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 LEXIS 733 (5th Cir. January 11, 2011)(unpublished).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

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