# Opposition Brief — Darby v. Ingalls Shipbuilding, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1065

## Text

No. 99-1029

In The
Supreme Court of the United States

¢
RENE M. DARBY,

Petitioner,
versus

INGALLS SHIPBUILDING, INC., AND DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

¢

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

6
RICHARD P. SALLOUM, WituraM J. Powers, Jr.

Counsel of Record Chief Counsel of Litton
Pau. B. Howeti Ship Systems
FRANKE, RAINEY & SALLOUM, Robert J. ARIATTI, JR.

PLLC Associate Division Counsel
Attorneys at Law INGALLS SHIPBUILDING, INc.
Post Office Drawer 460 Post Office Box 149
2605 Fourteenth Street Pascagoula, MS 39568-0149

Gulfport, MS 39502-0460 228-935-3912

st licindses Of Counsel for Petitioners
Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

3EST AVAILABLE

QUESTIONS PRESENTED

1. Did the Fifth Circuit properly reject a Petition for
Rehearing En Banc from a ruling on a non-dispositive
motion for attorney fees?

2. Did the Fifth Circuit err in denying attorney fees
under § 28(b) of the LHWCA for claimant’s unsuccessful
prosecution of a claim for an injury, even though claimant
subsequently achieved partial success on a separate claim
for a later aggravation of the injury?

3. Did the denial of attorney fees constitute an
impermissible interference with claimant's right to coun-
sel?

il

LIST OF PARTIES

The parties to this matter are the following:

‘.
r B
3.

Rene M. Darby, Petitioner
Blewett W. Thomas, Counsel for Petitioner

Ingalls Shipbuilding, Inc., which is a subsidiary
of Litton Industries, Inc., Respondent

Director of the Office of Workers’ Compensation
Programs, Federal Respondent

TABLE OF CONTENTS

Page
CUEING PERSENTED.... «2.250. 050665.5.0055:-
TAMAR OE COBITIIIS «ooo ose cies evan ee ii
MO BETIEI i i eigihnc co iv
a se eae er ss 1
Ta RR is eI tl RETARD 3
eee CO 8s | 5 ih ae AE ETE 4
STATEMENT OF THE CASE..............005000005 4
PMR 5k icy os eet Siemens ' 7
EE 21

Pia ) } Se a rer ares tree ree Resp. App. 1

iv

TABLE OF AUTHORITIES

Page
Cases CITED:
Alaska Pipeline Service Co. v. Wilderness Society, 421
Oh, AO CAO) «2 25 4 Ruaiias wi agate tna ena 12
Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992)..... 9
Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999)......... 10
Cafeteria & Restaurant Workers Union Local 473,
AFL-CIO v. McElroy, 284 F.2d 173 (D.C. Cir.
| Pere Nee rey ey Pr erie ret en Pre nye 9
Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685 (5th
CM TPE ks eR RKC e oes RR ek eeKd eee eee 1
Ferrer. 0. Hobby, 306: U.S. 1035 (R992) «ok ssc cseek dae 13
Ford Aerospace & Communication Corp. v. Boling,
GOA P25 GOP COG) Cit SOR gcd ccna cee vues 12

General Dynamics Corp. v. Horrigan, 848 F.2d 321
(1st Cir. 1988), cert. denied, 488 U.S. 992 (1988) .... 13

Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed. 2d 40,
Mie SAA. Be CEO 4s 55k cede encees 13, 14, 15, 16

Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir.
NOMAD Ss cca cackssduie ol nn scans Gia abae eee er eaeD 2 &

In re Air Crash Disaster Near New Orleans, LA on
July 9, 1982, 821 F.2d 1147 (5th Cir. 1987)......... 10

Independent Stevedore Co. v. O'Leary, 357 F.2d 812
A | Perr rey ye ra en grrr yy pertt en 14

Krakoff v. United States, 431 F.2d 847 (6th Cir. 1970) .... 10
Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985)...... 9

Vv

TABLE OF AUTHORITIES - Continued
Page

Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,
117 S.Ct. 1953, 138 L.Ed. 2d 327 (1997) ............ 2

Murphy v. Honeywell, Inc., 20 BRBS 68 (1986)..... 13, 20
Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir.

