerk of the Appellate Boards, Benefits Review Board, Washington, DC.
For Ameri-Force, Signal Mutual Indemnity Association, Limited, Respondents: Edward Settoon Johnson Esq. Senior Trial Attorney, Christopher Lawrence Williams, Johnson Yacoubian & Paysse, New Orleans, LA.
