Brian P. McElreath and Natalie Pike Kornegay Win Defense Ruling on a Claim Filed under the Longshore and Harbor Workers’ Compensation Act
This case involved two claims for binaural hearing loss under the Longshore and Harbor Workers’ Compensation Act. The Employer/Carrier accepted the initial 2012 hearing loss claim as compensable and paid the claim. There no dispute regarding compensability, so no informal conference or written recommendation was issued by the Office of Workers’ Compensation Programs.
The Claimant continued working for the Employer and filed a second hearing loss claim in 2014, which the Employer/Carrier again accepted as compensable. The Employer/Carrier asserted that they were entitled to credit for the full amount paid to the Claimant for the 2012 claim. The Claimant asserted that the Employer/Carrier was entitled to credit for the 2012 settlement amount, less the $1,500 in 928(c) attorney fees paid by the Claimant.
The Administrative Law Judge (ALJ) ruled in favor of the Employer/Carrier finding Sections 928(a) and 928(b) provide for Employer responsibility of attorney fees only when the Employer denies a legitimate claim and the Employee uses services of an attorney to obtain statutory benefits. The ALJ found that here, the Claimant’s counsel was not awarded fees pursuant to Section 928(a) or (b). Instead, the fees fell under Section 928(c). Section 928(c) establishes that when the claim is not disputed, the obligation to pay attorney fees is “on the Claimant and serves as a lien upon the compensation due.” The ALJ found that “in practical terms, a fee paid out by a Claimant under Section 928(c) may be paid out of the money received from a settlement from the Employer; in legal terms, however, it is a separate transaction.” Accordingly, the Court ruled in favor of the Employer/Carrier and found that the Claimant was not entitled to the $1,500 credit, penalties, or interest on that amount.
Brian McElreath is a Partner in the Charleston office of Lueder, Larkin & Hunter. His practice primarily focuses on Longshore, Defense Base Act and War Hazard Compensation Act claims and workers’ compensation and subrogation claims, and he also handles general liability and insurance coverage matters throughout Georgia and South Carolina. Brian can be reached at bmcelreath@luederlaw.com.
Natalie Pike Kornegay is an associate in the Charleston office of Lueder, Larkin & Hunter where her practice focuses on Longshore, Defense Base Act and War Hazard Compensation Act claims and workers’ compensation and subrogation claims. Natalie can be reached at npike@luederlaw.com.