The Benefits Review Board (“BRB”) recently entered a Decision and Order reversing an Administrative Law Judge’s (ALJ) award of attorney’s fees on a disputed hearing loss case, Bary v. Global American Terminals, LLC (BRB No. 18-0237, November 8, 2018, unpublished).

Bary v. Global American Terminals, LLC Background

The Claimant was an employee of the Port of Louisville who sustained employment-related hearing loss. Claimant’s counsel first named the Claimant’s nominal employer as the last responsible employer liable for the Claimant’s hearing loss benefits. The Claimant retired from maritime employment in 2002.

The Claimant obtained an audiogram in 2011 that reflected hearing loss and subsequently filed a LS-203 against the nominal employer. However, after a year of litigation, the Claimant discovered that the assets and liabilities of its nominal employer was sold to a different entity in 2001. The Claimant amended his LS-203 and separately named Claimant’s subsequent employer that purchased those assets and liabilities. Counsel for the subsequent employer controverted the matter and filed its LS-207 in May 2012.

BRB Ruling on Pre-Controversion Attorney’s Fees

Eventually, the substantive claim settled on a disputed basis. The parties reserved on settlement of attorney’s fees. Counsel for the Claimant subsequently submitted a fee petition to both the Department of Labor and the Office of Administrative Law Judges that requested payment for all fees incurred even prior to the involvement of the subsequent employer. The presiding ALJ issued a Decision and Order affirming Claimant’s fee petition in full and awarding all hours submitted.

The subsequent employer appealed to the BRB, arguing that it should not be liable for pre-controversion fees pursuant to Section 28(a). Under Section 28(a), an employer is liable for a claimant’s attorney’s fees if the claim is denied and the claimant “thereafter” uses the services of an attorney who successfully prosecutes the claim. The BRB held that its own precedent clearly mandated an employer is not liable for “pre-controversion” fees under Section 28(a). However, the BRB remanded the matter back to the ALJ in order to determine the exact date that Employer’s liability commenced.