Taylor v. SSA Cooper, L.L.C.
| Decision Date | 30 June 2017 |
| Docket Number | BRB 16-0174 |
| Parties | ARTHUR B. TAYLOR Claimant-Petitioner v. SSA COOPER, L.L.C. And HOMEPORT INSURANCE COMPANY Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Supplemental Decision and Order - Denying Attorney Fees of Alan L. Bergstrom, Administrative Law Judge, United States Department of Labor.
E Paul Gibson (E. Paul Gibson, P.C.), Charleston, South Carolina, for claimant.
Vincent C. Northcutt and Kate K. Hemingway (Lueder, Larkin & Hunter, L.L.C.), Mount Pleasant, South Carolina, for employer/carrier.
Matthew W. Boyle (Nicholas C. Geale, Acting Solicitor of Labor; Maia Fisher, Associate Solicitor; Mark A. Reinhalter Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BUZZARD, GILLIGAN and ROLFE, Administrative Appeal Judges.
DECISION AND ORDER
Claimant appeals the Supplemental Decision and Order - Denying Attorney Fees (2014-LHC-00481) of Administrative Law Judge Alan L. Bergstrom rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 etseq. (the Act). The amount of an attorney's fee award is discretionary and will not be set aside unless it is shown by the challenging party to be arbitrary capricious, based on an abuse of discretion or not in accordance with law. Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 43 BRBS 67(CRT) (4th Cir. 2009); Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999).
On October 2, 2013, claimant injured his left leg while working for employer as a longshoreman. Claimant stopped work immediately and filed a claim for compensation on October 23, 2013.[1] Employer received formal notice of the claim from the district director on November 22, 2013, and voluntarily paid medical benefits for claimant's work injury through December 2, 2013, when claimant was cleared to return to work. Claimant returned to work on December 6, 2013. Employer controverted the claim on December 19, 2013. The administrative law judge awarded claimant temporary total disability benefits from October 2 through October 10, 2013, when employer established the availability of suitable alternate employment with no loss of wage-earning capacity.[2] Decision and Order at 18.
Subsequently, claimant's counsel filed a petition for an attorney's fee totaling $11, 136.28 for legal services provided and costs incurred while the case was pending before the administrative law judge.[3] Employer objected to the fee petition, arguing that it is not liable for a fee under Section 28 of the Act, 33 U.S.C. §928. Employer additionally objected to the hourly rates requested and the reasonableness of the fee requested in light of claimant's limited success. Claimant's counsel responded to employer's objections, asserting his entitlement to a fee under Section 28(a), 33 U.S.C. §928(a). Finding it undisputed that Section 28(b), 33 U.S.C. §928(b), is inapplicable because no informal conference was held, and that employer “paid ‘compensation' within the time set forth in §928(a)” because it voluntarily paid medical benefits during the 30-day period after receiving notice of the claim, the administrative law judge found that employer is not liable for an attorney's fee under the Act and denied claimant's fee petition. Supp. Decision and Order at 5.
On appeal, claimant challenges the administrative law judge's denial of an employer-paid attorney's fee. Employer responds, urging affirmance. Pursuant to the Board's Order dated February 14, 2017, the Director, Office of Workers' Compensation Programs (the Director), filed a brief on the matter. Employer filed a reply to the Director's brief.
Claimant contends the administrative law judge should have held employer liable for his attorney's fee under Section 28(a) because employer declined to pay any disability compensation. Employer asserts it paid claimant's medical benefits within the prescribed period and, thus, did not “decline to pay any compensation.” The Director asserts that employer declined to pay disability benefits and is liable for claimant's attorney's fee, albeit for reasons that differ from claimant's. The issue before the Board, therefore, is whether employer's payment of medical benefits within the 30-day period set forth in Section 28(a) constitutes payment of “compensation” such that employer cannot be held liable for an attorney's fee, despite claimant's success in obtaining disability benefits after using the services of an attorney. For the reasons set forth below, we reverse the administrative law judge's Supplemental Decision and Order and hold that employer is liable for an attorney's fee in this case.
Section 28(a) of the Act states:
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....
