Brownstein Rask LLP is now using Lexis, rather than Westlaw, for online research.  Beginning with this quarterly caselaw review, case citations will use the Lexis format and, for Benefits Review Board decisions, the BRB number and date of decision.  Unfortunately, the BRB has not updated its website with published decisions after February 5, 2025 or unpublished decisions after August 25, 2025.

In this quarter there were two decisions that could make it more difficult to obtain attorney fees.  In National Steel & Shipbuilding Co. v. Director, OWCP, the ALJ approved a §8(i) agreement for two claims, but the agreement did not apportion the fee between the two claims.  The 9^th Circuit remanded to determine the extent to which each claim was successful and apportion accordingly.  When a party seeks fees following prosecution of multiple legal claims, the Supreme Court’s decision in Hensley v. Eckerhart requires the adjudicator to consider the extent of plaintiff’s success on each claim when determining what constitutes a reasonable fee award for counsel’s services.  If a party achieves only partial or limited success, the adjudicator should reduce the award to account for the limited success.  No fee should be awarded for services on an unsuccessful claim unless the claims are so intertwined that the lawsuit cannot be viewed as a series of discrete claims. 

 In Rucobo v National Steel & Shipbuilding Co., the claimant sought PTD for 2014 and alternatively 2015 injuries but eventually agreed to settle disability for $100,000.00 with open medicals.  The ALJ found the majority and most central of claimant’s claims were successful and did not reduce the fee due to lack of success.  The Board remanded to consider if the fee should be reduced due to lack of success, inasmuch as the potential value of PTD far exceeded the amount of the settlement.

 Also in Rucobo v National Steel & Shipbuilding Co., employer was paying TTD for a 2014 injury when it received a claim for a 2015 injury.  In response, employer advised claimant there would be a delay in providing any benefits for new claims until it could determine if these injuries arose out of and in the course of his employment.  Claimant sought a fee per §28(a) because nothing was paid within thirty days of receipt of the 2015 claim.  Employer argued it did not deny benefits because it was already paying claimant total disability for the 2014 injury, and claimant could not receive more than total disability when disabled simultaneously by two injuries.  The Board remanded to consider employer’s argument its payment of TTD for the 2014 injury qualified as payment of some compensation for purposes of the 2015 claim.  

Brownstein Rask has an appeal pending in the BRB since June 2024, Stephenson v. Metropolitan Stevedore Company (BRB 2024-0166),  The employer paid compensation equal to 1% of the claimed PPD award for hearing loss but stated the claim was accepted as “potentially noise induced *** pending confirmation of rating, wages, and relationship to employment.”  Claimant, in this appeal, contends payment of compensation without evidence the employer accepted liability for the injury, is insufficient to give employer the “safe harbor” or §28(b).  Otherwise, the employer could just as easily pay 1% and announce the claim is not accepted, but payment was made to avoid paying an attorney fee.  We are now 18 months from submission of the last brief and look forward to the Board’s decision in 2026.

The 11^th Circuit, in Sun Terminals, Inc. v. Polo, held an ALJ lacked authority to “grant” a claimant’s request to change physicians, but the ALJ had authority to resolve, as a matter of fact, who the employer’s physician actually is. 

In a published decision, McRae v. SSA Terminals, LLC, the Board held the sole remedy for fraud in securing a §8(i) agreement is §31(a) unless there is a timely appeal from entry of the order approving the agreement.  Federal Rules of Civil Procedure do not apply because §31(a) unequivocally addresses situations involving fraudulently filed claims.  Any false statement or representation knowingly and willfully made for the purpose of obtaining benefits under the Act is a felony.  Complaints are investigated by the US Attorney for the district in which the injury occurred.   

Pedroso v. Continental Maritime of San Diego, Inc,, of interest only to defense attorneys, held employer was not entitled to §8(f) relief in a permanent total disability claim because it failed to prove the work injury alone did not cause claimant’s ultimate disability, irrespective of the preexisting disability.  (If claimant had been partially disabled, it would have been sufficient to prove the level of disability due to the combination of the injury with the preexisting disability was greater than the disability from the injury alone.)  Curiously, this case is available on Westlaw but could not be found on Lexis.