Case: 20-60357 Document: 00516140267 Page: 1 Date Filed: 12/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 21, 2021
No. 20-60357
Lyle W. Cayce
Clerk
Ramon Rivera,
Petitioner,
versus
Director, Office of Workers’ Compensation Programs, United States
Department of Labor; Ameri-Force; Signal Mutual Indemnity
Association, Limited,
Respondents.
Petition for Review of the Decision and Order of the Benefits Review Board
United States Department of Labor
Office of Workers’ Compensation Programs
BRB Case No. 17-0438
District Director Case No. 07-306441
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Ramon Rivera was injured on the job while employed by Ameri-Force.
He successfully obtained a workers’ compensation award after filing a claim
with the Office of Workers’ Compensation Programs of the U.S. Department
of Labor. The question before us is whether he is also entitled to attorney’s
fees under 33 U.S.C. § 928(b). Because Rivera is entitled to attorney’s fees
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under the plain text of that provision, we REVERSE the decision of the
Benefits Review Board and REMAND for further proceedings.
I.
Rivera brought a hearing-loss claim with the Department of Labor
against Ameri-Force and its insurer. In December of 2015, Ameri-Force
responded by paying Rivera for two weeks of disability benefits based on an
average weekly wage of $212.17. But Ameri-Force disputed that it was the
“last responsible employer” and thus liable under the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. §§ 901–950. On July 28 of the
following year, the claims examiner assigned to the dispute issued a
memorandum noting that Rivera sought benefits based on 35.31% binaural
hearing loss and an average weekly wage of $1,027.37. The claims examiner
recommended that Rivera had made a prima facie case against Ameri-Force
and that Ameri-Force is the last responsible maritime employer. The claims
examiner asked the parties to consider that recommendation and reach an
agreement on the disputed issues.
On August 5, 2016, Ameri-Force notified the claims examiner and
Rivera by letter that it accepted its designation as the responsible employer.
But Ameri-Force explained that negotiations concerning Rivera’s average
weekly wage were ongoing and that it would submit further documentation
on that issue if the parties could not agree. It also explained that it organized
an additional medical evaluation with Dr. Seidemann, a doctor of its
choosing, to take place on August 23, 2016. Ameri-Force expressed that it
“would appreciate the opportunity to present the doctor’s findings before
any final recommendations are made concerning the binaural hearing loss.”
Two weeks later, Ameri-Force sent another letter to the claims examiner
arguing that Rivera’s average weekly wage should not include his per diem
payments and that the value should be $274.11.
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Shortly thereafter, on August 24, 2016, a newly assigned claims
examiner issued a recommendation. The recommendation stated that
Ameri-Force was Rivera’s last responsible employer, Ameri-Force was
responsible for costs associated with Rivera’s 35.31% binaural hearing loss
and his hearing aids, and that Rivera’s average weekly wage should include
per diem payments.
Immediately upon receiving the recommendation letter on August 29,
2016, Ameri-Force sent a letter to the new claims examiner asking him to
“reconsider and withhold” the recommendation until Ameri-Force provided
the findings from the second medical evaluation on Rivera’s hearing loss and
the claims examiner was able to review it. Three days later, Ameri-Force sent
the claims examiner another letter. Enclosed were the results of Dr.
Seidemann’s evaluation, which concluded Rivera had suffered a 21% binaural
hearing loss. The letter also stated:
Based on our conversation, it is my understanding that[,] after
considering the IME report from Dr. Seidemann and the wage
information which we have provided, you will be issuing
supplemental recommendations and that the parties will have
14 days from the issuance of these recommendations in which
to advise whether they are accepted or rejected. If I am in
error, please advise.
On September 7, the claims examiner indeed issued a “Supplemental
Informal Conference Recommendation.” The document purported to
supplement both the July 28 and August 24 recommendations. In it, the
claims examiner recommended that Rivera suffered a 28.16% hearing loss, a
rate which represented the average of the competing rates proposed by the
parties. The document also explained that under that rate, the average
weekly wage would be $439.55 and the total benefits award due would be
$24,755.46. Finally, it advised that any party who rejected the
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recommendation should initiate the process for a formal hearing within 21
days. Neither party did so.
