UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-60606
GEORGE HILL,
Claimant-Petitioner,
VERSUS
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS;
U. S. DEPARTMENT OF LABOR; and AVONDALE
SHIPYARDS, INCORPORATED, self-insured employer,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
November 10, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
George Hill appeals the Benefits Review Board’s (“Board”)
affirmance of the Administrative Law Judge’s (“ALJ”) decision that
Hill’s disability benefits claim was untimely under § 913 of the
Longshore Harbor Workers’ Compensation Act (“LHWCA” or “Act”), 33
U.S.C. §§ 901-50. Hill further appeals the reduction in attorneys’
fees and costs. For the reasons stated below, we affirm.
I.
On October 1, 1980, Hill injured his back while working for
Avondale Shipyards, Inc. (“Avondale”). After a week of disability
leave, Hill returned to his sandblasting job until mid-November
1980, when Avondale transferred him to a position in crane hooking.
Hill continued to work in that capacity until he was laid off in
March 1983.
On August 1, 1983, Hill experienced back pain and entered a
hospital emergency room. He was referred to Dr. Robert Fleming,
who evaluated him on August 23, 1983. Fleming informed Hill that
he had two bulging discs and would need surgery.
Hill subsequently petitioned for state workers’ compensation
benefits on February 21, 1984. The Louisiana district court
dismissed Hill’s suit as being statutorily time-barred under the
Louisiana Workers’ Compensation Statute1 because he filed for
benefits over three years after the date of the accident. Hill
appealed the decision, but the Louisiana Fifth Circuit Court of
Appeals affirmed on February 25, 1992, and the Louisiana Supreme
Court denied certiorari and/or review on October 2, 1992. Hill’s
1
Section 23:1209 of the Louisiana Revised Statutes provides in
pertinent part:
[W]hen the injury does not result at the time of, or
develop immediately after the accident, the limitation
shall not take effect until expiration of one year from
the time the injury develops, but in all such cases the
claim for payment shall be forever barred unless the
proceedings have been begun within two years from the
date of the accident.
2
application for reconsideration was further denied on November 6,
1992.
During the pendency of this state claim, Hill filed a claim
for compensation under the LHWCA on June 24, 1992. The ALJ
concluded that Hill became aware, or by the exercise of reasonable
diligence should have been aware, of the relationship between his
back injury and his job with Avondale on August 23, 1983, the date
of Dr. Fleming’s consultation. As a result, that date triggered
the one-year limitations period to file a claim under § 913(a) of
the LHWCA.2 In Hill’s case, the one-year limitations period would
have terminated by August 23, 1984, seven and a half years before
Hill ever filed his LHWCA claim. Section 913(d) provides a tolling
exception to § 913(a), but the ALJ found that Hill’s claim did not
warrant the benefits of that provision.3 Among other things, the
2
Section 913(a) states:
Except as otherwise provided in this section, the
right to compensation for disability or death under this
chapter shall be barred unless a claim therefore is filed
within one year after the injury or death . . . . The
time for filing a claim shall not begin to run until the
employee or beneficiary is aware, or by the exercise of
reasonable diligence should have been aware, of the
relationship between the injury or death and the
employment.
3
Section 913(d) states:
Where recovery is denied to any person, in a suit
brought at law or in admiralty to recover damages in
respect of injury or death, on the ground that such
person was an employee and that the defendant was an
employer within the meaning of this chapter and that such
employer had secured compensation to such employee under
3
ALJ concluded that it was illogical for an untimely state claim to
suspend the statute of limitations for a LHWCA claim that was also
untimely filed. Lastly, the ALJ reduced the amount of attorneys’
fees and costs requested by Hill’s counsel.
The Board affirmed, agreeing with the ALJ that a claim filed
in an untimely manner under a state compensation law cannot toll
the statute of limitations for filing a claim under the LHWCA. In
addition, the Board affirmed the ALJ’s reduction of fees and costs,
but modified it to include a sum for preparing the fee petition.
This appeal ensued.
II.
We evaluate an order of the Board for errors of law and to
ensure that the Board reviewed the ALJ’s findings of fact for
substantial evidence. See Louis Dreyfus Corp. v. Director, OWCP,
125 F.3d 884, 886 (5th Cir. 1997). Substantial evidence is
relevant evidence that is more than a scintilla but less than a
preponderance. See Director, OWCP v. Ingalls Shipbuilding, Inc.,
125 F.3d 303, 305 (5th Cir. 1997). When reviewing the findings of
fact, we may not substitute our judgment of the facts for that of
the ALJ or reweigh or reappraise the evidence. See Louis Dreyfus,
125 F.3d at 886.
this chapter, the limitation of time prescribed in
subsection (a) of this section shall begin to run only
from the date of termination of such suit.
4
Hill first challenges the Board’s and the ALJ’s determination
that an untimely state claim does not toll a LHWCA claim’s statute
of limitations. To bolster his argument, he maintains that the
Board improperly ignored our holding in Ingalls Shipbuilding Div.,
Litton Sys., Inc. v. Hollinhead, 571 F.2d 272 (5th Cir. 1978), and
the Board’s own decision in Calloway v. Zigler Shipyards, Inc., 16
B.R.B.S. 175 (1984).
In Hollinhead, we confronted a Mississippi claimant who
initially filed a state claim for benefits less than seven months
after his injury. He later withdrew the claim and submitted
another one under the LHWCA over thirteen months after the injury.
