Claimant injured his ankle at work on October 7, 2004, and Employer paid temporary total disability benefits from October 8, 2004 through June 13, 2005. On July 27, 2005, Employer received notice that Claimant filed a claim for additional compensation. It controverted the claim but still paid benefits for July 21 and 22, 2005. Employer also reinstated benefits beginning August 2, 2005, and continued paying benefits through May 10, 2007.
At an informal conference before the District Director, Claimant alleged that he should be allowed to be treated by a different physician, and that Employer owed him additional compensation for a back injury. The District Director disagreed and Claimant referred the claim to the Office of Administrative Law Judges. The judge determined that Claimant was entitled to switch physicians and that Claimant’s back injury was caused by the 2004 work injury.
Claimant’s attorney then requested attorneys fees. The District Director denied fees, finding that Employer voluntarily paid some benefits and did not reject any recommendations. The judge, however, awarded Section 28(a) fees because claimant prevailed on the choice of physician and back injury issues. On appeal, the Benefits Review Board (“BRB”) determined that Section 28 fees were not owed.
The Fifth Circuit agreed with the BRB. Section 28(a) did not apply because Employer paid some compensation within thirty days of Claimant’s July 27, 2005, request for additional benefits. Section 28(b) did not apply either:
Here, the first two requirements of § 28(b) were met because an informal conference was held July 2009; and the District Director issued a written recommendation as detailed above. However, the third requirement was not fulfilled because Northrop did not refuse to adopt the those recommendations. It is irrelevant that Northrop subsequently disagreed with the ALJ’s contrary findings because § 28(b) mandates that the employer must refuse the written recommendation of the deputy or Board. See Andrepont, 566 F.3d at 421. Further, nothing in the LHWCA or any case law supports Simmons’s assertion that there is an “equitable exception” that allows fee-shifting even when § 28(b)’s requirements are not fully met. Therefore, the BRB properly reversed the ALJ and affirmed the District Director’s denial of attorney’s fees payable by Northrop pursuant to §§ 28(a) and (b).
BRB Opinion: Simmons v. Northrop Grumman Ship Sts., Inc., BRB No. 11-0424 (2012).