BRB Finds Section 28(a) Fee Liability Applies Throughout Claim

On November 26, 2013, the Benefits Review Board issued its decision in Bell v. SSA Terminals, LLC, BRB No. 13-0055, which addressed a claim for attorney fees in a completely controverted claim.  Employer and Carrier had failed to pay benefits to Claimant within thirty days of service of his claim for benefits, but subsequently accepted and paid the claim.  Several disputes existed with respect to counsel’s claim for attorney fees and costs.  The Administrative Law Judge disallowed attorney fees after the Carrier accepted the claim and issued payment for benefits, finding that there was no further dispute upon the tender of benefits.

The BRB reversed the ALJ, stating that once the Employer and Carrier fail to pay benefits within thirty days of service of the claim, triggering the application of Section 28(a), the claim is thereafter governed by Section 28(a) and the Employer and Carrier cannot thereafter stop the entitlement to attorney fees with a subsequent tender of benefits.

This decision has significant implications to Employers and Carriers, in that a Claimant’s attorney can attempt to “run up the bill” even after a claim has been accepted and paid by the Employer and Carrier.  What this claim leaves unanswered is how long fee liability attaches.  Once a claim is resolved by litigation and all amounts due are paid, in the absence of a new dispute, there should be no continuing fee liability for a Claimant’s attorney to “monitor” the ongoing claim. The BRB’s decision does not explain the scope of its decision, so this will be left to further litigation.  It should make Employers and Carriers cautious before completely controverting a claim, as fee liability can be a significant factor in many claims.  In Bell, the liability to Claimant for indemnity benefits appears to have been approximately $80,000, and the attorney fee claim was for over $55,000, almost 70% of the indemnity exposure.