No employer-paid fee unless there is an informal conference recommendation

by Matthew H. Ammerman on March 8th, 2011

There are 2 ways for an injured worker's attorney to get an employer-paid fee under the Longshore Act. The Fifth Circuit strictly construes both. 33 U.S.C. Sec. 928(a),(b). On January 11, 2011, a Fifth Circuit panel stuck to its guns with regard to Section 28(b) and rejected a fee awarded to claimant's attorney -- no informal conference recommendation, no Section 28(b) fees. Craven v. Director, OWCP, 2011 U.S. App. LEXIS 733 (5th Cir. January 11, 2011)(unpublished).

A Section 28(b) fee is based on whether claimant obtains at trial more than what was recommended by the Office of Workers' Compensation Programs (OWCP) and accepted by the employer. Here, an August 2005 telephonic informal conference in Craven's case ended with no written recommendation. The OWCP's claims examiner did not have wage information from the employer to calculate average weekly wage. The examiner sent out a letter requesting the wage information after the conference. Claimant then sought a referral for a formal hearing. Due to Hurricane Katrina, employer Northrop did not receive the examiner's letter until April 6, 2006.

At formal hearing, Judge Avery ordered Northrop to pay temporary total disability. And, despite the lack of an informal conference recommendation, the judge ordered Northrop to pay attorney's fees because Northrop allegedly acted in bad faith by failing to provide wage information before the informal conference. On appeal, the Benefits Review Board reversed. The Fifth Circuit affirmed that reversal on procedural grounds because there was no informal conference recommendation.

Though often sniffed at by claimant's lawyers, the Longshore Act provides a remedy. Claimants' attorneys can seek approval of a fee taken from Claimant's benefit award under Section 28(c) -- just like many state workers' compensation statutes. Here, Claimant's attorney did just that. She sought and obtained a lien on claimant's benefit award, albeit for less than what she was seeking from Northrop.

Posted in LHWCA: Attorneys' Fees; 28(b)    Tagged with no tags



follow on

11th circuit 5th Circuit 905(b) 9th circuit ALJ Aggravation Rule Amclyde Average weekly wage Bienvenu Boroski CMS CORONAVIRUS COVID-19 Churchill Contribution Cowart Credit Intoxication defense L-MSA LHWCA discovery LHWCA: Medical LHWCA Longshore Report of Injury Longshore situs Longshore Maintenance and cure New Orleans Depot OCSLA OPA Oil Pollution Act Outer Continental Shelf Lands Act Permanent total disability Roberts Section 10(a) Section 10(c) Section 20 Presumption Section 33(g) Section 7 Medical Section 7 Stroke Supreme Court Testbank Townsend Tracy Valladolid actually incurred additional insured adjoining area batterton change of physician compensation container repair disability doiron dollar-for-dollar dr. seidemann eggshell skull exclusion extraterritorial general maritime law hearing loss herron factors indemnity intervening cause jones act joseph tracy last responsible employer rule liability MSA longshore act longshore status manderson maritime contract maritime punitive damages master service agreement maximum compensation rate mcbride v. estis mcbride medical expenses naquin non-pecuniary damages occupational disease outer continental shelf pai or incurred paid or incurred pecuniary damages percentage of responsibility presumption punitive damages ramos rate rebuttal recreational vessel seaman status seaman situs special weight status substantial nexus transitory maritime worker unseaworthiness vessel negligence vessel status voluntary retirement winchester test winchester zepeda mixed-use facility zepeda