When civilian contractors get injured overseas in the course of their duties for one of the employers handling government contracts, they are supposed to put their employer on written notice within 30 days, ask employer to authorize treatment by their choice of physician, and file form LS-203, which is written claim for compensation under Defense Base Act (DBA) – an extension of the federal workers’ compensation program that covers longshoremen and harbor workers, the Longshore and Harbor Workers’ Compensation Act 33 U.S.C. §§ 901–950. Basically, DBA covers non-military personnel employed at United States defense bases overseas. These employees may be US citizens or foreign nationals.
It’s important for an employee to send notice of the injury/illness to the employer since under the Defense Base Act, employer must file form LS-202 (Employer’s First Report of Injury or Occupational Illness) and send it over to the Office of Workers’ Compensation Programs (OWCP).
Form LS-203 (Employee’s Claim for Compensation) is supposed to be filed within one year after the date of injury or last payment of compensation, whichever is later. (Things get little bit more complicated when the employee claims the injury years after he completed his contract.)
Once the claim has been submitted, employer/insurance carrier may authorize employee’s medical treatment and disability compensation or file LS-207 (Notice of Controversion of Right to Compensation). Form LS-207 is used by the employer/carrier to challenge the right to compensation.
That said, once the claim has been filed, employer/carrier will either accept it and start paying benefits to the employee or dispute it and employee or his representative may argue their case before district director and administrative judge.
What if employee retains an attorney to represent him before the board, who is responsible for attorney’s fees?
Generally speaking, if the employee files the claim and insurance carrier accepts his claim and no disputes arise regarding average weekly wage, disability rating and etc., but employee for some reason retains an attorney to represent him in his claim, fees will be the employee’s responsibility and attorney may file a lien against employee’s award[1]. These fees are not calculated in percentage, and attorney fees must be reasonable and submitted in form of petition, which is approved by the deputy commissioner, Board, or court, as the case may be[2].
However, if there is a dispute between employer/carrier and employee, and his attorney successfully prosecutes the case and obtains an award for the employee, insurance carrier may be responsible for attorney’s fees[3]. It is important to note that an attorney cannot be paid unless his reasonable fees are approved by the deputy commissioner, Board, or court, wherever the case may land.
Furthermore, Section 28 of the Act, 33 U.S.C. §928, provides for the award of an attorney’s fee to claimant’s attorney. Only fees approved under Section 28 may be received by claimant’s attorney. Any person receiving any unapproved consideration for work performed as a representative of claimant in a claim under the Act is subject to criminal prosecution. 33 U.S.C. §928(e).
Disclaimer: The information provided in this article is for informational purposes only and should not be considered legal advice or a substitute for competent legal counsel. The Law Office of Damir Junicic expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this article. Transmission of information to us does not create an attorney-client relationship between you and the Law Office Damir Junicic. The content of this article contains general information and may not reflect current legal developments, verdicts or settlements.
Footnotes:
[1] Section 28 authorizes the assessment of an attorney’s fee against the employer under specific circumstances, 33 U.S.C. §928(a), (b), and against the claimant as a lien on his compensation, 33 U.S.C. §928(c).
[2] The regulations for attorney’s fee awards for work before the deputy commission or administrative law judge are at 20 C.F.R. §§702.132-702.135. Fees for work before the Board are governed by 20 C.F.R. §802.203. Fees for work at each level of the proceedings must be approved by the body before which the work was performed. Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 594 F.2d 986, 9 BRBS 1089 (4th Cir. 1979). Under Sections 702.132 and 802.203, in order to receive a fee claimant’s attorney must file an application describing the necessary work performed and specifying the number of hours and hourly rate of the individual performing the work. The regulations further state that no contract regarding the amount of the fee shall be recognized. See Moyer v. Director, OWCP, 124 F.3d 1378, 31 BRBS 134(CRT) (10th Cir. 1997). This framework thus does not permit the award of a fee based solely on a percentage of claimant’s benefits. Enright v. St. Louis Ship, 13 BRBS 573 (1981); Ashton v. Dieners, Inc., 9 BRBS 539 (1978); Lebel v. Bath Iron Works Corp., 3 BRBS 216 (1976), aff’d, 544 F.2d 1112, 5 BRBS 90 (1st Cir. 1976).
[3] Claimant’s attorney is entitled to a fee only upon successful prosecution of a claim. Clophus v. Amoco Production Co., 21 BRBS 261 (1988); Wilhelm v. Seattle Stevedore Co., 15 BRBS 432 (1983); Director, OWCP v. Hemingway Transport, Inc., 1 BRBS 73 (1974). Thus, claimant must establish entitlement to some form of relief in order for his attorney to receive any fee. Employer cannot be held liable unless the requirements of Section 28(a) or (b) are met. See, e.g. R.S. [Simons] v. Virginia Int’l Terminals, 42 BRBS 11 (2008) (holding statutory requirements are not met and rejecting claimant’s contention that employer should be held liable for his attorney’s fees pursuant to FRCP 11(c)).
