Summary of the 1972 Amendment to the Longshore Act Regarding Attorneys’ Fees

It is sort of a slow news day, so here is a little slice of history.  In 1972, the Longshore and Harbor Workers’ Compensation Act underwent a substantial amendment.  Attorneys’ fees were one of the focuses of the amendments.  Here is what Mr. Thomas Eagleton (from the Committee on Labor and Public Welfare) said in his September 14, 1972 report about Longshore attorney’s fees:

S. 2318 amends section 28 of the Act to authorize assessment of legal fees against employers in cases where the existence or extent of liability is controverted and the claimant succeeds in establishing liability or obtaining increased compensation in formal proceedings or appeals.  Attorneys fees may only be awarded against the employer where the claimant succeeds, and the fees awarded are to be based on the amount by which the compensation payable is increased as a result of litigation.  Attorneys fees may not be assessed against employers (or carriers) in other cases.

In all cases, the amount of attorneys fees payable to the claimants lawyer (either by the employer or the claimant) is subject to approval by the deputy commissioner, hearing examiner, board or court, as the case may be.

Further explanation of the attorney fee shifting provision can be found later in the report:

Section 13 amends section 28.

Subsection (a) would require the award of an attorney’s fee payable by the employer if the employer had refused payment of compensation and the employee had hired an attorney to successfully prosecute the claim.  The fee would be approved by the deputy commissioner, Board, or Court, as applicable.

Subsection (b) would require an informal conference before the deputy commissioner if the employer offered to pay compensation without an award and there was a controversy over the amount of compensation.  The deputy commissioner would recommend a settlement.  If the employer refuses the settlement, he must offer to pay the amount he thinks is due.  If the employee refuses that offer, hires an attorney and obtains an award greater than that offer, he shall be awarded an attorney’s fee based on the amount of the increase payable by the employer.  The latter provision for attorneys’ fees shall not apply when the controversy relates to degree or length of disability and the employer or carrier agree to submit the case to doctors chosen as provided for in section 7(e) and offer to pay an amount based on the medical report.  However, if such an award is being reviewed by the Review Board or a court and there are findings favorable to the employee, the Review Board or court may award a reasonable attorney’s fee payable by the employer or carrier.  No attorney’s fee may be assessed against the employer in any other case.

Subsection (c) provides that in any proceedings before the Review Board or a court, the Board or the court shall approve the attorney’s fee for work done before it by the attorney for the employee.

Subsection (d) provides that where the employer or insurance carrier is required to pay an attorney’s fee, they may also be required to pay costs and fees for the attendance of witnesses: such fees must be approved by the deputy commissioner.

Subsection (e) provides that failure to obtain approval of an attorney’s fee for representation of employees is made an offense punishable by a fine of $1,000 or imprisonment for one year or both.