But on September 12 and 13, Ameri-Force offered to settle the
dispute. It told Rivera that it agreed to pay $25,151.05 in disability indemnity
benefits, use an average weekly wage of $659.33, and provide $5,000 in
medical benefits if Rivera did not seek attorney’s fees from Ameri-Force. If
Rivera rejected the offer, Ameri-Force explained, it would pay benefits in
accordance with the September 7 recommendation. Rivera rejected the offer
a couple days later, and on September 16 Ameri-Force paid $24,755.46, the
amount set forth in the September 7 recommendation. Two weeks later, the
claims examiner issued another supplemental recommendation concluding
that Ameri-Force in fact owed $25,151.05, which was based on a 28.61%
hearing loss, not a 28.16% hearing loss; Ameri-Force paid the difference
shortly thereafter.
In November of 2016, Rivera filed a petition seeking an award of
$8,153 in attorney’s fees under 33 U.S.C. § 928 for the work performed on
this matter. Ameri-Force objected. The district director concluded that
Rivera was entitled to the fees under subsection (b) because Ameri-Force did
not timely pay Rivera in accordance with the August 24 recommendation and
Rivera ultimately obtained a greater award than Ameri-Force was initially
willing to pay after that recommendation. Ameri-Force appealed to the
BRB. On February 28, 2018, the BRB reversed, holding that the August 24
recommendation was rendered moot by the September 7 recommendation.
In the BRB’s view, because Ameri-Force timely paid Rivera in accordance
with the September 7 recommendation, the criteria for attorney’s fees under
§ 928(b) were not satisfied.
Rivera moved for reconsideration, and on October 24, 2018, the BRB
granted the request only to remand for the district director to consider
whether Rivera was entitled to fees under § 928(a). It rejected his request as
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to its determination under § 928(b). Ameri-Force challenged the BRB’s
decision as to subsection (a), and on February 28, 2020 the BRB agreed and
reversed the prior decision by en banc vote. But it granted a remand to the
district director to consider the availability of attorney’s fees under § 928(c).
Rivera petitioned this court for review of the BRB’s reversal of the district
director’s award of fees under § 928(b). So, the sole issue before us is
whether that provision’s criteria for attorney’s fees are satisfied.
II.
As a preliminary matter, Ameri-Force asks us to dismiss as untimely
Rivera’s petition for review of the BRB’s § 928(b) determination. We
decline to do so.
Under 33 U.S.C. § 921(c), any petition for review of a final order of
the BRB must be filed with the appropriate Court of Appeals within sixty
days of the BRB’s order. Rivera filed his petition on April 28, 2020. He
claims that it was timely because it was filed within sixty days of the BRB’s
February 28, 2020 en banc order. Ameri-Force contends that the petition was
untimely because it was not filed within sixty days of the BRB’s October 24,
2018 order, which was when the BRB first made its determination regarding
fees under § 928(b).
We consider the timeliness of the petition in relation to the
February 28, 2020 en banc order, not the October 24, 2018 order. Rivera’s
initial request for a fee award sought fees and costs under both subsection (a)
and (b) of § 928. In its October 24, 2018 order, the BRB remanded for the
director to consider the availability of fees under subsection (a). But in doing
so it remanded the case. Thus, although the BRB had already resolved the
subsection (b) portion of the fee request in the October 24, 2018 order, it did
not issue a final resolution of the fee request, which included the subsection
(a) request, until February 28, 2020. The sixty-day timeline to file a petition
under § 921(c) began then. See Newpark Shipbuilding & Repair, Inc. v.
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Roundtree, 723 F.2d 399, 400–01 (5th Cir. 1984) (explaining that a “final”
decision for purposes of § 921(c) is one that “ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment”(quoting
Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 373–74 (1981)). We
therefore hold that Rivera’s petition was timely filed.
III.
Turning to the substance of Rivera’s claim, the only issue before us is
whether Rivera is entitled to an award of attorney’s fees under § 928(b). We
hold that he is.
“This Court conducts a de novo review of the BRB’s rulings of law,
owing them no deference because the BRB is not a policymaking agency.”
