United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 29, 2003
Charles R. Fulbruge III
Clerk
No. 02-60470
AVONDALE INDUSTRIES, INC.
Petitioner
VERSUS
RAY ALARIO; JOSEPH HOWARD; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of Orders
of the Benefits Review Board
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
DENNIS, Circuit Judge:
Petitioner Avondale Industries, Inc. (“Avondale”) challenges
the Benefit Review Board’s (“BRB”) award of attorney’s fees to
respondents Ray Alario and Joseph Howard under section 28(a) of the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.
§ 928(a).1 For the following reasons, we deny Avondale’s petition
1
Avondale also challenged the BRB’s decision awarding
attorney’s fees to Eugene Craig. This opinion was originally
issued referencing Craig’s case along with the cases of Alario and
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for review.
I. BACKGROUND
Respondents were Avondale employees. Each filed an LHWCA
claim with Avondale seeking payment for work-related hearing loss.
A. Ray Alario
On July 12, 1999, Alario filed a LS-203 Claim for Compensation
with the deputy commissioner alleging hearing loss caused during
his ten-year employment with Avondale and attached an uninterpreted
audiogram. Alario also provided Avondale with notice of the claim,
although it was not formally served on Avondale by the deputy
commissioner until August 4, 1999. On July 30, 1999, Avondale
filed a LS-207, Notice of Controversion of Right to Compensation,
refusing to pay compensation and contending it did not have
sufficient evidence of the degree of hearing loss. Avondale
alleged that it could not know the degree of Alario’s losses until
it received an audiogram and an audiologist’s report interpreting
the audiogram.
On August 19, 1999, Alario obtained the audiogram and report,
which indicated a 62.8% hearing loss. The day after Avondale
Howard. But the BRB’s decision of these three consolidated cases
actually remanded Craig’s case to the district director for further
proceedings. Thus, there was no final order of the Board with
respect to Craig, and Craig was dismissed from this appeal on
September 18, 2002. The Director of the Office of Workers’
Compensation Programs filed a motion to amend the judgment
requesting that the original opinion be revised to remove the
references to Craig’s case. The Director’s motion is granted, and
this opinion has been revised to reflect that only the cases of
Alario and Howard are before this court.
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received the report on September 13, 1999, it commenced paying
benefits. On September 27, 1999, Avondale had Alario undergo
examination by its own audiologist who set Alario’s hearing loss at
54.1%. When Avondale received this report, it averaged the two
results together and sent Alario a check for the remaining
compensation on October 7, 1999. Alario’s attorney then requested
attorney’s fees under LHWCA §28(a). The district director denied
the request. After Alario filed a motion for reconsideration, a
different director granted the request for attorney’s fees.
Avondale appealed the decision to the BRB.
B. Joseph Howard
On November 19, 1996, Howard filed a LS-203 claim for
compensation for hearing loss, but unlike Alario, he did not
provide an uninterpreted audiogram. Although Howard provided
Avondale with earlier notice, the deputy commissioner served the
claim on Avondale on December 31, 1996. On December 12, 1996,
Avondale filed a LS-207 form controverting the claim until Howard
provided an audiogram and report. On January 8, 1998, Avondale
received a copy of the interpreted audiogram and report from
Howard. The report indicated a 13.8% hearing loss, and Avondale
paid Howard for his hearing loss on January 15, 1998. On August
21, 1999, Howard’s attorney sought reimbursement for attorney’s
fees under LHWCA § 28(a). The district director granted the fee
petition, ordering Avondale to pay attorney’s fees from December
31, 1996 until January 15, 1998. Both parties appealed the
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decision to the BRB.
C. Consolidation
The BRB, considering the cases individually, originally denied
the requests for attorney’s fees. The BRB then granted a motion
for reconsideration en banc and consolidated the cases. On October
5, 2001, sitting en banc, the BRB unanimously granted attorney’s
fees to respondents under LHWCA §28(a). On May 23, 2002, the BRB
denied Avondale’s motion for reconsideration en banc. Avondale
then timely filed a petition for review. The Director of the
Office of Workers’ Compensation Programs filed a brief arguing that
the BRB’s decision awarding respondents attorney’s fees should be
affirmed.
II. ANALYSIS
A. Standard of Review
“This Court conducts a de novo review of the BRB's rulings of
law, owing them no deference because the BRB is not a policymaking
agency.” Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001)
(citations omitted). But this court does afford Skidmore deference
to the Director's interpretations of the LHWCA. Id. Under this
approach, the amount of deference owed the Director’s
interpretation "will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control." United States
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v. Mead Corp., 533 U.S. 218, 228 (2001) (quoting Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944)).
B. The BRB’s Decision
In concluding that Avondale owed attorney’s fees pursuant to
section 28(a), the BRB noted that “neither the Act nor the
regulations require that a claimant submit evidence with his claim
before the requirements of Section 28(a) are triggered.” Craig v.
Avondale, 35 B.R.B.S. 164, 165 (2002). Section 28(a) states:
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 deputy
commissioner, on the ground that there is no
liability for compensation within the provisions of
this chapter 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 deputy
commissioner, Board, or court, as the case may be,
which shall be paid directly by the employer or
carrier to the attorney for the claimant in a lump
sum after the compensation order becomes final.
