     Case: 12-60262       Document: 00512126547         Page: 1     Date Filed: 01/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 28, 2013
                                     No. 12-60262
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WARREN SIMMONS,

                                                  Petitioner

v.

DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS,
US DEPARTMENT OF LABOR;
NORTHROP GRUMMAN SHIP SYSTEMS INCORPORATED,

                                                  Respondents


                        Petition for Review of an Order of the
                                Benefits Review Board
                                   BRB No. 11-424


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Warren Simmons (“Simmons”) appeals an order of the Benefit
Review Board’s (“Board” or “BRB”) denying employer-paid attorney’s fees under
the Longshore and Harbor Workers’ Compensation Act (“LWHCA”), 33 U.S.C.
901 et seq. (2010). We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-60262

      Simmons injured his ankles at work on October 7, 2004. His employer,
Respondent Northrop Grumman Ship Systems, Inc. (“Northrop”), paid
temporary total disability (“TTD”) benefits from October 8, 2004 until June 13,
2005. On July 27, 2005, Northrop received notice that Simmons filed a claim for
additional compensation. Although Northrop controverted the claim, it paid
Simmons TTD benefits for July 21 and 22, 2005, and reinstated TTD benefits on
August 2, 2005.      In 2006, while receiving TTD benefits, Simmons sought
additional compensation for a back injury he also sustained in the 2004 work
incident. Northrop disputed that injury but nevertheless continued to pay TTD
benefits through May 10, 2007.
      At an informal conference before the District Director in July 2009,
Simmons asserted that he should be allowed to be treated by a different
physician, Dr. Rosenfeld, and that Northrop owed him additional compensation
for his back injury. The District Director disagreed, finding that Simmons was
not authorized to switch physicians and Simmons needed to submit medical
records from his treating physician, Dr. Juneau, to determine whether he was
entitled to additional compensation.
      Upon Simmons’s request, the case was transferred to the Office of
Administrative Law Judges for a formal hearing in August 2009. The ALJ found
that (1) Simmons’s back injury was caused by the 2004 work-incident; and
(2) Northrop had constructively denied Simmons treatment because Dr. Juneau
stated that he could do nothing further to help alleviate Simmons’s back pain.
Accordingly, the ALJ concluded Simmons did not need authorization to see
Dr. Rosenfeld and awarded Simmons TTD compensation and medical benefits
for the back injury.
      Following the ALJ’s award of benefits,      Simmons’s counsel filed fee
applications with both the district director and the ALJ, asserting that he was
entitled to employer-paid attorney’s fees pursuant to § 28(a) and § 28(b) of the
LHWCA. 33 U.S.C. §§ 928(a)-(b). The District Director found that because

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Northrop had voluntarily paid some benefits and did not reject any of his
recommendations, Simmons’s counsel was not entitled to employer-paid
attorney’s fees under either provision.1 In contrast, the ALJ held Northrop
liable for attorney’s fees pursuant to § 28(a) because Simmons prevailed on the
issues whether he was authorized to switch physicians and receive benefits for
his back injury. The BRB, concluding that the requirements of neither § 28(a)
nor § 28(b) had been met, affirmed the District Director’s denial of attorney’s
fees and reversed the ALJ’s award of attorney’s fees, Simmons timely petitioned
this court for review.
       This court conducts a de novo review of the BRB’s rulings of law.
Andrepont v. Murphy Exploration & Prod. Co., 566 F.3d 415, 417 (5th Cir. 2009).
An ALJ’s findings of fact are upheld when they are supported by substantial
evidence and are consistent with the law. Gulf Best Elec., Inc. v. Methe, 396 F.3d
601, 603 (5th Cir. 2004). This court affords Skidmore deference to the director’s
interpretations of the LHWCA, examining “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.” See id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140,
65 S. Ct. 161, 164 (1944)).
       Section 28(a) only applies when “the employer . . . declines to pay any
compensation” within thirty days after receiving notice of a claim for
compensation. 33 U.S.C. § 928(a) (emphasis added). When Northrop received
notice of Simmons’s initial claim on July 27, 2005 it compensated Simmons
within thirty days by reinstating TTD benefits on August 2, 2005.                    That
Simmons subsequently sought additional benefits for his back injury does not
change the fact that Northrop timely paid some compensation for the claim. See



      1
        The district director subsequently denied Simmons’s motions for reconsideration and
ordered Simmons to pay his attorney pursuant to 33 U.S.C. § 928(c).

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Andrepont, 556 F.3d at 418–19; Newport News Shipping & Dry Dock Co. v.
Director, 474 F.3d 109, 113 (4th Cir. 2006). The BRB correctly concluded that
§ 28(a) is inapplicable.
      Section 28(b) may apply to this case in which Northrop paid some
compensation “and thereafter a controversy developed over the amount of
additional compensation, if any, to which the employee [Simmons] may be
entitled” for his back injury. 33 U.S.C. § 928(b). Under § 28(b), attorney’s fees
may only be awarded against the employer when the following statutory events
have occurred: (1) an informal conference; (2) a written recommendation from
the deputy or Board; (3) the employer’s refusal to adopt the written
recommendation; and (4) the employee’s procurement of a lawyer’s services to
achieve a greater award than the employer was willing to pay after the written
recommendation. Carey v. Ormet Primary Aluminum Corp., 627 F.3d 979,
982–83 (5th Cir. 2010).
      Here, the first two requirements of § 28(b) were met because an informal
conference was held July 2009; and the District Director issued a written
recommendation as detailed above. However, the third requirement was not
fulfilled because Northrop did not refuse to adopt the those recommendations.
It is irrelevant that Northrop subsequently disagreed with the ALJ’s contrary
findings because § 28(b) mandates that the employer must refuse the written
recommendation of the deputy or Board. See Andrepont, 566 F.3d at 421.
Further, nothing in the LHWCA or any case law supports Simmons’ s assertion
that there is an “equitable exception” that allows fee-shifting even when § 28(b)’s
requirements are not fully met. Therefore, the BRB properly reversed the ALJ
and affirmed the District Director’s denial of attorney’s fees payable by Northrop
pursuant to §§ 28(a) and (b).
      Simmons also asserts that this is an action by a seaman “for wages or
salvage or the enforcement of laws enacted for [his] health or safety” so it can be


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                                No. 12-60262


prosecuted without prepaying fees or costs or furnishing security therefor. See
28 U.S.C. § 1916. Simmons, however, is a longshoreman bringing a claim under
the LHWCA, which specifically excludes coverage for seamen.          33 U.S.C.
§ 902(3)(G); McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 (1991).
Simmons is not entitled to any benefits granted to seamen under § 1916.
      For the foregoing reasons, we AFFIRM the decision of the Board denying
employer-paid attorney’s fees to Simmons.




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