Boland Marine & Mfg. Co. v. Rihner
| Decision Date | 09 January 1995 |
| Docket Number | No. 93-5114,93-5114 |
| Citation | 41 F.3d 997 |
| Parties | , 63 USLW 2440, 31 Fed.R.Serv.3d 1069 BOLAND MARINE & MANUFACTURING CO., and Continental Insurance Co., Petitioners, v. Billy C. RIHNER, son of Paul Rihner, deceased, and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James R. Logan, IV, Cornelius, Sartin & Murphy, New Orleans, LA, for petitioner.
Joseph P. Tynan, Lea, Plavnicky & Moseley, New Orleans, LA, for Rihner.
Laura J. Stomski, Marianne D. Smith, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Washington, DC, for Director.
Paul E. Trayers, Clerk, BRB, Washington, DC, for other interested parties.
Petition for Review of a Final Order of the Benefits Review Board.
Before KING and BENAVIDES, Circuit Judges, and LAKE, District Judge. *
This case involves an award of attorney's fees for proceedings conducted under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950. Below, an Administrative Law Judge determined that the Director of the Office of Workers' Compensation Programs fostered litigation without reasonable grounds in the proceedings involving the claim of Billy C. Rihner. Therefore, the Administrative Law Judge assessed attorney's fees as costs against the Special Fund under the provisions of 33 U.S.C. Sec. 926. The Director appealed, and the Benefits Review Board determined that the Administrative Law Judge erred in awarding fees from the Special Fund and reversed the award of attorney's fees. Furthermore, invoking 33 U.S.C. Sec. 928(b), the Benefits Review Board found that the employer, Boland Marine & Manufacturing Company, was liable for the attorney's fees. On remand, an Administrative Law Judge ordered Boland Marine & Manufacturing Company to pay $4,060.56 in attorney's fees and expenses. Subsequently, the Benefits Review Board affirmed the Administrative Law Judge's order. Boland Marine & Manufacturing Company and its insurer, Continental Insurance Company, appeal the BRB's decisions. Finding no reversible error, we affirm.
In February 1981, Paul Rihner suffered a fatal heart attack while at work. His wife, Carmelite Rihner, filed a claim for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA") in August of that same year, and Boland Marine and Manufacturing Company and its insurer, Continental Insurance Company (collectively "Boland Marine"), began to pay benefits retroactively from the time of Paul Rihner's death. Carmelite Rihner continued to receive monthly payments from Boland Marine until her death in February 1985. At that time, Billy Rihner ("Rihner"), the child of Paul and Carmelite Rihner, began to receive benefit payments. 1
Soon thereafter, Boland Marine sought relief under Section 8(f) of LHWCA which limits the time an employer must pay benefits for a disability caused, in part, by an existing injury or disability. 2 Although the Deputy Commissioner recommended that relief be granted under Section 8, the Associate Director denied relief under that section, noting that "it could be concluded that the claimant's demise was a natural progression of his underlying condition"; "it is questionable whether the claimant's fatal heart attack 'arose out of his employment' "; and "it is not clear from the file the basis for Billy C. Rihner's entitlement since he is an adult child." Several months later, in July of 1985, Boland Marine again requested relief under Section 8(f). Once again, contrary to the recommendation of the Deputy Commissioner, in November of 1986, the Associate Director found "that compensability ha[d] not been established" and denied the request. Additionally, in the letter denying Section 8(f) relief, the Associate Director advised "that no further administrative action should be taken in regard to the claim for compensation or the application for section 8(f) relief."
The month after it was notified of the second rejection of its claim, Boland Marine filed a "Notice of Final Payment or Suspension of Compensation Payments" and discontinued paying benefits to Rihner. A claim for benefits under LHWCA was filed on behalf of Rihner and the case was referred to the Office of Administrative Law Judges. In its pre-hearing statement, Boland Marine listed, inter alia, "[w]hether Mr. Rihner suffered an accident ... while working for Boland Marine," "the nature and causes of Mr. Rihner's death," and "[w]hether or not Mr. Rihner's prior cardiac ailments and other medical conditions constitute a pre-existing permanent partial disability" as issues to be presented in the hearing.
