                                  PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 13-1594


STEVEN LINCOLN,

                  Petitioner,

           v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CERES MARINE TERMINALS, INC.,

                  Respondents.


On Petition for Review of an Order of the Benefits Review Board.
(12-0418)


Argued:   January 28, 2014                     Decided:   March 11, 2014


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Petition denied by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Keenan and Judge Diaz joined.


Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk,
Virginia, for Petitioner.    Lawrence Philip Postol, SEYFARTH
SHAW, LLP, Washington, D.C., for Respondent Ceres Marine
Terminals, Inc.
WILKINSON, Circuit Judge:

     Petitioner Steven Lincoln seeks attorney’s fees from Ceres

Marine Terminals, Inc. (Ceres) for his pursuit of a claim for

disability    benefits        under   the       Longshore    and    Harbor   Workers’

Compensation Act (LHWCA).             Lincoln contends that he is entitled

to attorney’s fees because Ceres did not pay “any compensation”

within the meaning of the fee-shifting mechanism in 33 U.S.C.

§ 928(a)     or,   in   the    alternative,          because   Ceres’s     notice   of

controversion      irrevocably        triggered       the    same   provision.      We

reject his arguments and deny his petition.



                                         I.

                                         A.

     On May 24, 2011, Lincoln filed a claim with the District

Director of the Office of Workers’ Compensation Programs (OWCP)

for benefits under the LHWCA, alleging that he had sustained

binaural hearing loss (hearing loss in both ears) as a result of

his work as a longshoreman in Charleston, South Carolina.                           The

basis   of   Lincoln’s        claim   was       an   April   11,    2011   audiogram.

Lincoln, like many longshoremen, worked for several different

companies over the course of his career, but he alleged that he

was employed by Ceres at the time of his injury.                      Therefore, on

May 26, Ceres responded by filing forms with the OWCP, one of

which was a notice of controversion.

                                            2
       In the notice, Ceres explained that it was controverting

Lincoln’s     claim    because,       while     it    accepted    the   fact        that

“claimant’s     hearing        loss     [was]        noise-induced,”      J.A.        5,

additional information was needed before Ceres could determine

what   it   believed    was    the     correct       disability   payment.           The

information Ceres sought included whether Ceres was the last

employer before Lincoln’s audiogram and the amount of Lincoln’s

average weekly wage (calculated from wage records collected from

the various employers for which Lincoln had worked).                    On June 2,

Lincoln gave Ceres a copy of his April 11 audiogram along with a

paystub from his time working for Ceres.                 Several days later, on

June 6, Ceres submitted subpoenas requesting wage records from

the other companies for which Lincoln had worked and medical

records from the doctor who had conducted Lincoln’s April 11

audiogram.

       The OWCP formally served notice of Lincoln’s claim on Ceres

on June 14.     After receiving the official notice of the claim,

on July 7, Ceres “voluntarily paid” Lincoln $1,256.84, amounting

to   compensation     for     “0.5%    [binaural]       hearing   loss”       and    the

equivalent of one week of permanent partial disability pay under

the maximum compensation rate.                J.A. 25.     Ceres also requested

that Lincoln submit to an independent medical examination.                            In

accordance     with    that     request,       Lincoln     completed      a    second



                                         3
audiogram on July 15 that demonstrated he had sustained a 10%

binaural hearing loss.

       On October 4, after negotiations, the District Director of

the OWCP entered a settlement compensation order agreed to by

both   Lincoln    and      Ceres.    The        settlement      acknowledged     that

Lincoln   allegedly      sustained    a    10%     binaural     hearing   loss    and

awarded benefits to Lincoln totaling $23,879.96 in compensation

and $4,000 in medical benefits.                Ceres did not pay any money to

Lincoln between the July 7 disability payment and the October 4

settlement.

                                          B.