Carey v. Ormet Primary Aluminum Corp., 627 F.3d 979, 982 (5th Cir. 2010)
(quoting Pool Co. v. Cooper,
274 F.3d 173, 177 (5th Cir. 2001)). As for fact
issues, we “only determine whether evidence exists to support the
[director’s] findings.” Pool Co.,
274 F.3d at 178. We therefore consider
“whether the BRB properly concluded that the ALJ’s factual findings were
[or were not] supported by substantial evidence on the record as a whole.”
James J. Flanagan Stevedores, Inc. v. Gallagher,
219 F.3d 426, 429 (5th Cir.
2000).
An employee may collect attorney’s fees under § 928(b) if: (1) an
informal conference is held; (2) the BRB or a deputy commissioner issues a
written recommendation; (3) the employer refuses to adopt the
recommendation within fourteen days; and (4) the employee procures a
lawyer’s services to achieve an award greater than that which the employer
was willing to pay after the written recommendation was issued. 33 U.S.C.
§ 928(b); see also Carey,
627 F.3d at 982. All those criteria were met here.
The claims examiner held an informal conference with Rivera and
Ameri-Force on July 26, 2016. On August 24, 2016, the replacement claims
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examiner issued a written recommendation declaring that Ameri-Force was
responsible for the costs associated with Rivera’s 35.31% hearing loss and
Rivera’s hearing aids, and that average weekly wage should include Rivera’s
per diem payments.1 Ameri-Force did not accept that recommendation.2
Instead, it asked the claims examiner to reconsider its recommendation,
asserting that benefits should be calculated based on 21% hearing loss, not
35.31%. In the end, Ameri-Force paid benefits corresponding to a 28.61%
hearing loss. Simply put, a conference was held, a recommendation was
issued, Ameri-Force refused to adopt the recommendation, and, with
counsel’s assistance, Rivera ultimately obtained an award greater than that
which Ameri-Force was initially willing to pay after the recommendation.
Under § 928(b), then, Rivera is entitled to attorney’s fees.
The BRB erred when it concluded that the August 24, 2016
recommendation did not apply for the purposes of attorney’s fees under
§ 928(b) because the claims examiner’s September 7, 2016 recommendation
rendered it moot. Ameri-Force asserts that requiring it to accept the August
24 recommendation after the September 7 recommendation supposedly
rendered it moot would “lead to absurd consequences and glaringly unjust
1
Ameri-Force received the recommendation on August 29, 2016.
2
Ameri-Force argues that the § 928(b) fee-shifting provision is not triggered
because it did not “reject” the August 24 recommendation. But, as this court has
explained, § 928(b) “gives an employer an opportunity to avoid the payment of attorney’s
fees by either (1) accepting the Board’s or Commissioner’s recommendations or (2)
refusing those recommendations but tendering a payment that is accepted by the
claimant.” FMC Corp. v. Perez, 128 F.3d 908, 910 (5th Cir. 1997). Ameri-Force did neither.
It asserts that on September 12, 2016 it extended an offer to Rivera to pay $25,151.05 in
disability and $5,000 in medical benefits if Rivera did not seek attorney’s fees; and if Rivera
chose to seek attorney’s fees, Ameri-Force would pay $24,755.46 in disability and would
authorize medical payments subject to audit. The first of these offers was not an acceptance
of the August 24 recommendation because it was conditioned on Rivera not seeking
attorney’s fees. The second offer was, if anything, an acceptance of the September 7
recommendation, not the August 24 recommendation.
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results.” It likens such a requirement to requiring a party to obey a moot
order.
Ameri-Force provides no legal authority showing that a subsequent
recommendation renders a prior one moot.3 And the plain language of
§ 928(b) suggests no such thing. That provision merely states that after a
recommendation is issued, the employer may open itself up to attorney’s fees
liability if it refuses to accept the recommendation within fourteen days. 33
U.S.C. § 928(b). The statute says nothing about the effect of follow-up
recommendations, so such recommendations do not undo the direct
consequences of the statute’s plain terms.
