UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-60697
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AVONDALE INDUSTRIES, INC,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR
AND ROBERT L. COLLINS,
Respondents.
Petition for Review of an Order of the
United States Department of Labor
(95-0496)
August 19, 1997
Before JONES, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Avondale Industries appeals the order of the Department of
Labor, Benefits Review Board, which affirmed an Administrative Law
Judge’s grant of attorney’s fees to claimant Robert L. Collins,
pursuant to the Longshore and Harbor Workers’ Compensation Act, 33
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
U.S.C. § 901 et seq. (“LHWCA”). After an accident, Avondale agreed
to pay Collins disability compensation for his temporary, total
disability. Collins brought this action alleging that his
disability was permanent, not temporary; Avondale countered that
Collins’s injury was temporary, or in the alternative, that he was
not totally disabled and could return to work. The ALJ found that
Collins was indeed totally disabled, but that his disability was
indeed temporary. Therefore Collins maintained the same amount of
benefits from Avondale as before he brought the claim. The ALJ
also awarded Collins attorney’s fees. Avondale appealed the ALJ’s
decision to the Department of Labor’s Benefits Review Board. The
case was affirmed by default, because the Board did not issue an
opinion within one year of the appeal. Upon the implicit
affirmance of the Board, the case immediately became ripe for
review before this court. Donaldson v. Coastal Marine Contracting
Corp. Ins. Co. of N. Am., 116 F.3d 1449, 1450 (11th Cir. 1997); 33
U.S.C. § 921(c).
We review a decision of the Benefits Review Board using “the
same standard the Board applies to review a decision of the ALJ:
whether the decision is supported by substantial evidence and is in
accordance with law.” SGS Control Servs. v. Director, Office of
Worker's Compensation Programs, U.S. Dep't of Labor, 86 F.3d 438,
440 (5th Cir. 1996); however, we do not accord any special
deference to the Board’s interpretation of the LHWCA. Potomac
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Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18, 101
S. Ct. 509, 514 n.18, 66 L. Ed. 2d 446 (1980).
This case presents a straightforward question: is Collins
entitled to attorney’s fees for the successful defense of his
current level of benefits under the LHWCA?
Section 28(b) of LHWCA provides for an award of attorney's
fees when “the employer tenders partial compensation but refuses
to pay the total amount claimed by the claimant, and the claimant
uses the services of an attorney to successfully recover the total
amount claimed.” Savannah Mach. & Shipyard Co. v. Director, 642
F.2d 887, 889 (5th Cir. 1981). Section 28(b) states, in part:
If the employer or carrier pays or tenders payment of
compensation without an award pursuant to section 914(a)
and (b) of this title, and thereafter a controversy
develops over the amount of additional compensation, 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 writing
a disposition of the controversy. . . . If the claimant
is successful in review proceedings 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
reasonable attorney’s fee for claimants counsel . . . .
33 U.S.C. § 928(b). The statute authorizes attorney’s fees for the
cost of attaining the difference between the amount of damages the
employer has agreed to pay and the amount to which the claimant is
rightfully entitled. It does not provide for an award of
attorney’s fees for defending counterclaims or for maintaining the
same level of benefits. In this case, Avondale had agreed to pay
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Collins for temporary, total disability, and the ALJ found that
Collins was entitled to no more. Therefore we find that Collins
was not successful in his claim for additional benefits under the
statute, and the ALJ erred as a matter of law in awarding them.
We REVERSE the ruling of the Benefits Review Board and VACATE
the ALJ’s award of attorney’s fees.
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