Written Agreement with Recommendation Not Needed to Avoid Fee Liability

In this attorney fee case, Claimant injured his back while bending over to pick up tools. He returned to work two months later in a light-duty position. Eventually, Claimant required a discectomy, which Employer paid for. Employer also paid temporary total disability during the Claimant's period of recovery. When Claimant returned to work, Employer ceased paying temporary total disability benefits, but authorized pain management. One-and-a-half years later, Claimant requested an informal conference to address what appears to be a change of physician issue. The district director recommended a change in both Claimant's treating provider and his pain management provider. Thereafter, Claimant requested referral to the Office of Administrative Law Judges ("OALJ"), but he identified only "medical treatment" as the issue to be presented. After months of litigation, the parties entered into stipulations for medical treatment and the case was remanded to the Office of Workers' Compensation Programs. The Administrative Law Judge ("ALJ") issued an award of attorneys fees against the Employer because it "did not stipulate to the recommendations made by the district director [after the informal conference] until after the case was transferred to the Office of Administrative Law Judges." The primary question on appeal was whether the Employer was liable for Claimant's attorneys' fees pursuant to 33 U.S.C. ยง 928(b). The Fifth Circuit has previously addressed the strict construction applied to Section 28(b) claims. Three criteria are required for the shifting of attorneys' fees: "(1) an informal conference on the disputed issue; (2) a written recommendation on that issue; and (3) the employer's refusal of the recommendation." Here, the Benefits Review Board ("BRB") agreed with the Employer that the ALJ's fee liability finding could not be affirmed. It was incorrect for the ALJ to hold Employer liable for fees because it did not stipulate to the recommendations until the claim had been referred to the OALJ. There is no requirement in Section 28(b) that "an employer or carrier stipulate, or agree in writing, to the recommendations issued following an informal conference." Instead, fees are awarded if the employer or carrier refuses to accept the district director's written recommendation, and then the claimant obtains greater compensation. Since the award of fees was based strictly on the written acceptance of the district director's recommendations, the BRB vacated the fee award. Nonetheless, it did grant a remand so that the ALJ could address the evidence to determine if the employer had refused the recommendation and if the Claimant had obtained greater compensation. Avalos v. U.S. Joiner, L.L.C., No. 10-0633 (Ben. Rev. Bd. 7/27/11).

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