Longshore Employer Was Not Liable For a Section 28(c) Lien on Compensation

Claimant sustained a work-related injury on October 7, 2004.  Administrative Law Judge Kennington awarded Claimant temporary total disability benefits on December 10, 2010.  Thereafter, Claimant’s counsel filed fee petitions with both the District Director and the ALJ asserting he was owed an employer-paid fee pursuant to Section 28(a) or (b) of the Longshore and Harbor Workers Compensation Act.  The District Director stated the requirements of Section 28(a) or (b) were not met, and Claimant’s counsel could pursue a fee payable by Claimant under Section 28(c).  Claimant agreed to pay his attorney’s fee, and on January 31, 2011, the District Director awarded Claimant’s counsel a “lien on compensation” in the amount of $3,562.50.  On April 12, 2011, the ALJ awarded Claimant’s counsel a fee of $17,625.00 payable by employer. The BRB affirmed the District Director’s award of a “lien on compensation” and reversed the ALJ’s award of the employer-paid attorney fee.

Claimant appealed the District Director’s lien on compensation to the United States Court of Appeal for the Fifth Circuit.  Claimant died on December 18, 2012.  In a decision issued on January 28, 2013, the Fifth Circuit affirmed the BRB’s decision that Claimant’s counsel was not entitled to an employer-paid fee.  Following issuance of the decision, Claimant’s counsel sought to have Employer held personally liable for payment of the lien on compensation because while the claim was pending appeal, Employer continued to pay Claimant disability benefits without consideration of the lien.  Claimant’s counsel asserted he was not paid any fees during the appeal, and because of Claimant’s untimely death, he was unable to collect his fee as a lien on Claimant’s future benefits.  While the argument was creative, the ALJ denied Claimant’s counsel’s request.

Section 28(c) provides, in pertinent part, that attorney’s fees may be assessed against Claimant as a lien on compensation when Claimant’s counsel obtained compensation for Claimant but is not entitled to an employer-paid fee under Section 28(a) or (b).  A fee awarded under Section 28(c) must fix both the lien amount and the manner of payment of such lien.  Claimant’s counsel submitted both proposed Orders to the District Director and the ALJ for payment of his fee under Section 28(c), but neither Order indicated the manner in which the approved fees were to be paid.  In the absence of an Order of the District Director and ALJ specifying the manner of payment, Employer could not be viewed as having failed to secure counsel’s lien.  As such, the BRB affirmed the ALJ’s denial of Claimant’s Counsel’s request to hold Employer personally liable for payment of his fee pursuant to the lien.

Simmons v. Huntington Ingalls, Inc., BRB No. 14-0015 (2014).