The Benefits Review Board (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees. The issues, which pop up constantly in practice, were (1) which carrier owes attorneys fees in a multiple carrier case, and (2) to what extent are fees owed. In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was joined to the workers’ compensation claim.
The holding in Weimer is an offshoot of the last responsible employer/carrier doctrine. Pursuant to that doctrine, the employer/carrier “for which the claimant worked at the time of the last aggravating injury that resulted in disability is liable for the claimant’s entire disability irrespective of the degree of the last injury’s contribution.” In Lopez v. Stevedoring Servs. of America, 39 BRBS 85 (2005), aff’d mem., 377 F.App’x 640 (9th Cir. 2010), the BRB applied the logic of the last responsible employer rule to resolve an attorney fee liability issue. The last responsible employer was “liable for the attorney’s fees accrued in the claims against all three employers including those fees incurred before SSA was joined to the claim.” A similar result was reached in S.T. [Towne] v. California United Terminals, 43 BRBS 82 (2009), aff’d mem., 414 F.App’x 941 (9th Cir. 2011) (affirming award of all fees against liable employer).
Note: Check out footnote 4 of the Weimer decision which notes that the responsible employer in Towne “did not pay any benefits to the claimant within 30 days of its joinder to the claim….” I think this footnote heralds the next piece of the last responsible employer/carrier attorney fee puzzle. Suppose a claimant litigated a claim against a prior employer for three years and then learned that another employer–a more recently employer–may be liable for benefits. The claimant joins the subsequent employer to the litigation and it promptly pays benefits within 30 days of its joinder. The subsequent employer stipulates that it is liable for benefits. Should the subsequent employer still be liable for all fees when it promptly paid benefits simply because the prior employer denied liability for three years? Wasn’t the prior employer correct in denying liability when the subsequent employer stipulated to liability? In my opinion, this issue has not been resolved in its entirety.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)