In Lincoln v. Ceres Marine Terminals, Inc., a new unpublished BRB decision, Claimant sought an attorney fee award against employer pursuant to Section 28(a).  Section 28(b) fees were not available because no informal conference ever occurred.

Section 28(a) states, in pertinent part:

If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the [district director], on the ground that there is no liability for compensation . . . and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney’s fee against the employer or carrier . . . .

See 33 U.S.C. § 928(a) (emphasis added).

Claimant filed a claim for binaural hearing loss.  Within thirty days, Employer paid Claimant for a 0.5% binaural hearing loss in the amount of $1,256.84.  Employer made no other payments and did not authorize medical treatment until an Order was issued approving a Section 8(i) settlement that covered both indemnity and medical benefits.  Section 28(a) attorney’s fees were denied  after the district director found that the $1,256.94 payment was “actual compensation.”

This “actual compensation” language hearkens back to Green v. Ceres Marine Terminals, Inc., 43 BRBS 173 (2010), rev’d on other grounds, 656 F.3d 235, 45 BRBS 67 (4th Cir. 2011).  In the BRB’s original Green decision, the employer had paid only $1 within Section 28(a)’s time limit.  Ultimately, it was determined that the $1 payment in Green “was merely an attempt to avoid fee liability rather than the payment of compensation for claimant’s injury.”

The same was not true in Lincoln.  The district director acted within his discretion in finding that the $1,256.84 paid to Claimant constituted “actual compensation.”  Because the payment of ”any compensation” within 30 days precludes Section 28(a) fee shifting, fees were not owed.

Lincoln v. Ceres Marine Terminals, Inc., BRB No. 12-0418 (2013) (unpublished).

Opinion: When comparing Green and Lincoln, it is clear that the intent behind the payment is the key, and not whether a $1 or $1,256.84 payment is a per se compensation payment.  Instead, the question is whether the employer and carrier made the payment with the intent to compensate the injured worker for their injury.  Further, I’m not ready to say that a $1 payment is precluded from being considered “actual compensation” because the Supreme Court specifically approved of the use of “nominal compensation.”  See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121 (1997) (“We therefore hold that a worker is entitled to nominal compensation when his work-related injury has not diminished his present wage-earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions”).

While working as a repairman of large shipping containers, Claimant injured his shoulder, arm and back in an on-the-job car accident.  Employer paid temporary total disability while Claimant sought medical treatment.  Eventually, Claimant underwent a functional capacity evaluation that demonstrated Claimant could perform “medium” work.  Employer then put Claimant through a three-month work hardening program to help him get back to work.  Claimant visited his doctor, who prescribed updated work restrictions of “[n]o repetitive bending or twisting with [his] back, no lifting more than 55 lbs., no carrying more than 40 lbs., no overhead lifting more than 30 lbs., no lifting more than 30 lbs. frequently, and no sitting more than 45 minutes without changing positions.”  Thereafter, Claimant began working at his family’s seafood restaurant earning $400 per week, much less than the $1,219 per week he earned as a repairman.

One year later, after Claimant reached maximum medical improvement, he underwent a second functional capacity evaluation.  Although Claimant could not return to work as a container repairman, he could perform “light” work.  This caused Claimant doctor to testify in a deposition that Claimant’s work restrictions should be reduced so that Claimant lifted and carried weight up to 25 pounds, but 20 pounds overhead, and that claimant should not lift more than 10 to 20 pounds constantly.  The remaining restrictions remained the same.

Employer obtained three labor market surveys that demonstrated the availability of alternative employment for Claimant.  According to Employer’s vocational evaluator, who supplemented his second and third study at the trial after receiving Claimant’s most recent work restrictions, Claimant could engage in gainful employment in a number of restaurants, earning $28,000 to $40,000 per year.  Plus Claimant could engage in security guard work.

