Federal Court of Appeals Refuses to Follow Contrary Fourth, Fifth, and Sixth Circuit Decisions on the Issue.
For all you attorneys specializing in practice under the Longshore and Harbor Workers’ Compensation Act (LHWCA), the next one is for you.
LHWCA section 928 provides that under certain circumstances employers must pay a “reasonable attorney’s fees” to the successful claimant. (33 U.S.C. sec. 928.) Section 928(a) imposes four conditions that must be satisfied in order to receive fees: (1) the claimant must file a claim with the Deputy Commissioner of the Office of Workers’ Compensation Programs (OWCP); (2) the employer must receive notice of the claim from the Deputy Commissioner; (3) the employer must decline to pay compensation or not respond within 30 days; and (4) the claimant must “thereafter” utilize the services of an attorney to prosecute his claim. (Day v. James Marine, Inc., 518 F.3d 411, 414 (6th Cir. 2008).)
In Dyer v. Cenex Harvest States Cooperative, Case No. 07-73549 (9th Cir. May 1, 2009) (for publication), employee’s attorney was not allowed to recover fees for the period between his client’s injury and Cenex’s refusal to compensate, known as the “pre-controversion” period. Counsel was awarded fees in the post-controversion period, but his hourly rate was reduced from $350 to $235. The fee award was vacated and remanded.
The Ninth Circuit held that employee was entitled to both pre- and post-controversion attorney’s fees, construing the “thereafter” language in section 928(a) in favor of employee and in accordance with the interpretation given to the language by the Director of OWCP. In coming to this conclusion, the Ninth Circuit departed company with contrary holdings reached by the Fourth, Fifth, and Sixth Circuits. (See Kemp v. Newport News Shipbuilding & Dry Dock Co., 805 F.3d 1152, 1153 (4th Cir. 1986); Weaver v. Ingalls Shipbuilding, Inc., 282 F.3d 357, 359 (5th Cir. 2002); Day, supra, 518 F.3d at 419 [Day was a 2-1 decision].)
Also, the Ninth Circuit remanded on the hourly rate issue, requesting the administrative review board to reevaluate the fee award under two recent pro-employee decisions, Christensen v. Stevedoring Services of America, 557 F.3d 1049 (9th Cir. 2009) and Van Skike v. Director, OWCP, 557 F.3d 1041 (9th Cir. 2009) [both of which were discussed in our March 5, 2009 post].