You may have noticed that in this blog we keep recommending that in any compensation claim arising under the Longshore & Harbor Workers Compensation Act (LHWCA), the Defense Base Act (DBA) and other extensions of this law you seek professional legal help, experienced in these areas of law. You may be thinking “I can’t afford an attorney! “ but in this situation, it really is in your best interest to be represented by competent legal professionals experienced in LHWCA and DBA claims.
This process is basically an administrative one, and there are lots of technical compliance requirements, such as filing the right form in the right time frame. You don’t want to lose your rights because you couldn’t figure out the legal mumbo-jumbo. Some cases do ultimately end up in litigation, but only after you have first exhausted all your administrative remedies. If you attempt to go to court immediately, you will waste valuable time and very likely the claim will be thrown out. Experienced LHWCA/ DBA attorneys know every step required in this administrative process, and can help you obtain the best result possible.
Fees for these claims not like other types of cases
Attorney fees for LHWCA/DBA claims are not paid by the traditional methods of which you may be aware. There are special rules for these claims. First, let’s review some traditional attorney payment arrangements.
You may have heard advertisements on television. or radio from personal injury lawyers who state that there is no fee until they win the case. These attorneys are working on a contingency basis, and you contract with them for a percentage of the award. So it is true – if there is no verdict or settlement in that type of case, there is no fee. (But you might be responsible for the costs of the litigation, such as filing fees) The attorneys are motivated to get the best verdict or settlement for the client, because their fee increases proportionately.
Sometimes an attorney will charge a flat fee for something relatively routine, like setting up a corporation or drafting a will. This works for them because they usually know about how long this task will take, and charge the flat fee accordingly. Clients like this type of fee because there is a measure of certainty in the arrangement.
Another type of attorney fee is an hourly fee – the attorney bills you for the number of hours they have worked on your particular matter.
Good News for (some) Claimants!
The good news for claimants is that in some cases under the LHWCA/DBA act the employer’s insurance company is responsible for the claimant’s attorney fees. Keep in mind that this does not apply to every case. This situation only arises where there is a dispute as to the claim and you haven’t been paid. If you have been hurt, filed a claim and are being paid, this does not apply to your case.
“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 within the provisions of this Act, 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 in an amount approved by the (district director), Board, or court ….”
Let’s translate this into humanspeak: If after 30 days of receiving written notice of the claim, the employer or insurance company has not paid you because they don’t think they are liable for the injury, you will probably need an attorney. If you use one, and they are successful, reasonable attorneys’ fees will be approved and charged to the employer or insurance company. The attorney for the claimant submits a request for payment which reports the number of hours worked on the particular claim. This is then multiplied by the hourly fee which is deemed reasonable for the geographical area. This will then be considered by the district director or Board, or court, and a compensation order will be issued.
What happens if the insurance carrier or employer did pay something initially, but then a dispute arises over how much you should be getting? This issue comes up if there is controversy over your average weekly wage, or over the permanency of the injury, or any number of other reasons. In this instance, you probably need an attorney.
Section 28 (b) of the Act makes provision for this, but again, the procedure is complicated. To paraphrase, if there is controversy, the district director will set an informal hearing where the parties can make their cases. A recommendation will then be issued based on that hearing, but if the carrier does not abide by the recommendation, and the claimant uses an attorney who ultimately obtains a greater award than the carrier was willing to pay, those attorney fees must be paid by the carrier or employer.
All other situations
In all other situations where an attorney might be involved in prosecuting a claim under the LHWCA, the claimant (you) is responsible for the fee. This works as a lien on any recovery under the claim, but it is not a percentage fee. The attorney must prepare a petition for fees, which must be reasonable in terms of amount of hours expended on the matter and the hourly rate. The district director or administrative law judge will approve the petition, or adjust it but the amount must be reasonable.
If you have a claim that is being disputed, don’t try to resolve this without help. In most disputed cases, if you are successful, the employer or carrier will be responsible for the attorney’s fees. You need an experienced, dedicated advocate who is knowledgeable in this area of law.