The administrative law judge (“ALJ”) determined that Employer had not demonstrated the availability of suitable alternative employment.  The ALJ rejected Employer’s labor market survey for lack of detail and determined that Claimant could only earn $20,800 annually, while employed at his family restaurant.  The ALJ credited Claimant’s testimony about his work duties at the restaurant, and Claimant’s brother’s testimony that Claimant “has up days and down days.”  As for the specific jobs identified by Employer’s vocational expert, the ALJ determined that: (1) the forklift job required medium to heavy work; (2) the security officer job did not take Claimant’s pain regimen into account; and (3) the light duty restaurant jobs did not have sufficient description of job duties.  The Benefits Review Board affirmed, and Employer appealed to the United States Court of Appeals for the Fourth Circuit, which reversed.

The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides compensation “for the economic harm suffered as a result of the decreased ability to work.”   The LHWCA contains a burden shifting framework.  A claimant must establish a prima facie case by demonstrating an inability to return to prior employment because of a work injury.  The employer must then demonstrate the availability of suitable alternative employment which the claimant can perform.   If successful, the employer’s liability for disability benefits is either reduced or eliminated unless the claimant shows “that he diligently but unsuccessfully sought appropriate employment.”

The Fourth Circuit found that the ALJ made erroneous findings of fact that were unsupported by substantial evidence in the record.  For instance, the ALJ determined that Claimant could not stand for long periods, needed frequent rest breaks, and had a regimen of medication.  But that is not what Claimant testified.  While Claimant testified that he needed to take breaks, Claimant’s doctor never mentioned standing restrictions or rest break requirements.  Plus, the most recent functional capacity evaluation said that Claimant could stand frequently and walk constantly.  As for the medication regimen, there was no evidence of record indicating that Claimant’s regimen hampered his ability to find work, or that the jobs identified by the vocational expert required drug testing or prevented employment to an applicant taking prescription painkillers.

Moreover, the ALJ improperly faulted employer for failing to consider Claimant’s standing, rest break requirement, and medication-related restrictions, thus penalizing employer “for failing to address restrictions of which it was unaware [and] imposing too heavy a responsibility under the LHWCA’s burden-shifting scheme.”  To satisfy its burden without providing suitable alternative employment itself, an employer must: (1) present “evidence that a range of jobs exist which is reasonably available and which the disabled employee is realistically able to secure and perform;” (2) demonstrate that there is “a reasonably likelihood, given the claimant’s age, education, and vocational background that he would be hired if he diligently sought the jobs” presented; and (3) identify more than a single job opening in the relevant labor market.  In doing so, an employer can rely on “standard occupational descriptions” identified by the Dictionary of Occupational Titles to define particular job duties.

An employer does not have to: (1) “contact prospective employers to inform them of the qualifications and limitations of the claimant and to determine if [the new employer] would in fact consider hiring the candidate for their position;” or (2) “contact the prospective employers . . . to obtain their specific job requirements before determining whether the claimant would be qualified for suck work.”

Here, Employer relied on the physical restrictions of which it was aware to present a range of suitable alternative employment.  Employer could not be faulted for being surprised at trial with new, previously unmentioned restrictions.   Accordingly, the ALJ required too much.  A LHWCA employer is allowed to rely “on the restrictions it knew of” to prepare a labor market survey, provided that the employer updates the survey if it becomes aware that the claimant has revised work restrictions.

But what about the situation, like in this case, where a claimant accepts work from an employer who pays less than the jobs identified on a labor market survey?  That is a situation that will be addressed on remand: “Since [Employer] demonstrated the availability of suitable alternative employment which [Claimant] is capable of performing, the burden should have shifted to [Claimant] to prove he could not obtain more lucrative employment despite his diligent effort.”  In other words, just because a claimant is working does not mean that the claimant’s post-injury wage earning inquiry is done.  A claimant must still prove that he was unable to obtain the more lucrative jobs identified by the employer even if he actually obtained post-injury employment.

Marine Repair Servs., Inc. v. Fifer, No. 12-1566 (4th Cir. May 2, 2013) (unpublished)

Opinion: I hope that Employer moves to publish this opinion.  It is helpful to the industry.  The Fourth Circuit clearly set out the requirements of employers and claimants for satisfying their burden shifting duties.