Freddie Mae Hyatt v. Director, Office of Workers’ Compensation Programs, et al.
Before this Court is plaintiff Freddie Mae Hyatt’s petition to review an attorney’s fee award rendered in an administrative adjudication under the LHWCA, Longshore and Harbor Workers’ Compensation Act. Specifically, Hyatt contended that the amount of the attorney’s fees awarded was too low.
Hyatt was employed by Ingalls Shipbuilding Division (subsidiary of Northrop Grumman Ship Systems Inc.) as a welder. Following a back injury, Hyatt made claims against Ingalls, a self-insured employer, for medical and compensatory benefits. Ingalls denied all of Hyatt’s claims except the cost of ambulance service to the hospital immediately following the back injury.
Following denial of Hyatt’s claims, Hyatt filed an administrative claim with the US Dept. of Labor Office of Workers’ Compensation Programs pursuant to the LHWCA.
Hyatt’s claim was referred to an Administrative Law Judge for resolution. The ALJ found that Hyatt suffered a compensable back injury and was temporarily totally disabled from the date of the injury for about a half year. The ALJ awarded past medical benefits and temporary disability benefits. The ALJ denied Hyatt’s permanent partial disability claim.
Pursuant to LHWCA’s fee-shifting provisions, Hyatt petitioned the ALJ for attorney’s fees and expenses after receiving this partially favorable determination. Hyatt’s attorney requested $16k in fees, and the ALJ awarded Hyatt $7k.
Hyatt moved for reconsideration and following the ALJ’s denial, petitioned the Benefits Review Board. The BRB affirmed the award and Hyatt sought an en banc review of the fee award pursuant to § 21(b)(5) of the LHWCA, § 921(b)(5).
The BRB denied Hyatt’s petition of rehearing en banc on procedural grounds alone. Specifically § 802.407(b) of the BRB’s rules of practice and procedure provides that every petition for rehearing en banc must accompany a motion for reconsideration directed to the panel which rendered the decision. That is, Hyatt failed to file a motion addressed to the BRB panel and offered no reason for rehearing en banc.
Hyatt petitioned this Court for review under § 921(c) of the LHWCA.
Did this Court review the BRB’s denial of Hyatt’s full request for attorney’s fees?
This Court recognized that the jurisdiction to review a BRB order is limited by the statute authorizing petition to the courts of appeals. As such, under § 921(c), any person adversely affected or aggrieved by a final order of the BRB may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred. Under this provision, filing must occur within 60 days following the issuance of the BRB order a written petition praying that the order be modified or set aside.
However, Hyatt failed to file a petition for rehearing within 60 days. This Court also found that they had no jurisdiction to review the underlying merits of the BRB and that Hyatt’s petition would have been properly filed in front of the BRB.
Knowing the filing requirements in a claim made under the LHWCA is crucial. The BRB’s rules of practice provide that an order is final after 60 days. Unless, a timely request for consideration by the Board has been filed.
If a timely request has been filed, the 60 day period for filing such petition for review will run from the issuance of the BRB’s decision on reconsideration.
Steve Gordon
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