concurring in part and dissenting in part:
I respectfully dissent from parts I and IV of the majority opinion, and concur in the remainder.
Although it is a close question, I believe for three reasons that it is neither reasonable nor fair to calculate Mr. Matulic’s compensation according to 38 U.S.C. § 910(a). First, when “computation [under § 910(a) or (b)] results in excessive compensation of the claimant in light of the injured worker’s actual employment record,” § 910(c) should be employed. Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336, 1342 (9th Cir.1982), vacated, 462 U.S. 1101, 103 S.Ct. 2446, 77 L.Ed.2d 1329 (1983) aff'd in relevant part on remand, 713 F.2d 462, 463 (9th Cir.1983). Mr. Matulie worked 82% of the time in the year preceding his injury, but will be compensated for his injury as if he had worked 100% of the time. Unlike the majority, I believe “this disparity is large enough to justify application of subsection (c) in order to avoid excessive overcompensation.” Duncanson-Harrelson, 686 F.2d at 1343. Second, by holding that § 910(a) presumptively applies when an injured longshoreman works more than 75% of the time in the year preceding an injury, the majority has consciously created an inter-Cireuit conflict. Strand v. Hansen Seaway Service, 614 F.2d 572, 574 (7th Cir.1980) (§ 910(c) proper where petitioner worked 84% of preceding year). Although Duncanson-Harrelson does endorse the sort of bright line rule the majority announces, Duncanson-Hamlson itself avoids deciding the issue and nothing in our case law requires us to adopt 75% as the minimum percentage. Duncanson-Harrelson, 686 F.2d at 1343. Third, under old but still *1062valid Ninth Circuit authority § 910(a)’s 260-day work year does not accurately reflect Petitioner’s earning capacity in the year preceding his injury, because he was not ready and willing to work a full year during that period. Marshall v. Andrew F. Mahony Co., 56 F.2d 74, 78 (9th Cir.1932) (“[Ejarning capacity means fitness and readiness and willingness to work_” (quoting court below)); see Palacios v. Campbell Industries, 633 F.2d 840, 843 (9th Cir.1980) (compensation awards should be based on earning capacity). In my view, Mr. Matulie’s explanation for his shortened work year in 1989, that he was moving and working on his house, weighs against granting him a windfall at Jones Stevedoring’s expense. I am reluctant to resolve this close question in Mr. Matulic’s favor where his reduced earnings are not the result of illness, layoff, or other factors beyond his control. See Walker v. Washington Metropolitan Area Transit Authority, 793 F.2d 319, 322 (D.C.Cir.1986) (listing such “involuntary” circumstances where use of § 910(e) has been upheld).
As for attorney’s fees, the plain language of 33 U.S.C. § 928(b), as well as the statute’s legislative history, led this Court to announce the following test: “the employer will not be responsible for' the payment of attorneys’ fees, unless the employer rejects the written recommendation of the claims examiner following the informal hearing....” Todd Shipyards v. Director, OWCP, 950 F.2d 607, 611 (9th Cir.1991). Since Mr. Matulie does not dispute that the claims examiner’s June 24, 1991 letter proposing a settlement is the legal equivalent of an informal conference, I see no principled distinction between the present case and Todd Shipyards. 20 C.F.R. § 702.311 (disputes may be handled informally by conference, telephone, or written correspondence). As in Todd Shipyards, a dispute arose over permanent disability benefits and OWCP proposed a settlement, which the employer immediately accepted without condition but the employee did not.
The majority correctly observes that the scope of Mr. Matulic’s disagreement with the claims examiner’s recommendation was greater than that of the worker in Todd Shipyards, but this is a distinction without a difference, as a review of the fee-shifting statute reveals. Section 928(b) permits an award of attorney’s fees only when the employer “refuse[s] to accept” the OWCP’s recommendation; neither the worker’s rejection of the recommendation nor the nature of any remaining disputes are relevant. 33 U.S.C. § 928(b). If the employer so “refuse[s] to accept [the OWCP’s] written recommendation,” then it must immediately pay or tender the amount “to which [it] believe[s] the employee is entitled.” Id. “[I]f the compensation thereafter awarded is greater than the amount paid or tendered by the employer,” only then the employer is liable for an attorney’s fee “based solely upon the difference between the amount awarded and the amount tendered or paid.” Id. In short, as this Court concluded in Todd Shipyards, “[s]ection 928(b) authorizes a payment of attorney’s fees only if the employer refuses to pay the amount of compensation recommended by the claims examiner following an informal conference.” Todd Shipyards, 950 F.2d at 610. Since Jones Stevedoring accepted the OWCP’s written recommendation, the threshold condition to an award of attorney’s fees has not been met, and Petitioner’s disagreement with the claims examiner’s recommendation is immaterial. Accordingly, although Mr. Matulic’s final award is greater than that proposed by the claims examiner, “[s]ection 928(b) is inapplicable because [Jones Stevedoring] did not refuse to pay” him compensation. Todd Shipyards, 950 F.2d at 610. Consequently, I would affirm the denial of attorney’s fees.