ODD i ive ck kcrsa eae ncn ee 14, 20
The George Hyman Const. Co. v. Brooks, 963 F.2d

4532 (D.C. Cit. 19GE) 6 neo. s'co cn aces etnced nas 33, 15, 17
U.S. Industries/Federal Sheet Metal v. Director,

OWCP, 455 U.S. 608 (1982) ......0cccccccscscceces 15
United States Dept. of Labor v. Triplett, 108 L.Ed. 2d

701, 494 U.S. 715, 110 S.Ct. 1428 (1990) ........ 18, 19
Universal Terminal Stevedoring Corp. v. Parker, 587

F.2d 608 (Grd: Cir. 1978). ....00 0 cece cece sercosssees 12
Walters v. National Assn. of Radiation Survivors, 473

US. 303 C196). ices. ah Re eee 17, 18
Wells v. International Great Lakes Shipping Co., 693

F.2d 663 (7th Cir. 1982)... 5... cc ccccccccccecccces 9

Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)...14, 20

Yeiser v. Deisart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed.
79S CDOS). cocks canes cscackenmite ae 18

STATUTES CITED:

2 SC. 6 SD) 3 a ee 3
$3 Us, 0.00 oc cemsas cs ae eee 4
$3: USC. § S0Me)i ici .uss caret ae 4,5
33 USC. 6 9000)... ....5) eek 4,17

33 U.S.C. § SOB(C) .06. cc cee ee eweet ek eee eeeeecss 15

TABLE OF AUTHORITIES - Continued

Page

33 USC. § SRG) i ei tee ee 3
33 UGA. © DOGG) ic icc an ceven ceases siabaeseetwsaees 5
33. U.S.C. © SEA) aces os de ctsacnviseddinsesatanwenraes 5
33 USC. § SZ M aes as swecncidancsacusuanosiaseeeas 15
33 USC. © SRG ss feeb ons fa eens ees Re A, i7
33 UGA. & SEB oi KAS ioe seee ce eeaas teweeers 11
33 USC. § FRO) os osc cceweuds caus cdasaeeerens passim
33 US. & SONG ais tvniv'es cal cerge eaten 12, 15
33 USA. § GE oc cacvcicctdectdvans cuuuccusateeas 17
Civil Rights Attorney’s Fees Award Act of 1976, 42

USA. § T9GGs cc nc cncuskwensas san ele pee ene enue. 13
Rutes CITED:
FRAP 26 o.oo cncctscnsuengsqcantaae steerer eee 15
PRAP. 36. ..0. There is no logical! distinction between a non dispositive
preliminary motion and a non dispositive post judgment motion
such as we have in the present case.

—

11

on the fees did not resolve the underlying case on the
merits. To the contrary, it was the underlying ruling on
the merits, as supplemented by the decision on remand,
which prompted the filing of the motion for fees. Accord-
ingly, there is no logical basis for Darby’s assertion that
the denial of his attorney fees was a dispositive ruling on
the merits which would entitle him to en banc rehearing.

Finally, Darby has failed to present any compelling
reason, as required by Supreme Court Rule 10, for grant-
ing a writ of certiorari in this case. The rulings of the
Fifth Circuit are consistent with Rule 35 of the Federal
Rules of Appellate Procedure and the corresponding
Local Rules of the Fifth Circuit. Moreover, there is no
conflict in the circuits on this point and the issue is
neither necessary to maintain uniformity of the circuits’
decisions nor is it a question of exceptional importance.

II.

DID THE FIFTH CIRCUIT ERR IN DENYING ATTOR-
NEY FEES UNDER § 28(b) OF THE LHWCA FOR
CLAIMANT’S UNSUCCESSFUL PROSECUTION OF A
CLAIM FOR AN INJURY EVEN THOUGH CLAIMANT
SUBSEQUENTLY ACHIEVED PARTIAL SUCCESS ON
A SEPARATE CLAIM FOR A LATER AGGRAVATION
OF THE INJURY?