Moreover, Ameri-Force’s analogy to a moot order crumbles under the
weight of examination. A party must follow a court order. If it does not, it
may be held in contempt of court. See Walling v. Crane, 158 F.2d 80, 83 (5th
Cir. 1946). So, if a later order contradicts an earlier one, a party can only
follow one of them. In such circumstances, it makes sense only to require a
party to follow the later order, so that the party has an open path to avoid
contempt. But a recommendation by a claims examiner is different. Parties
have no legal duty to follow such a recommendation. An employer may
become liable for attorney’s fees later if it refuses to follow the
recommendation, and the employee then pays for an attorney’s services, and
the employee ultimately obtains an award greater than the employer’s postrecommendation offer.
33 U.S.C. § 928(b); Carey,
627 F.3d at 982. So,
whereas two conflicting orders cannot operate simultaneously without
forcing a party into contempt, two active recommendations can overlap
without creating a Catch-22.
3
At oral argument, Ameri-Force’s counsel admitted there was no legal authority
one way or the other on the issue of whether a subsequent recommendation invalidates a
prior recommendation.
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Nor may the August 24, 2016 recommendation be ignored on the
ground that the recommendation was issued in a manner inconsistent with a
party’s expectations. If a claims examiner issues a recommendation, then a
recommendation has been issued for the purposes of § 928(b). That does not
change just because the parties may have expected otherwise. The
regulations promulgated under the statute confirm this understanding. They
provide that if parties do not agree with the claims examiner’s post-conference recommendations, then further conferences can be scheduled.
20 C.F.R. § 702.316. But that provision cautions that if a party disagrees with
a recommendation, the attorney’s fees provision may apply.
Id. (“If they
disagree (Caution: See § 702.134), then the district director may schedule
such further conference or conferences as, in his or her opinion, may bring
about agreement . . . .” (emphasis added)). That fees provision, like § 928(b),
explains that the employer owes attorney’s fees if it refuses to accept the
claims examiner’s recommendation and the employee procures a lawyer’s
services to obtain a greater award than that which the employer initially was
willing to pay.
20 C.F.R. § 702.134(b).
It is true that the regulations do not specifically contemplate when a
claims examiner issues a subsequent recommendation without a new
conference. But the regulations make clear that if an employer wishes to seek
reconsideration of an initial recommendation by way of a new conference, it
may do so but may be liable for attorney’s fees depending on the result. All
that to say, the regulations indicate that an employer must accept a
recommendation within fourteen days even if the employer anticipates
additional proceedings and determinations by the claims examiner.
Section 928(b) does identify an exception, but it does not apply here.
Under that exception, attorney’s fees are not due if: (1) the employer agrees
to a medical examination by a physician employed or selected by
the Secretary (an Independent Medical Examiner, or “IME”); and (2) the
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employer agrees to pay compensation in accordance with the IME’s
findings. 33 U.S.C. § 928(b).
In this case, however, Ameri-Force asked for the claims examiner to
reconsider the August 24 recommendation because of an anticipated report
from a medical examiner arranged by Ameri-Force—not an IME.4 The statute
reasonably allows an extension of the fourteen-day period when an employer
promises to abide by an independent examination. But a request to
reconsider in light of an employer’s own report is simply an objection to the
recommendation. An employer certainly is entitled to submit its own
evidence contradicting the employee’s assertions regarding the severity of
injury. But under the statute the employer cannot avoid attorney’s fees
liability by delaying the claims examiner’s recommendation simply because
the employer thinks the claims examiner got it wrong.
Ameri-Force also argues that the claims examiner’s August 24, 2016
recommendation was not a “recommendation” at all for the purposes of
§ 928(b) because it did not include a specific dollar amount due for average
weekly wage or total compensation. We disagree.
Section 928(b) provides that if a controversy develops over the
compensation an employee is due, “the deputy commissioner or Board shall
set the matter for an informal conference and following such conference the
deputy commissioner or Board shall recommend in writing a disposition of the
controversy.” 33 U.S.C. § 928(b) (emphasis added). We hold that the
recommended-disposition requirement is satisfied if the claims examiner
issues in writing a proposed resolution of any matter central to the question
of how much compensation an employer owes an employee.
4
The employer has referred to the medical examiner as an IME, but because the
doctor was selected by the employer and not the Secretary, that label is incorrect.
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This court has not squarely addressed the issue in a published case,5
but we find decisions of our sister circuits instructive. The Fourth Circuit
has held that the recommendation requirement was satisfied when “the
claims examiner recommended in writing that [the employee’s] ‘present left
knee problems be accepted as a result of the [incident in question].’”