       Lincoln filed a petition with the OWCP on August 18, 2011,

requesting that the Director award him $3,460 in attorney’s fees

under § 928(a) of the LHWCA, which shifts fees from a successful

claimant to the employer when the employer “declines to pay any

compensation     on   or    before   the       thirtieth   day    after   receiving

written notice of a claim.”           33 U.S.C. § 928(a).           Ceres opposed

the petition, and on April 24, 2012, the Director notified both

parties that, because Ceres had paid Lincoln one week’s worth of

disability benefits within 30 days of receiving official notice

of his claim, it was not liable for Lincoln’s attorney’s fees

under § 928(a).         He also found that Ceres was not liable for

attorney’s    fees    under    § 928(b),        the   LHWCA’s    alternative     fee-

shifting provision.

                                           4
       On May 15, 2012, the Director entered a Compensation Order

ruling    Ceres      not    liable     for    Lincoln’s          attorney’s      fees    and

denying the petition.            Lincoln appealed to the Benefits Review

Board (BRB),        which     found    that       the    Director     acted    within    his

discretion     in     denying    Lincoln’s         petition      under    §§ 928(a)      and

(b).   Lincoln thereafter filed this timely petition for review.



                                             II.

       Lincoln maintains that the Director erred in denying his

fee petition under § 928(a) for three independent reasons: (1)

Ceres’s July 7 payment was only a partial payment and thus not

“any     compensation”;         (2)    the        payment       did     not    technically

constitute “compensation” for the purposes of that provision;

and (3) Ceres’s notice of controversion automatically triggered

fee-shifting.         We review the BRB’s decision both for errors of

law and to determine whether it properly found that the District

Director’s      relevant         factual          findings       were     supported       by

substantial evidence.           Sidwell v. Va. Int’l Terminals, Inc., 372

F.3d   238,    241     (4th     Cir.   2004).            Our    review    of    the     BRB’s

interpretation of the LHWCA is de novo.                        Wheeler v. Newport News

Shipbuilding & Dry Dock Co., 637 F.3d 280, 283 (4th Cir. 2011).

                                             A.

       Lincoln first claims that the term “any compensation” in

§ 928(a)      means    all      compensation            due,    and   therefore       cannot

                                              5
include      Ceres’s      payment    of    a       mere    one    week    of    disability

benefits to Lincoln.           To interpret this provision, we begin by

examining the statutory text.                      If the language is plain, “we

apply it according to its terms.”                     Newport News Shipbuilding &

Dry   Dock    Co.    v.    Brown,    376    F.3d      245,       248   (4th    Cir.   2004)

(internal quotation marks omitted).                   When determining whether or

not   statutory      language       is    plain,      we    consider      “the    language

itself, the specific context in which that language is used, and

the broader context of the statute as a whole.”                          Holland v. Big

River     Minerals     Corp.,       181    F.3d      597,       603    (4th    Cir.    1999)

(internal quotation marks omitted).

      The LHWCA establishes a reticulated scheme providing for

fee-shifting in two specific contexts.                      “In all other cases any

claim   for    legal      services       shall      not    be    assessed      against   the

employer      or   carrier.”        33    U.S.C.      § 928(b).          Section      928(a)

covers the first of these situations:

      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 . . . .

33 U.S.C. § 928(a).


                                               6
       In Lincoln’s view, the phrase “any compensation” means “all

compensation,” to the effect that an employer that fails to pay

the entire claim within 30 days is liable for attorney’s fees

under § 928(a).            We do not agree.               The term “any compensation”

is   unambiguous          and    plainly    encompasses        an    employer’s      partial

payment of compensation.                 Thus, the most natural reading of the

provision is that an employer that pays the claimant something

by way of compensation is not liable for attorney’s fees.

       The        surrounding          context       of   § 928(a)     buttresses       this

interpretation.            It states that the employer’s refusal to pay

must     be       “on   the     ground      that      there    is    no   liability     for

compensation within the provisions of this chapter.”                            33 U.S.C.

§ 928(a).          This language is unequivocal, and demonstrates that

an employer’s refusal to pay compensation must be absolute in

order for it to face possible fee liability under § 928(a).