The LHWCA provides that an employer is responsi-
ble for the claimant’s attorney’s fees where the claimant
utilizes the services of an attorney who is successful in
the prosecution of his claim. 33 U.S.C. § 928. Section 28(a)
is applicable where the employer has paid no compensa-
tion at all. 33 U.S.C. § 928(a). Section 28(b) is applicable

12

where, as here, the employer has paid some benefits and
the claimant seeks additional benefits. 33 U.S.C. § 928(b).
In order to be successful under § 28(b), the claimant's
attorney must be successful in obtaining greater compen-
sation than the amount previously paid by the employer.
33 U.S.C. § 928(b); Universal Terminal and Stevedoring Corp.
v. Parker, 587 F.2d 608 (3rd Cir. 1978). Additionally, the
Act states as follows:

If the claimant is successful in review proceed-
ings 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 reason-
able attorney’s fee for claimant’s counsel in
accord with the above provisions. In all other
cases any claim for legal services shall not be
assessed against the employer or carrier.

33 U.S.C. § 928(b).

A claimant’s attorney is entitled to separately peti-
tion for an employer-paid fee for work performed before
the Benefits Review Board and the court of appeals when
his appeal has been successful in obtaining greater bene-
fits. 33 U.S.C. § 928(c); 20 C.F.R. § 702.132 (1985); Ford
Aerospace & Communication Corp. v. Boling, 684 F.2d 640
(9th Cir. 1982). The intent behind the award of attorney
fees in the LHWCA is to assess attorney fee liability on an
employer only when the claimant is ultimately successful
on the claim. Alaska Pipeline Service Co. v. Wilderness Soci-
ety, 421 U.S. 240, 262 (1975); Hole v. Miami Shipyards Corp.,
640 F.2d 769 (5th Cir. 1981). A determination of whether
the claim is ultimately successful may require the resolu-
tion of an issue on remand before the determination as to

13

success can be made. Hole, 640 F.2d at 774; Murphy v.
Honeywell, Inc., 20 BRBS 68 (1986).

Upon conclusion of the remand proceedings, Darby’s
attorney in the case at bar submitted a fee petition to the
Fifth Circuit asserting that since the 1987 injury was
“irrevocably intertwined” with the 1992 injury, then he is
entitled to recover for time spent on his unsuccessful
appeals in connection with the 1987 injury. He cites to
this Court’s decision in Hensley v. Eckerhart, 461 U.S. 424,
103 S.Ct. 1933, 76 L.Ed. 2d 40 (1983), regarding the test for
awarding attorney fees under the Civil Rights Attorney’s
Fees Award Act of 1976, 42 U.S.C. § 1988. The Hensley test
has also been utilized in cases involving attorney fees
under the LHWCA. See The George Hyman Const. Co. v.
Brooks, 963 F.2d 1532 (D.C. Cir. 1992); General Dynamics
Corp. v. Horrigan, 848 F.2d 321 (1st Cir. 1988), cert. denied,
488 U.S. 992 (1988). The test under the Hexsley case for
determining a reasonable fee is (1) did the claimant's
unsuccessful claims relate to the claims on which he was
successful; and (2) did the claimant succeed at a level that
makes the hours reasonably expended a satisfactory basis
for a fee award. 461 U.S. at 434.

However, the Hensley test is only applied after the
claimant has prevailed. 461 U.S. at 433. See also Farrar v.
Hobby, 506 U.S. 103 (1992). The LHWCA reflects that to
prevail, the attorney must be successful in obtaining
additional compensation. 33 U.S.C. § 928(b). In the case at
bar, Darby was unsuccessful in his appeals to the Benefits

14

Review Board and the Fifth Circuit in connection with the
1987 injury. Id., A-42 - A-44.¢

Darby did sustain a second injury on May 8, 1992,
which resulted in increased work limitations. Although
the 1992 injury was an aggravation of the 1987 injury, the
aggravation of a prior injury constitutes a new injury
making the entire resulting disability compensable.
Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986);
Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968); Indepen-
dent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966).
In other words, but for the 1992 injury, Darby would not
have been awarded any additional compensation. More-
over, the mere fact that the 1992 injury incorporated the
first injury does not mean that the claim based on the
1987 injury alone incorporated the second injury.

