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Federal court upholds injured longshoreman’s right to attorney fees
Under a recent ruling by the Fifth Circuit Court of Appeals in New Orleans, it was upheld that a longshoreman had been improperly denied recovery of his attorney’s fees. Here is the back story.
James Carey was injured on the job as a longshoreman for Ormet Primary Aluminum Corporation, an aluminum manufacturer based in Hannibal, Ohio. The injuries were unspecified. At first, the company voluntarily paid him benefits but eventually decided the rate was too high. Carey should instead receive fewer benefits based on a lower weekly pay rate, Ormet demanded.
The matter was brought before an informal conference, where a district director ruled that Ormet was wrong to attempt to cut the payments. Though the company disagreed with the decision, it continued to make the higher payments.
Then an ALJ—Administrative Law Judge—stepped in and, while rejecting Ormet’s position, ruled that Carey’s payments should in fact be less. Not as little as Ormet desired, but somewhere between that amount and the higher rate it had been paying him.
Carey agreed to the decision but asked to recover his attorney fees. The ALJ rejected his petition—which the Benefits Review Board (BRB) upheld—because the recovery would be improper under LHWCA § 28(b) because "no greater compensation was ever received after the informal conference."
The case eventually went to the Fifth Circuit which agreed that LHWCA § 28 does in fact allow a victorious petitioner to ask the employer to pay attorney fees for services that were required to facilitate the successful petition. The court stated that four things must be established to mandate the attorney fees. They are: 1) holding an informal conference, 2) a recommendation in writing from the Board or deputy, 3) that the employer rejected the written recommendation, and 4) that the employee used the services of an attorney in order to receive a greater amount than what the company was willing to pay after the recommendation.
The main dispute focused on the fourth requirement. Ormet maintained that because the ALJ compromise amount was less than what it had voluntarily paid Carey after the conference, § 28(b) did not allow for an award of attorney’s fees. Carey argued that Ormet was playing with semantics and that the code referred to the higher compensation that an employee was entitled.
The court ruled that this and the other three requirements had been upheld: Under § 28(b), Carey was entitled to recovery of his attorney fees which Ormet had denied him.
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