       To     construe          “any     compensation”        in     § 928(a)     as    “all

compensation” would mean that employers must pay the full claim

within       30    days    of     receiving      the      official    notice    to     avoid

potential fee liability.                  But, as Lincoln’s claim demonstrates,

the medical evidence establishing the extent of the claimant’s

injury, and thus the amount of his benefits, is often in flux

and cannot be ascertained with any degree of certainty within 30

days of his claim.                Section 928 provides an employer a safe

harbor: if it admits liability for the claim by paying some

                                                 7
compensation to the claimant for a work-related injury and only

contests the total amount of the benefits, it is sheltered from

fee liability under § 928(a).              Andrepont v. Murphy Exploration &

Prod. Co., 566 F.3d 415, 418-19 (5th Cir. 2009); Day v. James

Marine, Inc., 518 F.3d 411, 419 (6th Cir. 2008).                          Therefore,

fee-shifting under § 928(a) may not occur if the employer agrees

that some amount is due the claimant for a work-related injury

and “tenders any compensation.”                  Andrepont, 566 F.3d at 418.

This safe harbor provision serves to protect “the employers’

interest in having their contingent liabilities identified as

precisely and as early as possible.”                     Brown, 376 F.3d at 250

(internal quotation marks omitted).

       But   the   safe    harbor     is    not       permanently     safe,   because

§ 928(b) provides a mechanism by which the claimant could still

recover attorney’s fees.             Andrepont, 566 F.3d at 419 (finding

that § 928(b) applies when “the employer and claimant agree that

some    compensation      is   due   but       disagree    as    to   what    amount”)

(internal quotation marks omitted); Va. Int’l Terminals, Inc. v.

Edwards, 398 F.3d 313, 317-18 (4th Cir. 2005).                     This alternative

provision is only operative when “the employer initially pays

voluntary    compensation      and    a    subsequent      dispute     arises    about

total    amount    of     compensation         due”    and,     additionally,     four

requirements are satisfied.                Id. at 316.          These requirements

are: “(1) an informal conference, (2) a written recommendation

                                           8
from the deputy or Board, (3) the employer’s refusal to adopt

the written recommendation, and (4) the employee’s procuring of

the services of a lawyer to achieve a greater award than what

the     employer      was    willing       to         pay     after     the     written

recommendation.”          Newport News Shipbuilding & Dry Dock Co. v.

Dir.,      OWCP,    477   F.3d   123,     126    (4th        Cir.   2007)     (internal

quotation marks omitted).

      When taken together, §§ 928(a) and (b) mandate fee-shifting

in certain defined circumstances, but plainly do “not provide

for attorneys’ fee awards in every case in which the claimant is

successful.”         Andrepont, 566 F.3d at 420 (internal quotation

marks   omitted).         This   interpretation         is    consistent      with    the

purposes of the LHWCA, one of which is to lessen the occasions

where attorney’s fees are incurred by encouraging claimants to

resolve     their    disputes    “without       the    necessity      of    relying    on

assistance other than that provided by the Secretary of Labor.”

Kemp v. Newport News Shipbuilding & Dry Dock Co., 805 F.2d 1152,

1153 (4th Cir. 1986) (per curiam).                Therefore, the structure of

§ 928 establishes that, until the claimant has exhausted the

non-adversarial avenues for resolving his claim, he cannot avail

himself of the fee-shifting provisions.                      Day, 518 F.3d at 416-

17.

      In    sum,    § 928(a)’s    plain       language       requires      fee-shifting

only when an employer has paid no compensation within 30 days of

                                          9
receiving the official claim.                 Applying this interpretation to

Lincoln’s case shows that his claim under § 928(a) fails.                             Ceres

voluntarily     paid    Lincoln       one    week’s       compensation     on     July    7,

which   was   within      30    days    of     receiving      his    claim,       “thereby

admitting     to    liability    for     the       injury”    for   the    purposes       of

§ 928(a).          Andrepont,     566       F.3d     at    419.        Ceres    met      the

requirement        of   § 928(a),       moving       the     dispute      to    § 928(b).

Lincoln then had the right to request an informal conference,

see Pittsburgh & Conneaut Dock Co. v. Dir., OWCP, 473 F.3d 253,

264 (6th Cir. 2007), but he did not and instead proceeded to

settlement negotiations that ultimately produced an agreement.

