Andrepont v. Murphy Exploration and Production Co.

• Decision Date: 17 March 2009
• Docket Number: No. 08-60251.,08-60251.
• Citation: 566 F.3d 415
• Parties: Robert ANDREPONT, Petitioner, v. MURPHY EXPLORATION AND PRODUCTION CO.; Liberty Mutual Insurance Co.; Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

566 F.3d 415

Robert ANDREPONT, Petitioner, v. MURPHY EXPLORATION AND PRODUCTION CO.; Liberty Mutual Insurance Co.; Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents.

No. 08-60251.

United States Court of Appeals, Fifth Circuit.

March 17, 2009.

Joshua T. Gillelan, III (argued), Washington, DC, John Dale McElroy, Barton, Price, McElroy & Townsend, Orange, TX, for Andrepont.

Douglas P. Matthews (argued), King, Krebs & Jurgens PLLC, New Orleans, LA, for Murphy Exploration and Production Co. and Liberty Mut. Ins. Co.

Rita Ann Roppolo, Mark Ambrose Reinhalter, Donald Shire, Washington, DC, Chris J. Gleasman, OWCP-Longshore Div., Houston, TX, Thomas O. Shepherd, Jr., Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor.

Petition for Review of an Order of the Benefits Review Board.

Before GARWOOD, DENNIS and PRADO, Circuit Judges.

PER CURIAM:

On May 14, 1999, claimant-petitioner Robert Andrepont ("Andrepont") injured his left knee during the course of his employment with employer-respondent Murphy Exploration & Production Co. ("Murphy"). He was able to continue working on a seven-days-on, seven-days-off schedule until April 21, 2000. At that time, he became temporarily totally disabled because of five surgeries on his knee. From April 22, 2000 to December 12, 2001, Murphy paid Andrepont compensation for temporary total disability. The treating physician found that Andrepont reached maximum medical improvement as of December 13, 2001. After December 12, 2001, Murphy voluntarily initiated payment of compensation for permanent partial disability based on a twenty-six percent permanent impairment of the left leg.

On November 18, 2002, Andrepont filed a claim for compensation with the Department of Labor's Office of Workers' Compensation Programs ("OWCP") under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), codified at 33 U.S.C. §§ 901-950, for permanent total disability. Murphy continued to pay Andrepont compensation for permanent partial disability. The OWCP's Office of the District Director held an informal conference with the parties on September 25, 2003, in which the examiner concluded that Murphy had established the availability of suitable alternate employment and Murphy did not owe any further compensation. The employer accepted this recommendation. Claimant requested the claim be referred to an administrative law judge. The administrative law judge found Murphy had established the availability of suitable alternate employment based on a job identified on February 17, 2003 and therefore no longer owed compensation past that date. However, the claimant was also awarded compensation for permanent total disability (not just the twenty-six percent partial disability payments the company had paid) from December 13, 2001 to February 17, 2003.

Claimant's counsels then submitted a petition to the administrative law judge requesting attorneys' fees pursuant to LHWCA sections 28(a)-(b), codified at 33 U.S.C. § 928(a)-(b). The administrative law judge held Murphy liable for attorneys' fees because the claimant obtained greater compensation than Murphy had initially agreed to pay. Murphy then appealed the award of attorneys' fees. The Benefits Review Board ("BRB"), in a split decision, agreed with Murphy and denied the petitioner's counsel any attorneys' fees because (a) Murphy was voluntarily paying claimant compensation for permanent partial disability when the claimant filed his claim for permanent total disability, and (b) Murphy had accepted the district director's recommendation not to pay any further compensation. Andrepont timely petitions this court for review.

STANDARD OF REVIEW

"This Court conducts a de novo review of the BRB's rulings of law, owing them no deference because the BRB is not a policymaking agency." Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir.2001) (citations omitted). "But this court does afford Skidmore deference to the Director's interpretations of the LHWCA. ... Under this approach, the amount of deference owed the Director's interpretation `will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Avondale Inds., Inc. v. Alario, 355 F.3d 848, 851 (5th Cir.2003) (quoting United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944))).

DISCUSSION

A. Shifting Attorneys' Fees Under the LHWCA.

Sections 28(a)-(b), codified as 33 U.S.C. §§ 928(a)-(b), provide two bases for awarding attorneys' fees upon successful prosecution of a LHWCA claim:

(a) Attorney's fee; successful prosecution of claim

If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation within the provisions of this chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier in an amount ...

(b) Attorney's fee; successful prosecution for additional compensation; independent medical evaluation of disability controversy; restriction of other assessments If the employer or carrier pays or tenders payment of compensation without an award pursuant to section 914(a) and (b) of this title, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy. If the employer or carrier refuses to accept such written recommendation, within fourteen days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation, and thereafter utilizes the services of an attorney at law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation. The foregoing sentence shall not apply if the controversy relates to degree or length of disability ... If the claimant is successful in review proceedings before the Board or court in any such case an award may be made in favor of the claimant and against the employer or carrier for a reasonable attorney's fee for claimant's counsel in accord with the above provisions. In all other cases any claim for legal services shall not be assessed against the employer or carrier.

In FMC v. Perez, we construed these provisions and concluded that "the LHWCA provides for the award of attorney's fees to an LHWCA claimant in only two circumstances." 128 F.3d 908, 909-10 (5th Cir. 1997). We said, "[u]nder [33 U.S.C. § 928(a)] the claimant is entitled to attorney's fees if the employer `declines to pay any compensation....'" Id. (quoting 33 U.S.C. § 928(a)). "An employee may be entitled to attorney's fees under [33 U.S.C. § 928(b)] if, after an informal conference, the employer rejects the recommendations of the Board or commissioner; the employer tenders an amount in lieu of the recommendation; the employee rejects the amount tendered by the employer; the employee hires an attorney; and the employee obtains an amount greater than the amount tendered." Id. at 909-11 (emphasis added). 33 U.S.C. § 928(b) thus "gives an employer an opportunity to avoid the payment of attorney's fees by either (1) accepting the Board's or Commissioner's recommendations or (2) refusing those recommendations but tendering a payment that is accepted by the claimant." Id. at 910.

1. Awarding Attorneys' Fees under 33 U.S.C. § 928(a) is Not Authorized

We have consistently construed 33 U.S.C. § 928(a) to incorporate a condition precedent, namely that the employer must contest liability before section 928(a) authorizes fee-shifting. See Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor v. Black Diamond Coal Mining Co., 598 F.2d 945, 953 (5th Cir.1979) ("[T]he condition precedent [under 33 U.S.C. s 928(a)] to recovery of attorneys' fees is a contest of liability"). In other words, we award attorneys' fees under section 928(a) only if the employer believes it is not liable for any compensation or "no compensation is owing" regardless of the specific type of compensation requested. Ayers S.S. Co. v. Bryant, 544 F.2d 812, 813 (5th Cir.1977). Therefore, if the employer admits to liability for the injury and tenders any compensation, it is not liable for attorneys' fees under section 928(a). See Savannah Mach. & Shipyard Co. v. Dir., Office of Workers' Comp. Programs, 642 F.2d 887, 889 (5th Cir.1981) ("Since the [employer] tendered partial compensation, we agree that [33 U.S.C. § 928(a)] is inapplicable to the situation at hand.").

As stated plainly in the statute, the relevant period for determining if the employer has tendered some compensation is the thirty days after the filing of the written claim. Accordingly, if the employer pays some partial compensation during those thirty days, thereby admitting to liability for the injury, section 928(a) does not apply. See, e.g., Pool Co. v. Cooper, 274 F.3d 173, 186-87 (5th Cir.2001). Murphy admits liability for...