Kenneth Carrell v. B & S Welding, Incorporated and Signal Mutual Indemnity Association, Limited (Board decision, April 11, 2018)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board affirmed the district director's order requiring the employer to pay Kenneth Carrell's $2,420.79 attorney fee and expenses. A Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Kenneth Carrell worked as a crane operator and supervisor on offshore oil rigs and sought benefits for hearing loss. B & S Welding initially paid for a one percent impairment, but an informal conference led the district director to recommend benefits based on a 29.1 percent impairment. The employer neither offered additional payment after the written recommendation nor accepted responsibility for the larger claim, and the parties later settled for benefits based on a 24.85 percent impairment. The district director ordered the employer to pay Carrell's counsel $2,420.79 in fees and expenses. The Board affirmed because Carrell obtained more than the employer had offered after the conference and rejected the employer's request to charge the fee against Carrell's compensation.

Decision snapshot

• Authority: Attorney fee liability under 33 U.S.C. § 928(b), with the Outer Continental Shelf Lands Act extension at 43 U.S.C. § 1333(b).
• Outcome: The district director's $2,420.79 attorney fee and expense award was affirmed, payable by the employer.
• Key point: An employer that does not tender additional compensation after a written conference recommendation may owe the claimant's attorney fee when the claimant later obtains more.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 17-0560

KENNETH CARRELL
)
)
Claimant-Respondent
)
)
v. )
)
B & S WELDING, INCORPORATED
)
)
and
)
)
SIGNAL MUTUAL INDEMNITY
) DATE ISSUED: Apr. 11, 2018
ASSOCIATION, LIMITED
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent
) DECISION and ORDER

Appeal of the Compensation Order Award of Attorney’s Fees of David A.
Duhon, District Director, United States Department of Labor.

Jeffrey P. Briscoe, Metairie, Louisiana, for claimant.

Kathleen K. Charvet (Galloway, Johnson, Tompkins, Burr & Smith, PLC), Houston, Texas, for employer/carrier.

Ann Marie Scarpino (Kate S. O’Scannlain, Solicitor of Labor; Maia S.
Fisher, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
 Before: HALL, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.

PER CURIAM:

Employer appeals the Compensation Order Award of Attorney Fees (Case No. 07-
307840) of District Director David A. Duhon rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Outer Continental Shelf Lands Act, 43 U.S.C.
§1333(b) (the Act). The fee award of the district director must be affirmed unless it is shown by the challenge party to be arbitrary, capricious, based on an abuse of discretion, or not in accordance with law. See Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986); Roach v. New York Protective Covering Co., 16 BRBS 114 (1984).

   This case arises out of a claim for benefits for binaural hearing loss. Claimant

worked for employer as a crane operator and supervisor on offshore oil rigs from January 6, 2010 until November 13, 2015. See DX 10 ¶ 1. Claimant underwent an audiogram on January 13, 2016 that showed a 29.1 percent binaural hearing loss. DX 10 ¶ 4. Claimant filed a claim for benefits on February 29, 2016, based on an average weekly wage of
$1,499.25. DX 1; DX 7. The district director notified employer of the claim on March 8, 2016.

   On April 1, 2016, employer paid claimant compensation of $845.73 per week

(based on an average weekly wage of $1,268.59) for two weeks for a one percent binaural hearing loss. DXs 3, 4. On April 7, 2016, employer controverted the claim, stating “Employer accepts loss as poten[t]ially noise induced, has volunteered 1%
[permanent partial disability], and awaits confirmation of rating, wages, and relationship to employment.” DX 5.

   An informal conference was held on April 26, 2016. The district director

recommended in writing that employer pay claimant permanent partial disability benefits for a 29.1 percent binaural hearing loss, but stated that if employer presented a contrary audiogram of equal probative value, the impairment ratings would be averaged, if the variance was 20 percent or less, to determine the extent of claimant’s hearing loss. DX 7. The district director also encouraged the parties to stipulate to claimant’s average weekly wage; if not, the district director stated that he would issue another recommendation after reviewing wage evidence. See id. Employer did not file another Notice of Controversion and did not pay claimant any additional compensation. The case was referred to the Office of Administrative Law Judges for a formal hearing on June 28, 2016. Employer raised issues concerning claimant’s average weekly wage, the need for medical treatment, causation, and the extent of claimant’s disability.

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In April 2017, the parties entered into a settlement agreement under Section 8(i), 33 U.S.C. §908(i), in which employer agreed to pay claimant a total of $47,983.69 for a 24.85 percent binaural hearing loss which included a credit for the amount employer already paid. DX 10 ¶ 9. The settlement was approved by an administrative law judge on May 9, 2017. DX 11.

   Thereafter, claimant’s counsel filed a petition for an attorney’s fee with the district

director. On June 21, 2017, the district director issued a Compensation Order, awarding claimant’s counsel an attorney’s fee under Section 28(b) of the Act, 33 U.S.C. §928(b). The district director found that employer did not accept his written recommendations following the informal conference and, ultimately, claimant was successful in obtaining additional benefits. Compensation Order at 3. The district director awarded claimant’s counsel an attorney’s fee of $2,420.79 for 10.7 hours of work at $225 per hour plus
$13.29 in expenses, payable by employer. Id.

