The Defense Base Act (“DBA”) allows a claimant to shift liability for attorney’s fees to the employer and insurance carrier, if certain criteria are satisfied. In that context, sometimes fee disputes arise. In a fee dispute, the employer or insurance carrier argues that a claimant attorney’s hourly rate is excessive, or that certain time entries should not be paid. For the most part, this post does not address hourly rates. Instead, this post addresses the amount of time billed for particular tasks…and a proposed way for the Office of Administrative Law Judges (“OALJ”) or the Office of Workers’ Compensation Programs (“OWCP”) to avoid lengthy and often contentious fee litigation. Those agencies could adopt a fee procedure similar to Local Rule 54.3 from the Northern District of Illinois. How Local Rule 54.3 Helps: Sometimes, the attorneys hired by DBA carriers make hypocritical objections to time entries on a claimant attorney’s fee petition. ByRead more
Requiring the Defense’s Billing Records in Longshore/DBA Fee Disputes
When a claimant prevails in a Longshore or Defense Base Act claim, then the claimant may be entitled to shift the payment of attorney’s fees to the employer and its insurance carrier. See 33 U.S.C. § 928; see also Dyer v. Cenex Harvest States Co-op., 563 F.3d 1044, 1047 (9th Cir. 2009). Congress enacted the attorney fee statute in 1972 to incentivize employers to pay valid claims rather than contest them. Hunt v. Director, OWCP, 999 F.2d 419, 424 (9th Cir. 1993). Requiring shifting fees when a claimant must protect their rights makes sure that the money for the litigation does not come out of the claimant’s compensation payments. Sometimes, however, fee disputes arise between the successful claimant’s attorney and the insurance carrier’s attorney. In a fee dispute, the insurance carrier’s attorney objects to the successful attorney’s fee petition. But, what if the insurance carrier’s attorney’s objections are bogus when comparedRead more
Disclosing Defense Attorney’s Time Sheets in Fee Disputes
Attorney fees are heavily disputed in Defense Base Act and Longshore and Harbor Workers’ Compensation Act claims. In most cases, the injured worker’s fees shift from the worker to the employer and carrier. When fees shift, then the employer and carrier must pay the worker’s attorney. See 33 U.S.C. § 928. That’s where the arguments start. One common argument focuses on the time that a claimant’s attorney spent working on the case. Employers and carriers may argue that the attorney spent too much time on the file (i.e., that attorney spent an unreasonable amount of time litigating their claimant’s case). It should come as no surprise that the claimant attorneys take umbrage with these arguments. Some have suggested that defense attorneys should disclose the hours that they billed while defending a claim before attacking the hours that an injured worker’s attorney spent working on the claim. In fact, there wasRead more
9th Circuit Addresses Attorney Rates in Longshore Claims
Last week, the Ninth Circuit issued a new attorney fee decision that is sure to have a ripple effect throughout the Longshore and Defense Base Act community. It’s so important that I might have to amend my Year in Review post. The decision is Shirrod v. Director, OWCP. Attorney’s Fees Under the Longshore Act: Attorney’s fees are controlled by Section 28 of the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C. § 928 (1984). If an employer and carrier denies liability for indemnity or medical benefits, and they are subsequently found liable, then they must pay fees. It should come as no surprise that parties often debate the amount owed in attorney’s fees. According to Section 28(a), fees must be “reasonable.” Reasonableness starts with an equation called the “lodestar method.” The equation seems simple enough: multiply a reasonable hourly rate by the number of hours reasonably expended on aRead more
Board Addresses ALJ Review of Attorneys Fees in Settlements
The Benefits Review Board issued a pair of unpublished attorney fee decisions that are interesting when read in tandem. The decisions address attorneys fees paid pursuant to a settlement agreement after the employer/carrier negotiated a fee amount with the claimant’s attorney. The parties to Longshore and Defense Base Act claims may voluntarily settle their disputes, provided that the settlement is adequate and was not procured by duress. See 33 U.S.C. 908(i). The parties can include a fee for the claimant’s attorney in their settlement agreement. Once an agreement is reached, the parties submit their settlement to an adjudicator. For this post, assume that the adjudicator is an administrative law judge (“ALJ”). After receipt of the settlement application, the ALJ must take one of the following four actions within 30 days: Issue a deficiency notice if the application is incomplete; Approve the settlement if it is adequate and not procured byRead more
The Supreme Court Refused to Review Lincoln v. Director, OWCP
On October 14, 2014, the Court issued its second Order List for the 2014 term. One of the cases that the Supreme Court denied was Lincoln v. Director, OWCP. Lincoln was an interesting case that involved the attorneys fee provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the meaning of the term “compensation.” The facts of Lincoln are fairly straight forward. The employee filed a hearing loss claim on May 24, 2011. Initially, the employer filed a notice of controversion stating that the hearing loss was noise-induced, but it needed additional information to determine the correct disability payment. On June 14, 2011, the district director served notice that the claim was filed. Then, on July 7, 2011, the employer voluntarily paid employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of permanent partial disability benefits under the maximum compensation rate.Read more
The BRB Went on an Attorney Fee Tear in Early 2014
Did anyone else notice that the Benefits Review Board went on a tear in January and February 2014 with respect to Longshore attorney fee decisions? See below: Leffard v. Eagle Marine Servs., BRB No. 13-0199 (Jan. 17, 2014) (addressing hourly rate, fee petition evidence, and time spent preparing a response to employers’ objection to claimant’s counsel’s fee petition). Richey v. Premiere, Inc., BRB No. 13-0216 (Jan. 17, 2014) (affirming award of Section 28(a) fees for failing to pay compensation within 30 days). Modar v. Maritime Servs. Corp., BRB No. 13-0319 (Jan. 17, 2014) (affirming district director’s decision to “enhance counsel’s attorney’s fee for services performed in 2004 and 2005 by using 2008 hourly rates rather than 2012 hourly rates….”). Huggins v. Massman Traylor Joint Venture, BRB N. 13-0223 (Jan. 28, 2014) (affirming ALJ’s reduction of fees by 30% based on claimant’s limited success in obtaining benefits.). Keniston v. Crowley MarineRead more
Fourth Circuit Denies LHWCA Attorney’s Fees Because Compensation Was Paid Within 30 Days
In a new, important Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision, the Fourth Circuit addressed Section 928(a) attorney’s fees and the meaning of “compensation” for that statute. In Lincoln v. Dir., OWCP, the employee filed a hearing loss claim on May 24, 2011. Two days later, the employer filed a notice of controversion explaining that it accepted the fact that the employee’s hearing loss was noise-induced, but that it need additional information to determine the correct disability payment. The OWCP did not formally serve notice of the claim on the employer until June 14, 2011. Then, on July 7, 2011, the employer voluntarily paid the employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of PPD pay under the maximum compensation rate. Ultimately the claim settled for the value of a 10% binaural hearing loss. The issue in this case arose whenRead more
