It is no secret that attorney fee disputes can lead to significant problems in Longshore and Harbor Workers’ Compensation Act (including Defense Base Act) claims. A federal circuit split regarding the scope and application of Section 28(b) has led to considerable litigation. The defense bar argues in favor of the (in my opinion as a defense attorney) well-reasoned decisions of the Fourth, Fifth and Sixth Circuits, while the claimant bar heralds the wide-open, anything-goes decisions of the Ninth Circuit. In addition to entitlement issues, two Ninth Circuit decisions, van Skike and Christensen, has led to considerable litigation regarding the amount of fees, including the appropriate hourly rate for those fees.
But how often does the Benefits Review Board consider attorney fee issues? As of August 31, 2012, fairly often. While none of the seven published Board decisions address attorneys fees, nearly one-third of all unpublished decisions did deal with fees. The month-by-month breakdown of unpublished decisions addressing attorneys fees is:
January: 8 out of 16 decisions.
February: 3 out of 14 decisions.
March: 2 out of 11 decisions.
April: 3 out of 10 decisions.
May: 0 out of 10 decisions.
June: 2 out of 7 decisions.
July: 4 out of 14 decisions.
August: 5 out of 11 decisions.
Total as of August 31, 2012: 27 out of 93 unpublished Board decisions dealt with attorneys fees.