Although the LHWCA claim was time-barred under § 913(a), the ALJ
found that the claimant’s filing and processing of his state claim
was an adequate excuse under § 913(d) to toll the statute of
limitations. We ultimately affirmed the ALJ’s decision and annexed
relevant portions of the ALJ’s conclusions of law to our opinion.
See Hollinhead, 571 F.2d at 273-75. Unlike the present case,
however, Hollinhead did not address the issue of whether an
untimely state claim is an adequate ground for applying the tolling
provision. Indeed, the precise question presented in Hollinhead
5
was whether a state claim for workers’ compensation qualified as a
suit brought at law or in admiralty to recover damages as required
under § 913(d).4 See Hollinhead, 571 F.2d at 273.
In Calloway, several survivors of a man killed in a barge
explosion initially filed a suit in admiralty, alleging that they
were entitled to damages under the Jones Act. The district court
ultimately dismissed the suit when it found that the employer
(Zigler) was not the owner pro hac vice of the barge and that the
decedent was not a seaman under the Jones Act. While the admiralty
suit was pending and some thirteen months after the employee’s
death, the survivors filed a claim under the LHWCA. Despite that
claim being time-barred under § 913(a), the ALJ ruled that the
survivors’ claim fell within the tolling provision of § 913(d) and
approved portions of the claim. On appeal, the Board rejected the
employer’s argument that § 913(d) did not apply because the
admiralty suit was not dismissed for the reasons explicitly stated
in § 913(d), i.e., because the decedent was an employee and Zigler
was an employer under the Act and because Zigler secured
compensation for the decedent. The Board concluded that the
grounds, upon which recovery is denied in a suit brought at law or
in admiralty, are irrelevant for purposes of § 913(d).
4
Thus, the ALJ’s decision discusses, at length, a district
court decision from Louisiana, Wilson v. Donovan, 218 F. Supp. 944
(E.D. La. 1963), aff’d, 328 F.2d 313 (5th Cir. 1964), which held
that workers’ compensation claims are suits at law for damages for
purposes of § 913(d).
6
Notwithstanding this ruling, we readily distinguish the
propriety of extending the tolling provision to the claimants in
Calloway from the case at hand. Contrary to Hill, the Calloway
plaintiffs’ first attempt to receive benefits, via the admiralty
suit, was timely. To allow an untimely LHWCA claim to piggy-back
on a prior stale claim would be an abuse of § 913(d)’s tolling
provision and would subvert the purpose of statutes of limitation.
Such statutes aim to provide fairness to defendants and to afford
plaintiffs a reasonable period of time within which to present
their claims. See Albertson v. T.J. Stevenson & Co., Inc., 749
F.2d 223, 232 (5th Cir. 1984) (citations omitted). “Fairness to
the defendant requires the prompt vindication of known rights to
ensure that the defendant is not prejudiced as a result of lost
evidence, fading memories, and disappearing witnesses.” Id. Here,
Avondale would be at a substantial disadvantage in defending
against Hill’s claim due to the number of years that have passed
since his accident. And unlike the employers in Hollinhead and
Calloway, who were able to appropriately investigate and contest
their employees’ LHWCA claims due to those employees’ having timely
filed their initial compensation actions; Avondale never had such
an opportunity. Because Hill untimely filed his state compensation
claim, Avondale merely had to concern itself with the prescription
issue in state court, rather than the merits of Hill’s claim.
Accordingly, there was no impetus for Avondale to properly
7
investigate that claim and procure evidence that could later be
used in an LHWCA action.
Based on these facts and the differences between this case and
the decisions in Hollinhead and Calloway, we hold that an untimely
state law claim cannot toll the statute of limitations for filing
a LHWCA claim.
III.
As a corollary to the appeal of the benefits award, Hill also
seeks a modification of the attorneys’ fees and costs awarded in
this case. The ALJ reduced the number of necessary attorneys’ fee
hours by 75% based on Hill’s failure to succeed in the prosecution
of his primary claim for permanent total and partial disability
compensation. Furthermore, the ALJ excluded hours for services
performed prior to the date of the case’s referral to the Office of
Administrative Law Judges, lowered the hourly rate of one of Hill’s
counsel, reduced the time requested for telephone calls lacking in
specificity, denied some blanket charges for work on non-descript
correspondence, and denied charges for unwarranted medical and
legal research. The Board affirmed, but it allowed an additional
sum for preparation of the fee petition.
We note that an ALJ’s reduction of attorneys’ fees and costs
will be affirmed on appeal unless it is arbitrary, capricious, or
an abuse of discretion. See Ledet v. Phillips Petroleum Co., 163
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F.3d 901, 905-06 (5th Cir. 1998). Here, the ALJ conducted an
extensive review of counsel’s requested fees and costs, discussing
in detail the basis for the adjustments. Based on our examination
of the record, we cannot conclude that the ALJ’s analysis was
legally infirm or that he abused his discretion in amending the
requested attorneys’ fees and costs. Consequently, we find no
error in the Board’s affirmance.
IV.
Because an untimely filed state claim cannot toll the statute
of limitations of an LHWCA claim and because the reduction in fees
and costs was not an abuse of discretion, the decision of the
Benefits Review Board is AFFIRMED.
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