Claimant’s “Second Claim” Did Not Entitle Him to Section 28(a) Attorney’s Fees

After the claimant suffered an ankle injury on October 7, 2004, the employer began paying temporary total disability (“TTD”) benefits immediately, until June 13, 2005.  Thereafter, when the claimant filed an additional claim for benefits, the employer controverted the claim but nonetheless paid additional TTD benefits within 30 days.  While the claimant was receiving these additional TTD benefits, he filed a “second claim,” stating that he also injured his back in the 2004 incident.  The employer controverted this new back claim, but it continued paying TTD benefits.

Two years after TTD benefits ended, the district director held an informal conference.  The only recommendations made were that (1) the claimant was not authorized to switch to another physician, and (2) that claimant should submit medical reports to his employer about the back condition.  Instead of submitting the medical reports, the claimant chose to refer the claim for a formal hearing.  Ultimately, the Administrative Law Judge (“ALJ”) determined that the claimant was entitled to TTD benefits, medical benefits for his back condition, and a new back physician.

The question presented to the Benefits Review Board (“BRB”) was whether the claimant was entitled to shift fees pursuant to Sections 28(a) or 28(b) of the Longshore and Harbor Workers’ Compensation Act.  The BRB denied fees.

Generally, Section 28(a) applies when an employer declines to pay any benefits within 30 days of receiving notice of the claim and the claimant successfully prosecutes his claim.  Here, the claimant received benefits within 30 days of the initial injury.  Further, the employer reinstated benefits within 30 days of its receipt of claimant’s claim for additional benefits.  It did not matter “[t]hat claimant subsequently sought additional benefits for a back injury arising out of the same work incident” because the employer paid benefits within 30 days of its receipt of a claim.   Payment of fees within the first 30 days, regardless of the “second claim” was determinative and rendered Section 28(a) inapplicable.

Section 28(b) was also inapplicable.  Pursuant to the Fifth Circuit, “the following are prerequisites to an employer’s liability under Section 28(b): (1) an informal conference; (2) a written recommendation from the district director; (3) the employer’s refusal to accept the written recommendation; and (4) the employee’s procuring of the services of an attorney to achieve a greater award than what the employer was willing to pay after the written recommendation.”  Here, the employer did not reject the district director’s recommendations; and instead of securing the back-related medical records–which is what the district director recommended–the claimant referred the claim for formal hearing.  Even though the claimant achieved success before the ALJ, that did not matter because the employer never rejected the director’s recommendation.  Without a rejection, Section 28(b) was inapplicable.

Simmons v. Northrup Grumman Ship Systems, Inc., BRB Nos. 11-0424, 11-0536 (BRB 03/09/2012) (unpublished).

Opinion: This would be a good case for the BRB to publish, particularly because of the BRB’s discussion of Section 28(a) and the “second claim.”