Chief Judge of Benefits Review Board to Retire

Hon. Nancy S. Dolder, Chief Judge of the Benefits Review Board, has announced her retirement effective April 30, 2014.  Judge Dolder was appointed as one of the five members of the BRB in 1985.  She served as Acting Chairman and Chief Judge from 1993 to 1994, and was appointed Associated Deputy Secretary for Adjudication in 1998, having management and administrative oversight of the three appellate adjudicatory boards in the Department of Labor.  She developed the strategy to reduce case backlogs in those agencies, long known for lengthy delays in deciding cases and issuing decisions.  Then Secretary of Labor Elaine Chao named her Chair and Chief Judge of the BRB in 2001.

Prior to her federal service, Judge Dolder was Chief Counsel for the California State Teachers Retirement System and the TEachers Retirement Fund, one of the largest public investment funds in the country.  She was in private practice in California for several years prior.

Judge Dolder was a strong proponent of legal education, serving for seventeen years on the Advisory Board of Loyola Law School’s Annual Longshore Conference.  She will be missed in the longshore community.  We wish her and her husband, Carl, a long and happy retirement.

BRB Finds Section 28(a) Fee Liability Applies Throughout Claim

On November 26, 2013, the Benefits Review Board issued its decision in Bell v. SSA Terminals, LLC, BRB No. 13-0055, which addressed a claim for attorney fees in a completely controverted claim.  Employer and Carrier had failed to pay benefits to Claimant within thirty days of service of his claim for benefits, but subsequently accepted and paid the claim.  Several disputes existed with respect to counsel’s claim for attorney fees and costs.  The Administrative Law Judge disallowed attorney fees after the Carrier accepted the claim and issued payment for benefits, finding that there was no further dispute upon the tender of benefits.

The BRB reversed the ALJ, stating that once the Employer and Carrier fail to pay benefits within thirty days of service of the claim, triggering the application of Section 28(a), the claim is thereafter governed by Section 28(a) and the Employer and Carrier cannot thereafter stop the entitlement to attorney fees with a subsequent tender of benefits.

This decision has significant implications to Employers and Carriers, in that a Claimant’s attorney can attempt to “run up the bill” even after a claim has been accepted and paid by the Employer and Carrier.  What this claim leaves unanswered is how long fee liability attaches.  Once a claim is resolved by litigation and all amounts due are paid, in the absence of a new dispute, there should be no continuing fee liability for a Claimant’s attorney to “monitor” the ongoing claim. The BRB’s decision does not explain the scope of its decision, so this will be left to further litigation.  It should make Employers and Carriers cautious before completely controverting a claim, as fee liability can be a significant factor in many claims.  In Bell, the liability to Claimant for indemnity benefits appears to have been approximately $80,000, and the attorney fee claim was for over $55,000, almost 70% of the indemnity exposure.

Penalties for Failure to Report Injuries in a Timely Manner

The Longshore and Harbor Workers’ Compensation Act requires employers to notify the Department of Labor about employee injuries causing the loss of one or more shifts of work.  See 33 U.S.C. § 930(a).  The notification must be made within ten days from the date of the injury or death.  If an employer does not comply with this reporting requirement, it could face a  huge penalty:

Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by this section or knowingly or willfully makes a false statement or misrepresentation in any such report shall be subject to a civil penalty not to exceed $10,000 for each such failure, refusal, false statement, or misrepresentation.

See 33 U.S.C. § 930(e).

The seriousness of the Section 30(e) penalty is underscored by a recent press release from the DOL.  An employer was accused of failing to report in a timely manner on the injuries and deaths of 30 employees in Iraq.  After negotiations, the DOL and Employer agreed to settle the penalty issue for $75,000 plus greater penalties for future violations.  The DOL press release makes clear that the DOL is willing and able to charge hefty penalties.  Accordingly, employers should make sure that they fully comply with Section 30’s reporting requirements.

DOL-Joint Bar Association, Inc. Formed

A group of maritime practitioners, both representing injured workers, and employers and insurance carriers, who handle claims before the United States Department of Labor’s Office of Workers’ Compensation Programs, have created the DOL-Joint Bar Association, Inc. These areas of practice include claims arising under the Longshore and Harbor Workers’ Compensation Act and the Defense Base Act. The purposes of the association are to promote and improve the efficient handling of claims and cases administered and adjudicated by the U.S. Department of Labor for all parties involved in those claims, including injured workers, their employers, and insurance carriers; to create an unbiased resource for policy makers and the public on issues of importance related to the representation of individuals and companies involved in claims administered by the U.S. Department of Labor; to defend the honor of the legal profession and promote the highest standards of professional conduct for attorneys practicing before the U.S. Department of Labor, and to provide guidance to the U.S. Department of Labor in administering laws and regulations within its jurisdiction throughout the United States and abroad.

The initial officers of the association are:

David C. Barnett, President
Barnett & Lerner, P.A.
Ft. Lauderdale, FL

Alan G. Brackett, Vice President
Mouledoux, Bland, Legrand & Brackett, LLC
New Orleans, LA

Amie C. Peters, Secretary
Law Office of William D. Hochberg
Edmonds, WA

Roger A. Levy, Treasurer
Laughlin Falbo Levy & Moresi, LLP
San Francisco, CA

If you are interested in the work of the association or becoming a member, please contact us.