Even if the Hensley test is applicable, it is contrary to
Darby’s position. Hensley notes that “where the plaintiff
failed to prevail on a claim that is distinct in all re ots
from his successful claims, the hours spent on the unsuc-
cessful claim should be excluded in considering the
amount of a reasonable fee.” 461 U.S. at 440. In distin-
guishing an unrelated claim from a related claim, this
Court suggested that a related claim will involve a com-
mon core of facts, be based upon related legal theories,
counsel’s time will be devoted to the litigation as a
whole, and it will be difficult to divide the fees on a

6 It is only the fees before the Benefits Review Board and
the Fifth Circuit which are at issue here. Ingalls paid Darby’s
attorney’s fees for time incurred before the administrative law
judge. EX 31, p.2.

15

claim-by-claim basis. 461 U.S. at 435. None of the forego-
ing is true in this case. First, the facts presented to the
Benefits Review Board and the Fifth Circuit did not
include any facts concerning the 1992 injury, which
occurred after the record was closed with respect to the
1987 injury claim. Moreover, Ingalls was not required to
defend any claim before the Benefits Review Board and
the Fifth Circuit other than the claim which was made for
the 1987 injury. U.S. Industries/Federal Sheet Metal v. Direc-
tor, OWCP, 455 U.S. 608, 614 (1982). Second, the legal
issues presented in the claim for permanent total disabil-
ity for the 1987 injury are readily distinguishable from
those presented in pursuing compensation for the 1992
injury, which was based upon the aggravation of a pre-
existing condition. Third, the time of Darby’s attorney
before the Board and the Fifth Circuit was not devoted to
the litigation as a whole. Instead, it was limited to pursu-
ing an unsuccessful appeal based on that record in con-
nection with the 1987 injury alone. 33 U.S.C. § 928(c); 33
U.S.C. § 921(b)(3); FRAP 16. Fourth, the time expended by
opposing counsel on the claim for the 1987 injury is easily
separable from the time expended on the 1992 claim,
since all of the time before the Benefits Review Board and
the Fifth Circuit is limited to the record made solely in
connection with the 1987 injury.

In The George Hyman Construction Co. v. Brooks, 963
F.2d 1532 (D.C. Cir. 1992), the D.C. Circuit ruled that an
unsuccessful claim for permanent total disability pur-
suant to § 908(a) is distinct from a claim for a scheduled
award pursuant to § 908(c). 963 F.2d at 1540. In denying
fees incurred on the unsuccessful issue, the D.C. Circuit
noted that the claims were based on different factual and

16

legal theories despite the fact that they arose out of the
same accidental injury. 963 F.2d at 1540. Accordingly,
Darby’s unsuccessful pursuit of a claim for a different
injury based upon different factual and legal theories
would surely qualify as a distinct and unrelated claim.

In Hensley this Court noted that “the congressional
intent to limit awards to prevailing parties requires that
these unrelated claims be treated as if they had been
raised in separate lawsuits, and therefore no fee may be
awarded for services on the unsuccessful claim.” 461 U.S.
at 435. The foregoing is the exact situation in the case at
bar. The claim for the 1987 injury, which was filed on
November 8, 1988, was a totally separate claim from the
claim filed nearly eight years later for the 1992 injury. See
EX 9, EX 39.

Darby failed to prevail on his appeal with respect to
the 1987 claim, which was separate and distinct from his
1992 claim. The mere fact that the injuries were interre-
lated, since the second injury was an aggravation of the
first, does not change the fact that the claims were sepa-
rate and distinct. In fact, the administrative law judge
specifically noted in both his Decision and Order Award-
ing Compensation Benefits and his Order Denying Claim-
ant’s Motion for Reconsideration that the claims were
separate and distinct, and this finding was never
appealed. Pet. App. A-15, A-40, A-58, A-64.

17

III.

DID THE DENIAL OF ATTORNEY FEES CONSTITUTE
AN IMPERMISSIBLE INTERFERENCE WITH CLAIM-
ANT’S RIGHT TO COUNSEL?