In June 1988, the Administrative Law Judge ("ALJ") determined that Paul Rihner's "pre-existing conditions of diabetes mellitus, coronary arteriosclerosis and hypertension ... constituted a permanent partial disability for purposes of Section 8(f) of the Act." Further, the ALJ found that: if Paul Rihner had not suffered from these conditions "his heart attack might not have been fatal, or it might not have occurred at all"; "Mr. Rihner's preexisting permanent partial disability predisposed him to disability, and in combination with his heart attack ... resulted in his death"; and "Mr. Rihner's disability was manifest to his employers." Thus, the ALJ concluded that "Section 8(f) of the Act is applicable to this case so as to limit the Employer's liability to 104 weeks of compensation payments." Finally, the ALJ determined that since Rihner was successful in his claim, Boland Marine was required to pay his attorney's fees.
Boland Marine contested the award of attorney's fees against it, and the ALJ altered its decision, ordering the "Special Fund to pay [Rihner's] attorney's fees as the Director [of the Office of Workers' Compensation Programs ("the Director") ] fostered litigation without reasonable grounds for doing so." Specifically, the ALJ determined that:
the record clearly indicates that [Rihner] was entitled to benefits and that the Employer/Carrier was entitled to Sec. 8(f) relief. No contradictory evidence was submitted. Therefore, I find the Director's stance prior to hearing to be unreasonable, particularly in light of the fact that Director failed to pursue its position at the formal hearing. Accordingly, I find that the Director instituted the proceedings in this case without reasonable ground, and the Special Fund is therefore liable for [Rihner's] attorney's fees pursuant to Section 26.
Thus, the ALJ ordered the Special Fund to pay attorney's fees of $3885 and expenses of $175.56.
The Director appealed the order granting attorney's fees from the Special Fund to the Benefits Review Board ("BRB"). The BRB found that the ALJ erred "in assessing attorney's fees against the Special Fund pursuant to Section 26, as this section provides for the assessment of the costs of a proceeding only against a party who has instituted or continued the proceedings without reasonable grounds." Specifically, the BRB found that it was Boland Marine's actions "that necessitated a formal hearing ... [r]egardless of the merit of the Director's position in denying Section 8(f) relief." Moreover, the BRB reasoned that, because from a pre-hearing perspective the Director did not know or should not have known that his position would be unsuccessful, the Director did not continue the proceedings without reasonable ground.
Additionally, the BRB noted that the "Special Fund cannot be held liable for an attorney's fee under Section 28." The BRB, however, did find that since Boland Marine terminated payments to Rihner, Boland Marine was liable for Rihner's attorney's fees under Section 28(b) notwithstanding its stipulation to Rihner's entitlement to compensation at the hearing or its successful petition for relief under Section 8(f). Thus, the BRB vacated the ALJ's order granting attorney's fees from the Special Fund under Section 26 and modified the ALJ's decision so to hold Boland Marine liable for Rihner's attorney's fees.
Subsequently, the case was remanded to an ALJ who assessed attorney's fees against Boland Marine. Boland Marine then appealed to the BRB which affirmed the ALJ's order on remand. This appeal followed. Specifically, Boland Marine argues that: (1) the BRB erred in concluding that Director did not institute or continue the proceedings in this case without reasonable grounds, and, therefore, according to Section 26 of LHWCA, attorney's fees may be assessed against the Special Fund; (2) Rihner should be entitled to attorney's fees from the Special Fund under the "bad faith" exception to the American Rule, the Administrative Procedure Act, the Federal Rules of Civil Procedure, or the ALJ's general equitable powers; and (3) an employer cannot be liable under Section 28 of LHWCA when it did not controvert a claimant's entitlement to benefits. We reject all of Boland Marine's contentions, and we affirm the decision of the BRB.
In reviewing the decisions of the BRB, the scope of this court's review is relatively narrow. In examining the orders of the BRB our role is limited to " 'considering errors of law and making certain that the BRB adhered to its statutory standard of review of factual determinations, that is, whether the ALJ's findings of fact are supported by substantial evidence and consistent with the law.' " Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90 (5th Cir.1990) (quoting Miller v. Central Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. Unit A 1982)); accord Tanner v. Ingalls Shipbuilding, 2 F.3d 143, 144 (5th Cir.1993); Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.1991). In our review we "may not substitute [our] judgment for that of the ALJ, nor may we reweigh or reappraise the evidence," instead we inquire whether there was evidence supporting the ALJ's factual findings. Empire United Stevedores, 936 F.2d at 822 (citations omitted).
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