The Benefits Review Board (“BRB”) recently affirmed its earlier decision in Wilson v. Service Employees Int’l, Inc.  Following a timely motion for reconsideration, the BRB again examined whether Section 28(b) fees are owed following a refusal to pay Section 10(f) adjustments, which are included within the scope of a permanent total disability recommendation or award as a matter of law.  Although the employer continued paying voluntary disability benefits before and after the district director’s written recommendation via correspondence, see 20 C.F.R. § 702.311, it nonetheless litigated the claimant’s entitlement to Section 10(f) adjustments.  Because claimant was successful, the BRB held that he was entitled to payment of his attorney’s fee under Section 28(b). Wilson v. Service Employees Int’l, Inc., No. 10-0261 (BRB Feb. 16, 2011). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)

The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers.  See 33 U.S.C. § 922 (1984). Section 22 of the LHWCA provides in pertinent part: “Upon his own initiative, or upon the application of any party in interest [,] … on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case … [and] issue a new compensation order which may terminate, continue, reinstate, increase,Read more

In a new published opinion, the Benefits Review Board (“BRB”) determined that a claimant’s attorney may recover fees for the time spent drafting a fee petition.  Here, the Claimant argued that general federal fee-shifting law applies to the determination of a reasonable fee under Section 28 of the Longshore and Harbor Workers Compensation Act (“LHWCA”).  Further, the United States Court of Appeals for the Third Circuit, has determined that attorneys can recover a fee for the reasonable amount of time it takes to prepare a fee petition. The BRB agreed.  Although a previous en banc BRB decision disallowed fees for the preparation of a petition on the grounds that the work was not reasonably necessary to protect a claimant’s interest, see Sproull v. Stevedoring Servs. of America, 28 Ben. Rev. Bd. Serv. (MB) 271, 277 (1994) (en banc), subsequent federal appellate decisions held differently.  For instance, the Ninth Circuit heldRead more

The Benefits Review Board (“BRB”) recently considered Section 8(c)(22) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and whether that statute requires consecutive payments for multiple scheduled losses.  In Thornton v. Northrup Grumman Shipbuilding, Inc., the Claimant sustained a right knee injury that resulted in a 15% impairment to the right leg.  The Claimant then suffered a second injury which resulted in a 43% impairment to his left leg.  The Employer accepted both claims and it paid compensation in accordance with the ratings.   It first paid the right leg impairment and then it paid for the left leg impairment.  While payments for the left leg were ongoing, Claimant’s right leg impairment increased to 50%.  The conflict between the parties concerned the start date for the payments associated with the additional right leg impairment.  Claimant contended that payments should have started in 2007, when the doctor assigned the increased impairment, and that heRead more