Regina M. Werzbicke, widow of Jack Werzbicke, v. Consolidated Energy, Incorporated (Board decision, November 9, 2021)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board denied the employer's motion to reconsider its earlier affirmance of survivor benefits and ordered the employer to pay $1,925 in attorney fees. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Consolidated Energy asked the Board to reconsider its February 2021 decision affirming survivor benefits for Regina Werzbicke. No panel member voted to vacate or change that decision, so the Board denied reconsideration. Werzbicke's lawyer also requested $1,925 for 5.5 hours of work defending the benefit award before the Board. The employer did not object to the fee request. The Board found the fee reasonable and ordered the employer to pay counsel directly.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.409; attorney fees under 33 U.S.C. § 928 and 20 C.F.R. § 802.203.
• Outcome: Reconsideration denied; $1,925 in attorney fees awarded against the employer.
• Key point: The Board left its earlier benefit affirmance in place and approved an unopposed fee petition.

Full text (DOL BRB public release)

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

BRB No. 2020-0117 BLA

REGINA M. WERZBICKE
)
(Widow of JACK WERZBICKE)
)
)
Claimant-Petitioner
)
)
v. )
)
CONSOLIDATED ENERGY, ) DATE ISSUED: 11/09/202
INCORPORATED
)
)
Employer-Respondent
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
) ORDER on MOTION for
STATES DEPARTMENT OF LABOR
) RECONSIDERATION and
) AWARD of ATTORNEY
Party-in-Interest
) FEES

Employer has filed a timely motion for reconsideration of the Board’s Decision and Order in Werzbicke v. Consol Energy, Inc., BRB No. 20-0117 BLA (Feb. 24, 2021) (unpub.), affirming the award of benefits. 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407.
Neither Claimant nor the Director filed a substantive response to its motion.

No member of the panel has voted to vacate or modify the Board’s decision.
Therefore, Claimant’s motion for reconsideration is denied. 33 U.S.C. §921(b)(5); 20
C.F.R. §§801.301(c); 802.409.

Claimant’s counsel has filed a complete, itemized statement requesting an attorney’s fee for services performed before the Board in defending Claimant’s award. 20 C.F.R.
§802.203(a). Counsel requests a fee of $1,925.00 for 5.5 hours of legal services at an
hourly rate of $350. Employer has not filed objections to counsel’s fee petition.
Upon review of the fee petition, we find the requested fee to be reasonably commensurate with the necessary services performed in defending the awards of benefits.
We thus approve a fee of $1,925.00, for Employer to pay directly to Claimant’s counsel. 1
33 U.S.C. §928, as incorporated by 30 U.S.C. §932(a); 20 C.F.R. §802.203.

Accordingly, we deny Employer’s motion for reconsideration, and Employer is ordered to pay Claimant’s counsel an attorney’s fee of $1,925.00.

By Order of the Board:

Thomas O. Shepherd, Jr.
Clerk of the Appellate Boards

1 The Board’s award in this matter is of no precedential value given that counsel’s

fee petition is unopposed.