Case Law

Date Decided: May 1^st, 2009

Originally Filed in: Washington (Federal)

Decided by: U.S. Court of Appeals, Ninth Circuit (Federal)

Court: The United States Court of Appeals for the Ninth Circuit

Judge: Judge Fletcher

Citation: 563 F.3d 1044 (9th Cir. 2009)

Background:
Employee, who prevailed in workers’ compensation claim for hearing loss under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), appeals an order of the Benefit Review Board (“BRB”) denying in part his claim for attorney fees.

On May 3, 2005, Rex Dyer (“Dyer”) filed a claim for hearing loss under the LHWCA against Cenex and its workers’ compensation insurance carrier, Liberty Mutual Insurance Company. Cenex received the notice of Dyer’s claim and shortly thereafter contested liability and refused to pay.

Dyer was awarded a settlement of $33,497.57, including reasonable attorney’s fees, and an Administrative Law Judge from the Office of Workers’ Compensation Programs (“OWCP”) approved.

Dyer submitted an application for attorney’s fees to the OCWP for the date representation began, January 31, 2005, through July 10, 2005, the date of the fee request. Cenex objected to paying attorneys’ fees prior to June 30, 2005 and the OCWP’s director ruled in favor of Cenex which was affirmed by the BRB.

Issues:
Did the BRB err in ordering Cenex to pay attorney’s fees for after June 30, 2005 to the date of the request?

Held:
The Plaintiff contends he is subject to attorney’s fees under §928(a) of the LHWCA, which awards attorney’s fees to the claimant when the employer denies out-right liability thirty days following notification of a claim. Moreover, “if the employer denies compensation on the ground there is no liability for compensation, and the person shall thereafter have utilized the services of an attorney at law and is successful in the prosecution of his claim, shall be awarded, in addition to compensation, a reasonable attorney’s fee against the employer”  

Dyer contends the word “thereafter”  refers to the time period following the employer’s refusal to pay. This Court agreed with the plaintiff, and held that following refusal to pay, on basis of contested liability, after notification of a claim, Dyer was subject to pay attorney’s fees upon the successful prosecution of his claim.

Comments:
Attorney’s fees are statutorily provided under the LWHCA by two provisions. (1) If the employer denies out-right liability following notification of a claim and the claimant successfully prosecutes and is ordered compensation, as was the case here. Also, if the employer (2) accepts liability and pays or tenders some compensation, but a controversy develops over additional compensation.

Under the second instance, an employer who disputes the recommendation of the BRB or Administrative Judge, may be liable to attorneys’  fees if the claimant successfully prosecutes his/her claim.

Steve Gordon