The LHWCA provides that a claimant has a right to
an attorney. 33 U.S.C. § 928; 20 C.F.R. § 702.131 (1985).
Further, the Act provides that if the claimant is successful
in obtaining greater benefits than those previously paid,
then the claimant is entitled to have his attorney fees paid
by the employer. 33 U.S.C. § 928(b); 20 C.F.R. § 702.134(b)
(1985); The George Hyman Const. Co. v. Brooks, 963 F.2d
1532, 1536 (D.C. Cir. 1992). If the claimant is successful in
review proceedings, he may separately apply to the Bene-
fits Review Board or to the Court for the award of an
attorney fee for the time incurred before them. 33 U.S.C.
§ 928(b). In all other cases, the claim for attorney fees is
not assessed against the employer or carrier. Id.; 20 C.F.R.
§ 702.133 (1985). The LHWCA also incorporates, however,
a provision that prohibits an attorney from receiving a fee
unless approved by the appropriate agency or court. 33
U.S.C. § 928(e). Basically, Darby argues that the denial of
attorney fees for the separate pursuit of unsuccessful
claims which are subsequently consolidated with claims
upon which the claimant is partially successful and
receives a fee, will drive competent counsel away. Ini-
tially, Darby’s petition overlooks the heavy presumption
of constitutionality which is accorded the Congress in
enacting the LHWCA. Walters v. National Assn. of Radia-
tion Survivors, 473 U.S. 305, 319 (1985). One challenging
the law must make an extraordinary showing of proba-
bility of loss of competent counsel under the present

18

system. Id. at 326. Darby has failed to make such a
showing.

In United States Dept. of Labor v. Triplett, 494 U.S. 715,
110 S.Ct. 1428, 108 L.Ed. 2d 701 (1990), this Court held
that a similar challenge to the attorney fee award provi-
sions of the LHWCA failed to rebut the heavy presump-
tion of constitutionality. Specifically, in Triplett, an
attorney challenged the constitutionality of the attorney
fee provision of the Lorgshore Act which is applicable to
black lung claimants, since it deprived claimants of legal
assistance in the prosecution of their claims. In upholding
the constitutionality of the attorney fee provision of the
LHWCA, the Court noted as follows:

The government pursues an obvious and legiti-
mate interest through the current regime. The
regulation of attorneys fees payable by claim-
ants themselves is designed to protect claimants
from their “improvident contracts, in the inter-
est not only of themselves and their families but
of their public.” Yeiser v. Deisart, 267 U.S. 540,
541, 45 S.Ct. 399, 400, 69 L.Ed. 775 (1925)
(upholding similar state limitation). When fees
are payable by persons other than the claimants,
as Congress has provided, regulation is
designed to assure fairness to the employer, car-
rier, or trust fund, and to protect those sources
from a depletion that would leave other claim-
ants without a source of compensation.

494 U.S. at 722.

Moreover, this Court noted in Triplett that the claim-
ant has a substantial burden to prove that’limitations on
the award of attorney fees make attorneys unavailable to

19

claimants. Specifically, the Court required that the claim-
ant prove that (1) claimants could not obtain representa-
tion and (2) that the inability to obtain representation was
due to the attorney fee provision of the Act. 494 U.S. at
722. In Triplett, the Court held that the testimony of three
lawyers that the current system discourages attorneys
' from practicing under the Act was held insufficient to
meet the burden of proof. 494 U.S. at 723-24. Without
question, the naked allegations in Darby’s petition are
insufficient to challenge the constitutionality of the attor-
ney fee provisions of the LHWCA.

Darby has not had any problem in obtaining counsel.
In fact, he obtained the same attorney who pursued his
1987 claim to pursue his 1992 claim. His attorney was
duly awarded a fee by the administrative law judge for
his partial success on the 1992 claim and that fee is not in
issue. He was also awarded a fee for his pursuit of the
1987 claim before the administrative law judge and that
fee was paid by Ingalls. It is only the fee for his unsuc-
cessful appeals to the Benefits Review Board and the Fifth
Circuit with respect to the 1987 accident which is at issue
here.

