In May, 2010, the Benefits Review Board issued yet another attorney fee decision for practitioners in the Ninth Circuit. In the newest Christensen v. Stevedoring Services of America (BRB No. 03-0302R) decision, the BRB determined that (1) Oregon state workers’ compensation attorney rates could not establish a Longshore rate where Oregon rates were capped by statute “absent extraordinary circumstances;” and (2) workers compensation rates for defense attorneys do not establish the market rate for claimants’ attorneys. Additionally, but without citing the Supreme Court’s recent decision in Perdue v. Kenny A., the BRB determined that Claimant’s counsel was not entitled to an enhancement of fees (in the form of a fee calculation based upon counsel’s present market rate instead of his market rate when the services were performed) due to delay. The Ninth Circuit previously determined the “delay in the payment of a fee award distinguishable from a delay in payment of fees due on the merits of the case,” and the BRB accordingly rejected “claimant’s contention that he [was] entitled to the fee award at his current market rate as the delay was due to the appeals of the fee award.”
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
