First Circuit: LHWCA Claimant does not get $64K in employer-paid fees for seeking surgery in New York instead of Puerto Rico

by Matthew H. Ammerman on May 20th, 2019

Luis Peña-Garcia (Pena) hurt his back in 1994 in Puerto Rico where he lived. Later, Pena’s treating orthopedic surgeon in Puerto Rico, Dr. Sanchez, recommended a laminectomy decompression. Pena wanted the surgery in New York’s Beth Israel Spine Institute rather than Puerto Rico because of the Beth Israel’s good reputation and he had extended family in New York to assist with recovery.

Pena's employer’s insurer denied that request because Dr. Sanchez recommended surgery in Puerto Rico, and Pena’s immediate family still lived in Puerto Rico.

Pena filed a claim pursuant to Section 7 of the Longshore & Harbor Workers’ Compensation Act (LHWCA) that he had a right to have his surgery in New York. After a formal hearing, the administrative law judge issued an order that his employer had to provide surgery but would only be responsible for the cost of having the surgery in Puerto Rico. Pena could have the surgery in New York, but he would be responsible for additional expenses associated with it.
Pena’s attorney submitted a fee petition seeking $64,515 in attorneys’ fees and expenses. The attorney claimed he successfully prosecuted the claim by confirming Pena’s rights to treatment and winning Pena’s “right to choose” to have the surgery in New York.

That was a stretch. The trial judge denied Pena’s attorney’s petition for employer-paid fees. The Benefits Review Board affirmed because Pena’s employer never refused to pay for his back surgery. The employer's liability was “limited to the cost of surgery and rehabilitation in Puerto Rico, which [the] employer had agreed to before the proceedings were initiated.”[1]
There are only two ways a LHWCA claimant can win employer-paid fees: (a) the employer fails to pay compensation within 30 days of receiving notice of claim, and the claimant successfully prosecutes the claim; and, (b) if the employer pays and later a dispute develops, Claimant’s attorney can receive employer-paid fees if he obtains more than is tendered by the employer after an informal conference.[2]
Neither applied here. Pena’s employer agreed to pay for the surgery, even before a formal claim was filed. And, Peña was not awarded compensation greater than that tendered by his employer. His employer did not refuse to pay for surgery at the Puerto Rico cost, regardless of where Peña chose to have the surgery. The U.S. Court of Appeals for the First Circuit denied Pena’s petition for review and affirmed fee denial.
   [1] Pena-Garcia v. Dir., OWCP, 917 F.3d 61, 64 (1st Cir. 2019).
   [2] 33 U.S.C. §§ 928(a), (b).

Posted in LHWCA: Section 7    Tagged with LHWCA: Medical



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