Darby asserts that the denial of fees for an “irrevoca-
bly intertwined” claim would deprive similarly situated
claimants of the right to counsel. However, the claim for
the 1987 injury was separate and distinct from the claim
for the 1992 injury. His partial success in the 1992 claim,
for which his attorney has already been awarded attorney
fees, did not rely upon his unsuccessful appeals in con-
nection with the 1987 claim. To the contrary, a claim
based upon an aggravation compensates the entire result-
ing disability without regard to the compensability of the

20

underlying condition. Wheatley v. Adler, 407 F.2d 307 (D.C.
Cir. 1968). Additionally, where there are two work related
injuries, as here, and the second injury aggravates the
first, then the second injury becomes the compensable
injury. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir.
1986). Moreover, the incorrect assumption of Darby’s
attorney that he had an ethical obligation to pursue the
unsuccessful appeals with respect to the 1987 accident
before he could pursue the successful claim for the 1992
accident does not justify the award of attorney fees. Mur-
phy v. Honeywell, Inc., 20 BRBS 68, 71 (1986).

Attorney fees are payable for assisting claimants in
recovering additional compensation, not for filing frivo-
lous appeals. Darby’s attorney has already been awarded
all the attorney fees to which he is entitled. His petition is
without any legal or factual basis.

*

21

CONCLUSION

For the foregoing reasons, the Petition for Writ of
Certiorari should be denied.

Respectfully submitted,

RICHARD P. SALLOUM

(Counsel of Record)

Paut B. Howe.

FRANKE, RAINEY & SALLOUM, PLLC
Attorneys at Law

2605 Fourteenth Street

Post Office Box 460

Gulfport, MS 39502

228-868-7070

Counsel for Petitioners

WILLiAM J. Powers, JR.

Chief Counsel of Litton Ship
Systems

Rosert J. ARIATTI, JR.

Associate Division Counsel

Ingalls Shipbuilding, Inc.

Post Office Box 149

Pascagoula, MS 39568-0149

228-935-3912

Of Counsel for Petitioners

Dated: January 14, 2000

Resp. App. 1

RESPONDENT’S APPENDIX 1
United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-589-6514
CLERK 600 CAMP STREET
NEW ORLEANS, LA 70130

August 2, 1999

Mr. Blewett William Thomas
7115 Dubies Drive
San Antonio, TX 78216

No. 96-60029 Darby v. Ingalls Shipbuilding USDC
No. BRB #92-1547

Dear Mr. Thomas:

We are in receipt of your petition for en banc determina-
tion in regard to the above referenced case. In light of
there be no provision in the rules from the filing of an en
banc petition from a non-dispositive order, your petition
is being returned to you unfiled.

Sincerely,

CHARLES R. FULBRUGE III,
Clerk

By: /s/ L. Adams
L. Adams, Deputy Clerk

cc: Mr. Paul B. Howell
Mr. Mark Ambrose Reinhalter

Resp. App. 2

RESPONDENT’S APPENDIX 2

(b) If the employer or carrier pays or tenders pay-
ment of the compensation without an award pursuant to
section 14(a) and (b) of this Act, and thereafter a contro-
versy develops over the amount of additional compensa-
tion, 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 writ-
ing a disposition of the controversy. If the employer or
carrier refuse to accept such written recommendation,
within fourteen days after its receipt by them, they shall
pay or tender to the employee in writing the additional
compensation, if any, to which they believe the employee
is entitled. If the employee refuses to accept such pay-
ment or tender of compensation, and thereafter utilizes
the services of an attorney at law, and if the compensa-
tion thereafter awarded is greater than the amount paid
or tendered by the employer or carrier, a reasonable
attorney’s fee based solely upon the difference between
the amount awarded and the amount tendered or paid
shall be awarded in addition to the amount of compensa-
tion. The foregoing sentence shall not apply if the contro-
versy relates to degree or length of disability, and if the
employer or carrier offers to submit the case for evalua-
tion by physicians employed or selected by the Secretary,
as authorized in Section 7(e) and offers to tender an
amount of compensation based upon the degree of length
of disability found by the independent medical report at
such time as an evaluation of disability can be made. If
the claimant is successful in review proceedings before
the Board or court in any such case an award may be

Ratna hapa ci VCRs <=

Resp. App. 3

made in favor of the claimant and against the employer
or carrier for a reasonable attorney’s fee for claimant’s
counsel in accord with the above provisions. In all other
cases any claim for legal services shall not be assessed
against the employer or carrier.

33 U.S.C. § 928(b)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0585%3A3. Public record. Not legal advice.