33 U.S.C. §928(a) (emphasis added). The BRB thus noted that “[t]he
Act is clear that an employer may pay or decline to pay within 30
days after it receives the written notice of ‘a claim’ from the
district director; however, no other ‘evidence’ is required before
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the 30-day period begins to run.”2 The BRB also noted that
Avondale did not pay on or before the thirtieth day after receiving
the LS-203 claim form from the deputy commissioner in any of the
three cases. The BRB therefore held Avondale liable for
respondents’ attorney’s fees under section 28(a).
C. Avondale’s Arguments Challenging the Decision of the BRB
Avondale makes two arguments challenging the BRB’s decision.
First, Avondale argues that a “valid claim” triggering the deadline
outlined in section 28(a) has not been made until the claimant has
provided an audiogram administered by a licensed or certified
audiologist along with an accompanying interpretive report. In
making this argument, Avondale relies on section 8(c)(13)(C) of the
LHWCA which provides:
An audiogram shall be presumptive evidence of the
amount of hearing loss sustained as of the date
thereof, only if (i) such audiogram was
administered by a licensed or certified audiologist
or a physician who is certified in otolaryngology,
(ii) such audiogram, with the report thereon, was
provided to the employee at the time it was
administered, and (iii) no contrary audiogram made
at that time is produced.
This argument is unavailing. Although section 8(c)(13)(C)
states that an audiogram accompanied by an interpretive report is
“presumptive evidence of the amount of hearing loss,” the Act
2
Ray Alario attached an uninterpreted audiogram to his claim
form while Joseph Howard did not. This potential distinction is
not relevant under the BRB’s analysis, Avondale’s arguments, or
this court’s analysis. Thus, the cases may be analyzed together.
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nowhere states that such evidence is required for a claim to be
considered filed for the purposes of section 28(a). This provision
only provides a mechanism for presumptively establishing the amount
of a hearing loss claim if that claim is controverted. It does not
require a claimant to provide this evidence when filing the claim.
Section 28(a) makes it clear that the operative date for
avoiding the potential shifting of attorney’s fees is thirty days
after the employer receives formal notice of the claim; section
28(a) does not mention the term “evidence”, let alone require that
certain evidence be provided when a claim is filed. A claim
requires only a writing disclosing an intention to assert a right
of compensation. Fireman’s Fund Insurance Co. v. Bergeron, 493
F.2d 545, 547 (5th Cir 1974). Form LS-203 clearly meets this
requirement and is in fact the form administratively prescribed for
a claim under the Act.3 Thus, respondents filed valid claims by
filing Form LS-203.
In arguing that presumptive evidence is required before a
hearing loss claim can be considered filed under section 28(a),
Avondale expresses concern that to avoid fee-shifting under the
plain reading of section 28(a), employers will be required to pay
benefits for hearing loss claims before they have the information
required to pay those claims. But the employer is free to schedule
3
Form LS-203, entitled “Employee’s Claim for Compensation”,
specifically states: “I hereby make claim for compensation
benefits, monetary and medical, under the [Act].”
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the claimant for a hearing evaluation by a physician of the
employer’s choosing to determine the amount, if any, of hearing
loss. In fact, here Avondale sent Alario to its own audiologist
after receiving an interpreted audiogram. There is no reason why
Avondale could not have done so immediately upon receiving the
claim itself or formal notice of the claim. This would allow
Avondale to ascertain the proper amount of payment and begin paying
in time to avoid the fee-shifting provision.
Along these same lines, Avondale maintains that hearing loss
is different from all other scheduled losses under the LHWCA.
Avondale states that all of the other scheduled losses can be
objectively determined while hearing loss is more subjective. But
when Congress has chosen to treat hearing loss claims differently
from other claims, it has clearly done so. See 33 U.S.C. §
908(c)(13)(D) (statute of limitations); § 908(c)(13)(E) (method of
calculating impairment). In relation to section 28(a), Congress
has made no indication that hearing loss claims are to be treated
differently from any other claim. In short, Avondale’s argument
that the deadline in section 28(a) is not triggered for hearing
loss claims until the claim is accompanied by presumptive evidence
of the amount of the claim is not supported by the statute.
Avondale’s second argument is that it did not decline to pay
compensation and is therefore not liable for attorney’s fees under
section 28(a). This argument is without merit. In both cases,
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Avondale filed a Form LS-207, Notice of Controversion of Right to
Compensation, before the thirtieth day after receiving formal
notice of the claim from the deputy commissioner. In Weaver v.
Ingalls Shipbuilding, Inc., 282 F.3d 357 (5th Cir 2002), the Court
held that the attorney’s fees may be assessed against the employer
from the date of receiving formal notice of the claim if the
following four elements for fee-shifting are satisfied: (1) formal
notice, (2) employer controversion of the claim, (3) successful
prosecution by the claimant, and (4) use of an attorney to
prosecute the claim. Id. at 359-60.
Here, by arguing it did not decline to pay, Avondale
challenges only whether there was controversion of the claim. But
filing a Form LS-207, Notice of Controversion of Right to
Compensation, clearly satisfies that requirement. As in Weaver,
the fact that Avondale filed these forms before receiving formal
notice of the claims from the deputy director is irrelevant. All
four elements have been met here, and Avondale has not argued that
any portion of the fees awarded by the BRB were incurred prior to
Avondale’s receiving formal notice of the claim from the deputy
commissioner.
III. CONCLUSION
Under a plain reading of section 28(a), respondents were
entitled to attorney’s fees. Therefore, Avondale’s petition for
review is denied.
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PETITION FOR REVIEW DENIED.
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