Woods v. Director, Office of Workers Compensation Programs

56 F. App'x 812

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2003
• Docket: No. 01-71920; BRB No. 01-0237, OWCP No. 14-120191
• Status: Published

Opinion

MEMORANDUM

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Candy Woods petitions for review of an order of the Benefits Review Board (“BRB”) of the U.S. Department of Labor. The BRB reversed an administrative law judge’s award of attorney’s fees related to claims Woods filed pursuant to the Long-shore and Harbor Workers’ Compensation Act (“LHWCA”). 33 U.S.C. § 901 et seq. We have jurisdiction under 33 U.S.C. § 921(c), and we review de novo the denial of attorney’s fees. Container Stevedoring Co. v. Director, OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). We affirm.

Section 928(b) of the LHWCA authorizes an award of attorney’s fees to the employee “in cases where the existence or extent of liability is controverted and the employee-claimant succeeds in establishing liability or obtaining increased compensation in formal proceedings in which he or she is represented by counsel.” National Steel and Shipbuilding Co. v. United States Dep’t of Labor, OWCP, 606 F.2d 875, 882 (9th Cir.1979). This is not a case like E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341, 1354 (9th Cir.1993), where the claimant “succeeded in the administrative proceedings in establishing ... further liability,” or like Savannah Machine and Shipyard Company v. Director, OWCP, 642 F.2d 887, 890 (5th Cir.1981), where the claimant “was ultimately awarded compensation exceeding that which the Shipyard admitted was due.”

The record contains no evidence that the employer’s advance payment made before Woods filed her claim was conditional or contingent in nature. Because the administrative law judge’s award did not exceed the amount of the advance payment, Woods is not entitled to attorney’s fees under the LHWCA. See Matulic v. Director, OWCP, 154 F.3d 1052, 1060 (9th Cir.1998). The order of the BRB is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.