Lincoln was entitled to the services of an attorney but, under

the LHWCA’s fee-shifting scheme, he is not entitled to have that

attorney paid for by Ceres.

                                             B.

     Lincoln’s second contention is that Ceres’s July 7 payment

was not “compensation” in any true sense under § 928(a) because

it was merely an attempt by Ceres to avoid fee liability.                                 To

support   his      argument,     he     relies       on    Green    v.    Ceres    Marine

Terminals, Inc., 43 BRBS 173 (2010), rev’d on other grounds, 656

F.3d 235 (4th Cir. 2011).              In Green, the BRB reviewed a ruling

by an administrative law judge (ALJ) finding that the employer’s

$1 payment to the claimant did not constitute “compensation” for

the purposes of § 928(a).               Id. at 177.           The BRB affirmed and

                                             10
found § 928(a) applicable because the ALJ “rationally found that

employer’s payment of $1 was merely an attempt to avoid fee

liability rather than the payment of compensation for claimant’s

injury.”          Id.

       Lincoln           contends     that      Ceres’s      payment         of      $1,256.84,

corresponding            to   an    injury     of     0.5%   binaural         hearing       loss,

constitutes a “farce to avoid paying attorney’s fees” in the

same       vein    as    in     Green.    Appellant’s           Br.    at    10.      However,

Lincoln’s          case       differs    dramatically           from        Green,     and     we

consequently do not find it applicable here.                                Ceres’s counsel

noted at oral argument that Ceres based its calculation of the

July 7 payment on Lincoln’s alleged disability.                                    That is in

stark contrast to the $1 payment in Green, which was clearly

untethered          to    the      underlying       claim    and      therefore       was     not

“compensation” at all.                See Andrepont, 566 F.3d at 419 (holding

that       an      employer’s        partial         benefits      payment         constituted

“compensation” under § 928(a)); Pittsburgh & Conneaut Dock Co.,

473 F.3d at 263-64 (ruling that an employer’s initial payments

of     temporary          disability     benefits        were      sufficient         to     meet

§ 928(a)’s “compensation” requirement). *


       *
       We likewise find unavailing Lincoln’s reference to Roberts
v. Sea-Land Services, Inc., 132 S. Ct. 1350 (2012). Nowhere in
Roberts did the Supreme Court analyze the meaning of “any
compensation” in § 928(a), the central issue in this case.



                                                11
      We hold that Ceres’s payment of one week’s benefits at the

maximum   compensation     rate,    being     directly       tied    as    it    was   to

Lincoln’s alleged injury, qualifies as “compensation” within the

meaning of § 928(a).

                                         C.

      Lastly, Lincoln maintains that, when Ceres filed a notice

of controversion prior to the July 7 payment, it signaled that

it was controverting his claim and, by doing so, irrevocably

triggered    § 928(a).          Lincoln       cites    to     the     controversion

procedure    in    § 914(d)   of   the    LHWCA,      which       requires      that   an

employer seeking to challenge an employee’s benefits claim file

a   notice   “on    or   before    the    fourteenth        day    after     [it]      has

knowledge of the alleged injury or death.”               33 U.S.C. § 914(d).

      Lincoln did not raise this issue before the BRB, and thus

the BRB did not have the opportunity to consider or rule on it.

But even if we were to address the merits of his claim, we would

find it wanting.         Section 928(a) nowhere incorporates § 914(d)

or its 14 day time limit specifically, or references notices of

controversion      generally.      Rather,      § 928(a)      contains       only      one

explicit trigger: the payment of “any compensation” within 30

days of the employer’s receipt of official notice of the claim.

Ceres met this requirement and consequently was entitled to the

protections afford by § 928(a).



                                         12
                              III.

     The LHWCA is one of those statutes that adjust employer and

employee interests through multiple tradeoffs and compromises.

Far be it from courts to disturb the balance.   The petition for

review is hereby denied.

                                                 PETITION DENIED




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