Avondale Indust Inc v. DOWCP

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 5, 1997
• Docket: 96-60697
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 96-60697 ____________

AVONDALE INDUSTRIES, INC,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR AND ROBERT L. COLLINS,

Respondents.

Petition for Review of an Order of the United States Department of Labor (95-0496)

August 19, 1997 Before JONES, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Avondale Industries appeals the order of the Department of

Labor, Benefits Review Board, which affirmed an Administrative Law

Judge’s grant of attorney’s fees to claimant Robert L. Collins,

pursuant to the Longshore and Harbor Workers’ Compensation Act, 33

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. U.S.C. § 901 et seq. (“LHWCA”). After an accident, Avondale agreed

to pay Collins disability compensation for his temporary, total

disability. Collins brought this action alleging that his

disability was permanent, not temporary; Avondale countered that

Collins’s injury was temporary, or in the alternative, that he was

not totally disabled and could return to work. The ALJ found that

Collins was indeed totally disabled, but that his disability was

indeed temporary. Therefore Collins maintained the same amount of

benefits from Avondale as before he brought the claim. The ALJ

also awarded Collins attorney’s fees. Avondale appealed the ALJ’s

decision to the Department of Labor’s Benefits Review Board. The

case was affirmed by default, because the Board did not issue an

opinion within one year of the appeal. Upon the implicit

affirmance of the Board, the case immediately became ripe for

review before this court. Donaldson v. Coastal Marine Contracting

Corp. Ins. Co. of N. Am., 116 F.3d 1449, 1450 (11th Cir. 1997); 33

U.S.C. § 921(c).

We review a decision of the Benefits Review Board using “the

same standard the Board applies to review a decision of the ALJ:

whether the decision is supported by substantial evidence and is in

accordance with law.” SGS Control Servs. v. Director, Office of

Worker's Compensation Programs, U.S. Dep't of Labor, 86 F.3d 438,

440 (5th Cir. 1996); however, we do not accord any special

deference to the Board’s interpretation of the LHWCA. Potomac

-2- Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18, 101

S. Ct. 509, 514 n.18, 66 L. Ed. 2d 446 (1980).

This case presents a straightforward question: is Collins

entitled to attorney’s fees for the successful defense of his

current level of benefits under the LHWCA?

Section 28(b) of LHWCA provides for an award of attorney's

fees when “the employer tenders partial compensation but refuses

to pay the total amount claimed by the claimant, and the claimant

uses the services of an attorney to successfully recover the total

amount claimed.” Savannah Mach. & Shipyard Co. v. Director, 642

F.2d 887, 889 (5th Cir. 1981). Section 28(b) states, in part:

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 deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy. . . . If the claimant is successful in review proceedings before the Board or court in any such case an award may be made in favor of the claimant and against the employer or carrier for a reasonable attorney’s fee for claimants counsel . . . .

33 U.S.C. § 928(b). The statute authorizes attorney’s fees for the

cost of attaining the difference between the amount of damages the

employer has agreed to pay and the amount to which the claimant is

rightfully entitled. It does not provide for an award of

attorney’s fees for defending counterclaims or for maintaining the

same level of benefits. In this case, Avondale had agreed to pay

-3- Collins for temporary, total disability, and the ALJ found that

Collins was entitled to no more. Therefore we find that Collins

was not successful in his claim for additional benefits under the

statute, and the ALJ erred as a matter of law in awarding them.

We REVERSE the ruling of the Benefits Review Board and VACATE

the ALJ’s award of attorney’s fees.

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