Newport News Shipbuilding & Dry Dock Co. v. Dir., Off. of Workers’ Comp.
Programs, 474 F.3d 109, 113–14 (4th Cir. 2006). Because the employer “did
not accept [that] recommendation within fourteen days of its receipt,” the
employer opened itself up to potential attorney’s fees liability. Id.
In an identically named case, the Fourth Circuit also held that the
recommendation requirement was satisfied when “the District Director . . .
stat[ed] that the position of the Office of Workers’ Compensation Programs
was that [the employer] should begin payments of the [percent disability]
rating with which it had no disagreement.” Newport News Shipbuilding & Dry
Dock Co. v. Dir., Off. of Workers’ Comp. Programs, 477 F.3d 123, 127 (4th Cir.
2007). Under this instructive precedent, then, a recommendation is issued
for the purposes of § 928(b) when a claims examiner offers a conclusion on
an issue central to the determination of compensation owed. Notably, the
opinions do not appear to rest their conclusions on whether, for example, the
recommendation states a specific dollar amount owed.
Other cases suggest the same principle by explaining what is not a
recommendation. The Sixth Circuit held that no recommendation was
issued when the claims examiner explicitly stated in the “Recommendation”
5
In an unpublished decision, this court explained that a recommendation was not
issued by a claims examiner when the claims examiner explicitly stated that “she could not
issue a recommendation because she lacked the necessary wage and medical information.”
Craven v. Dir., Off. of Workers’ Comp. Programs, 407 F. App’x 854, 855–56 (5th Cir. 2011).
The memorandum from the claims examiner to the parties specifically explained that
“[c]urrent medical information” and “[w]age information should be provided . . . prior to
issuing a recommendation with regard to [average weekly wage].”
Id. at 856 n.2.
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section of the post-conference memorandum that no recommendation was
being made. Pittsburgh & Conneaut Dock Co. v. Dir., Off. of Workers’ Comp.
Programs, 473 F.3d 253, 263, 265 (6th Cir. 2007). And the Fourth Circuit
explained that a recommendation was not issued when the claims examiner
simply demanded a claimant provide evidence to support its assertion about
three days of lost time. Virginia Int’l Terminals, Inc. v. Edwards,
398 F.3d 313,
315, 318 n.* (4th Cir. 2005). So, in these cases in which a recommendation
was not issued, the claims examiner clearly made no determination on any
issue central to the question of whether or how much compensation was due.
In this case, however, the claims examiner did make a determination
on a central issue in its August 24, 2016 recommendation. Indeed, he did so
for multiple issues pivotal to the question of owed compensation. In a
document the claims examiner called a “recommendation,” he specifically
directed that: (1) “[Rivera’s] wages used to calculate [average weekly wage]
should include those listed as per diem by the employer and added to his
other wages to compute a compensation rate in this case”; (2) Rivera had no
food or lodging expenses; (3) Rivera’s average weekly wage should be
calculated by dividing by fifty-two his total earnings in the last year of his
work; and (4) Ameri-Force is Rivera’s last responsible employer “and [is]
responsible for [Rivera’s] 35.31% binaural hearing loss plus hearing aids.”
Each of these conclusions has a determinative effect on the total
compensation Rivera was due.
It is true that the recommendation also asked Ameri-Force to submit
documentation of Rivera’s yearly earnings. Perhaps for that reason, the
recommendation did not specify a particular dollar amount Ameri-Force
should pay. But the recommendation was nevertheless a recommended
disposition under § 928(b). Rivera’s yearly earnings were not in dispute
between the parties. The disputed issues up until that point were whether
per diem pay should be included in the average weekly wage, whether Ameri-
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Force was the last responsible employer,6 and the degree of hearing loss
Rivera suffered. The August 24 recommendation offered a conclusion for
each of these issues.