33 U.S.C. §928(a) (emphasis added). The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has held that an employer is not liable for an attorney's fee under Section 28(a) if it “admits liability for the claim by paying some compensation to the claimant” within 30 days after it receives notice of the claim from the district director. Lincoln v. Director, OWCP, 744 F.3d 911, 48 BRBS 17(CRT) (4th Cir.), cert. denied, 135 S.Ct. 356 (2014); Virginia Int'l Terminals, Inc. v. Edwards, 398 F.3d 313, 39 BRBS 1(CRT) (4th Cir.), cert. denied, 546 U.S. 960 (2005). In Lincoln, the employer paid one week of disability benefits based on the claimant's average weekly wage, and the Fourth Circuit rejected the claimant's argument that the term “any compensation” in Section 28(a) requires an employer to pay all disability payments claimed in order to avoid fee liability. Lincoln, 744 F.3d at 916, 48 BRBS 19-20(CRT). The court reasoned that when an employer pays “some” of the disability payments sought or “tenders any compensation” tied to the alleged injury, fee liability will not shift to the employer.[4] Id. The Lincoln court did not address medical benefits or whether they constitute “compensation” under Section 28(a).
It is well established, however, that the definition of “compensation” in Section 28(a) includes medical benefits in a contested case for purposes of establishing a “successful prosecution of the claim.”[5] Oilfield Safety & Machine Specialties, Inc. v. Harman Unlimited, 625 F.2d 1248, 14 BRBS 356 (5th Cir. 1980); Welch v. Pennzoil Co., 23 BRBS 395 (1990); Simeone v. Universal Terminal & Stevedoring Corp., 5 BRBS 249 (1976). Therefore, assuming other requirements are satisfied, a successful prosecution resulting in an award of medical benefits entitles the claimant to an employer-paid attorney's fee pursuant to Section 28(a). See Fagan v. Ceres Gulf, Inc., 33 BRBS 91 (1999); Gencarelle v. General Dynamics Corp., 22 BRBS 170, aff'd, 892 F.2d 173, 23 BRBS 13(CRT) (2d Cir. 1989); Speedy v. General Dynamics Corp., 15 BRBS 448 (1983); Timmons v. Jacksonville Shipyards, Inc., 2 BRBS 125 (1975).
After addressing case precedent on the various definitions of the term “compensation, ” the administrative law judge determined that Oilfield Safety and Simeone are the most instructive because they address the term as used in Section 28. Supp. Decision and Order at 3-5. The administrative law judge found that the term “compensation” in the phrase “declines to pay any compensation” in Section 28(a) includes medical benefits. Consequently, he concluded, employer's voluntary payment of claimant's medical benefits within the 30-day period after its receipt of notice of the claim constitutes the payment of “compensation” within the meaning of Section 28(a), relieving employer of liability for claimant's attorney's fee because it did not “decline to pay any compensation.”[6] Id.
Claimant contends the phrase “declines to pay any compensation” in Section 28(a) does not include medical benefits pursuant to 33 U.S.C. §902(12). See n.5, supra. Claimant asserts that “compensation” either does not include medical benefits at all or does not include medical expenses paid directly to the provider, as here. SeeWheeler v. Newport News Shipbuilding & Dry Dock Co., 637 F.3d 280, 45 BRBS 9(CRT) (4th Cir.), cert. denied, 565 U.S. 1058 (2011); Lazarus v. Chevron USA, Inc., 958 F.2d 1297, 25 BRBS 145(CRT) (5th Cir. 1992).[7] Employer responds that “compensation” as used in Section 28(a) includes medical benefits and that it did not “decline to pay any compensation” because it voluntarily paid medical benefits within the 30-day period.[8]
The Director contends the term “compensation” should be interpreted as including disability and/or medical benefits. That is, the claimant is entitled to an employer-paid attorney's fee where, as here, the claim filed is for both disability and medical benefits, the employer declined to pay one or the other type, and the claimant used the services of an attorney to obtain the denied benefit. The Director asserts that, because “compensation” is not a term of art and does not have a uniform meaning in all sections of the Act, its...
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