    Employer appeals the district director’s Compensation Order, contending it is not

liable for an attorney’s fee under Section 28(b) and that the attorney’s fee award should be a lien on claimant’s compensation under Section 28(c). The Director, Office of Workers’ Compensation Programs, and claimant each filed a response brief, urging affirmance.

  Section 28(b) applies where the employer has paid compensation without an

award and a controversy then develops over the amount of additional compensation due. 33 U.S.C. §928(b)1; W.G. [Gordon] v. Marine Terminals Corp., 41 BRBS 13 (2007).

   1
       Section 28(b) states:

   If the employer or carrier pays or tenders payment of compensation without
   an award pursuant to section 914(a) and (b) of this title, and thereafter a
   controversy develops over the amount of additional compensation, if any,
   to which the employee may be entitled, the [district director] shall set the
   matter for an informal conference and following such conference . . . shall
   recommend in writing a disposition of the controversy. If the employer or
   carrier refuse [sic] to accept such written recommendation, within fourteen
   days after its receipt by them, they shall pay or tender to the employee in
   writing the additional compensation, if any, to which they believe the
   employee is entitled. If the employee refuses to accept such payment or
   tender of compensation and thereafter utilizes the services of an attorney at
   law, and if the compensation thereafter awarded is greater than the amount
   paid or tendered by the employer or carrier, a reasonable attorney's fee
   based solely upon the difference between the amount awarded and the
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The United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, has held that the following requirements must be met before an employer may be liable for an attorney’s fee under Section 28(b): (1) an informal conference; (2) a written recommendation from the district director; (3) the employer’s refusal to accept the written recommendation; and (4) claimant’s obtaining a greater award than what the employer was willing to pay after the written recommendation. Andrepont v. Murphy Exploration & Prod. Co., 566 F.3d 415, 43 BRBS 27(CRT) (5th Cir. 2009); see also Staftex Staffing v. Director, OWCP, 237 F.3d 404, modified on reh’g on other grounds, 237 F.3d 409, 35 BRBS 26(CRT) (5th Cir. 2000).

    Employer contends that it should not be held liable for an attorney’s fee under

Section 28(b) because it did not reject the district director’s recommendation following the informal conference but, in fact, accepted liability. Employer bases its argument on the statement in its LS-207, Notice of Controversion, that it “accepts loss as poten[t]ially noise induced,” but “awaits confirmation of rating, wages, and relationship to employment.” DX 5.

    We reject employer’s contention. Employer’s LS-207 did not purport to accept

liability for benefits for claimant’s hearing loss, as the form specifically states that employer was awaiting confirmation of the relationship of the hearing loss to employment, without which employer would not be liable for benefits. Moreover, employer’s LS-207 does not constitute an acceptance of the district director’s recommendation because it was filed prior to the informal conference and the district director’s recommendation.

   Employer’s actions after the informal conference also do not indicate that

employer accepted the district director’s recommendations. Employer relies primarily on the fact that it did not file another notice of controversion or otherwise take action after the informal conference. This is not sufficient to relieve employer of liability for an attorney’s fee under Section 28(b). Section 28(b) states that within fourteen days of the recommendation, employer “shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled.” 33 U.S.C.
§928(b). The Board has stated that employer may avoid liability if it makes an offer that “demonstrates ‘a readiness, willingness and ability on the part of employer or carrier, expressed in writing, to make a payment to the claimant.’” Jackson v. Newport News Shipbuilding & Dry Dock Co., 38 BRBS 39 (2004) (quoting Armor v. Maryland Shipbuilding & Dry Dock Co., 19 BRBS 119, 122 (1986) (en banc)).

   amount tendered or paid shall be awarded in addition to the amount of
   compensation. . . .
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Here, employer did not offer to pay any further compensation to claimant after the district director issued his written recommendation. This is supported by employer’s pre- hearing statement filed on July 22, 2016, in which employer stated that it “dispute[d] causal relationship.” DX 9. In disputing any liability to claimant, employer thereby rejected the district director’s recommendation that claimant was entitled to permanent partial disability benefits for his hearing loss. See, e.g., Carey v. Ormet Primary Aluminum Corp., 627 F.3d 979, 44 BRBS 83(CRT) (5th Cir. 2010). Thereafter, claimant used the services of counsel in reaching a settlement in which claimant obtained greater compensation than employer voluntarily paid after the informal conference. The district director correctly concluded that this case falls within the parameters of Section 28(b) and we affirm his finding that employer is liable for claimant’s attorney’s fee.2 Bolton v. Halter Marine, Inc., 35 BRBS 161 (2001).

    Accordingly, the district director’s Compensation Order Award of Attorney’s Fees

is affirmed.

   SO ORDERED.


                                     ____________________________________
                                     BETTY JEAN HALL, Chief
                                     Administrative Appeals Judge


                                     ____________________________________
                                     GREG J. BUZZARD
                                     Administrative Appeals Judge


                                     ____________________________________
                                     JONATHAN ROLFE
                                     Administrative Appeals Judge



   2
     Thus, we reject employer’s contention that the attorney’s fee should be a lien on

claimant’s compensation under Section 28(c). Section 28(c) can apply only if an employer is not liable under either Section 28(a) or 28(b). See Simmons v. Huntington Ingalls Inc., 48 BRBS 45 (2014), aff’d sub nom. Simmons v. Director, OWCP, 509 F. App’x 337 (5th Cir. 2013); Thompson v. Northrop Grumman Shipbuilding, Inc., 44 BRBS 71 (2010).

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