What is more, the August 24 recommendation gave Ameri-Force
everything necessary to determine the total compensation owed. The parties
had already identified the average weekly wage values both including and
excluding per diem payments. The August 24 recommendation concluded
that per diem payments should be included. The recommendation then
explained that the employer would be liable for Rivera’s 35.21% hearing loss
and for his hearing aids. As the District Director found, “[t]he Employer had
the necessary wage records in its possession to comply with [the claims
examiner’s] recommendation to add per diem payments and wage payments
for the 52 weeks preceding the accident date and to divide that amount by 52
to calculate the proper [average weekly wage].” The BRB did not disturb
that finding. Thus, the August 24 recommendation provided all the
remaining items necessary to determine the total compensation value, and it
described the equation by which to calculate that value. The employer
needed only to apply the instructions from the August 24 recommendation
to the numbers the employer already possessed, and that would have
produced the specific compensation amount due.
Relatedly, as a matter of statutory interpretation, “disposition” could
refer to what the August 24 recommendation accomplished. When § 928(b)
was enacted in its current form, Black’s Law Dictionary noted that the term
“dispose of” may refer to the determination of suits. Dispose Of, Black’s
Law Dictionary (4th ed. 1968). And it explained that “controversy”
can refer to either “a civil action or suit,” or simply “a litigated question.”
6
By the time the August 24 recommendation was issued, Ameri-Force had agreed
that it was the last responsible employer.
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Controversy, Black’s Law Dictionary (4th ed. 1968). So, we may
interpret “disposition of the controversy” to apply to situations in which the
claims examiner recommends a manner in which a dispute between parties
could be resolved. With that understanding in mind, the August 24
recommendation was a disposition in two related but independent senses.
First, it expressed a conclusion for all the central issues on which the parties
disagreed. Second, it provided everything necessary for the employer to pay
the compensation it owed. So, the August 24 recommendation was a
recommendation for the “disposition of the controversy.”7
Because all the criteria for an award of attorney’s fees under 33 U.S.C.
§ 928(b) are satisfied as to the claims examiner’s August 24, 2016
recommendation, we REVERSE the decision of the Benefits Review Board
and REMAND for further proceedings consistent with this opinion.
7
Rivera also argues that he is entitled to a fee award under § 928(b) based on the
claims examiner’s July 28, 2016 recommendation, on the ground that after that
recommendation Ameri-Force continued litigating the issue of whether it was the last
responsible maritime employer. Because Rivera did not present this argument to the BRB,
we will not consider it. See Gallagher, 219 F.3d at 437.
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Kurt D. Engelhardt, Circuit Judge, concurring in part and dissenting
in part:
I agree that Rivera’s petition was timely filed and that the August 24,
2016 recommendation was a “recommendation” for purposes of § 928(b).
On the instant record, however, I part ways with the majority regarding
Rivera’s entitlement to an award of attorney’s fees. Had the claims examiner
not issued the September 7, 2016 “Supplemental Informal Conference
Recommendation” until after the expiration of the fourteen-day period
following Ameri-Force’s August 29 receipt of the August 24
recommendation, I would agree with the majority’s determination. But,
importantly, that did not occur here. Instead, within those fourteen days, the
claims examiner issued the September 7 “Supplemental Informal
Conference Recommendation,” which recommended a different binaural
hearing loss percentage (28.16%) from that set forth in the August 24
recommendation (35.31%). Thus, relative to binaural hearing loss, the
September 7 recommendation superseded the August 24 recommendation
and triggered a new fourteen-day period for purposes of § 928(b). 1 Ameri-Force timely paid the resulting amount of indemnity benefits—$24,755.46—
within those fourteen days. It also timely paid the additional amount of
benefits set forth in the September 30, 2016 supplemental recommendation.
As a matter of policy, the informal conference and recommendation
process is designed to expedite the resolution of claims through the timely
exchange of pertinent information. I think that purpose was served here. That
is, the parties conducted themselves in good faith as expected by the statutory
1
Notably, the claims examiner’s issuance of the September 7 supplemental
recommendation was not unexpected by the parties or contrary to a prior agreement
between them. Indeed, the record reveals no objection by Rivera’s counsel to the
procedures and schedules proposed in Ameri-Force’s counsel’s August 5, August 29, and
September 1 correspondence.
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scheme in narrowing and then resolving the monetary amount due without
the necessity of a formal administrative hearing. Accordingly, I dissent with
the attorney’s fees aspect of the majority’s opinion.
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