good afternoon we're pleased to be back in court with you and we're trying to accommodate lawyers who wish to have in person argument where we can we can't always accommodate them but where we can we  trying to do that so in a with safety measures you know that you'll be wearing masks the court the judges are all spread out the gallery is spread out we have plexiglas we have microphone covers we have all sorts of devices you've had individual check in times and each case is been set for a separate time rather than all set at nine am back to back so we've done a number of things of that we can make this a safe place for oral argument and if you have any suggestions for improvement i'm sure we would appreciate them but were of this is our fifty seven ramon rivera versus the director office of workers compensation programs mr briscoe he may proce any benefits within fourteen days of receipt of the aug th two thousand and sixteen recommendation as before i begin my principal arguments i do want to knowledge that this court has carried with the case the respondents motion to dismiss the appeal on a time issue obviously if the court has any questions regarding that motion i'm happy to answer the questions you know on my primary argument or during the five minutes we reserve for rebuttal the legal issue before this court is simply whether a subsequent recommendation from the department of labor receipt on the receipt ok and carib your meddling in this court that even where an employer alleges that it's accepting a recommendation if it takes actions contrary to that recommendation and continues to dispute the recommendation the employer is not benefits in compliance with the recommendation must be in writing and on conditional benefits review board has confirmed this on multiple occasions in the consolidated cases of jackson the newport news atkins the newport news and hit on  contentions in the briefs debating what was said during that phone call but it doesn't matter what was said during that phone call because in section nine hundred and twenty eight b the act is clear the tenure of benefits within fourteen days of a recommendation must be in writing so that the phone call doesn't matter on the same day september th counsel for employer with an e mail and said before we go any further in settlement let me be clear that our offer to pay the benefits they ultimately paid is conditioned on the claimant no of the settlement can be found i think the only there's the e mail on september th there's old similarly a letter on the following day in the record from the employer and that letter may have been  unconditional tender of benefits and ultimately the claimant did not obtain additional benefits beyond that tender the problem is that letter occurred on the th that under this d statute expressly states that an employer shall tender benefits within fourteen days and receive the recommendation the employer acknowledge receive the recommendation and on august th if because they waited more than fourteen days to unconditionally tender the benefits in writing the provisions of section twenty eight dollars be applied here in the more benefits the in the employer expressed lead tenders within fourteen days ever see the recommendation once on august th the district director made a recommendation that the employer was responsible for thirty five percent impairment rating to mr or bears hearing the employer within fourteen days of that recommendation the employer did not unconditionally tender any benefits at all even though they found a tender benefits for that fourteen days of the subsequent september th recommendation they are still required to pay attorney's  director shall issue a recommendation it doesn't contemplate these district director withdrawing prior recommendations or supplementing prior recommended ok so we look at the th recommendation and we count from the twenty nine to fourteen days and then you're tell us the single your best position that that one let's not satisfy brite that at tab fifteen in the record appendix that we have the email from the employer this is in the employer's attempt this is what the employer contains is the tender of benefits that you mail expressly conditions the tender of benefits on the claimant not submitting if the petition and this court is held in or and carried you are met a loon and there can be no  n on a tender to pay benefits and so because there was that condition on in the in the email it was an unconditional tenure of benefits the other reason that with the rule that we're asking this court to impose is simply that section nine shall bring an informal conference to a close he shouted issue a recommendation and based on the evidence before him at that time that code of federal regulations specifically contemplates that there may be subsequent informal conferences and parent that equally warns employers that if they disagree with the prior informal conference recommendation they need to read back and see the c f r that near section twenty b that says they only have fourteen days in which to tender benefits  compliance or based on that prior recommendation and even though they're expecting a subsequent recommendation if they do not tender any benefits within fourteen days of the prior recommendation they may be subject to fees under section twenty reading further into section twenty eight dollars the congress provided a single outlet for an employer to avoid fees where the issue at the informal conference is the nature and extent of the claimants injury if the employer agrees to submit t claimant to an independent medical exam and agrees to pay the compensation owed on that independent medical exam section twenty eight b would not apply to the employer following that august th informal conference the remaining issue was the nature and exten injury the employer wrote a letter to the it department labor aug th claiming that i was going to submit additional medical evidence of the department of labor and asking the department of labor to change its impairment rate nor their recommendation on the impairment rate based on that additional medical evidence that the recommendations to be changed to reduce the claimants impairment rate because the nature and extent of the claimants injury was at issue here the employer could have  winnie's between nd medical opinions which are experts hired by the employer an independent medical exams which are experts hired or pointed by the department of labor the benefits review boards holding expands this express provision in section twenty eight b to allow employers to avoid feel liability under section twenty b where they get a nd opinion and not an independent medical and we believe that's a plain departure from the language in section twenty so what do you specifically want to hold there's a number of things that you think went wrong in this process what is it important for us to haul the most important into this court to hold is that a subsequent recommendation does not render a prior  purposes of the shifting that's that's that the only holding i think where the benefits review board went wrong they held that because the employer received a subsequent recommendation from the department of labor to pay something different on september th than what was recommended on october th the employer was granted an additional fourteen days to tender any benefits or accept the prior recommendation that's it that's a clear d air and is unsupported by a plain reading of ok and you can't get around that the other side can't get around that by saying well even if there was a subsequent it's the same amount so it doesn't matter because it's not conditional is that the correct they act in the nd that we've got over that right september th was obviously conditional offer they can't get around that so if this court upholds the august th recommendation had to be complied with or the employer had to at least tender some benefits within fourteen days of that recommendation it's clear the employer failed to do the backstop to our recommendation from the department of labor and pay the benefits the department of labor is recommended or the employer can simply tender the benefits that it believes are owed d and even if that's not the same amount that the department of labor was recommending if the claimant never obtains more benefits than the employer never has to pay its earnings fees on one september th the employer was in receipt of the recommendation that had all of the in from and they were seated their own medical evidence and all the information they needed to know as to what benefits they expected mr bear would be entitled to instead of tendering those benefits to mr rivera they simply offered nothing to the employer raises several different issues regarding the recommendation that it wasn't sufficient employer to reject the recognition however it's our position that the employer did express the reckoning reject the recommendation the it's august th letter to the department of labor asking for a different recommendation and in september st letter to the department of labor submitting court my name is chris williams and i'm here on behalf of the respondents mera for since it well this case has a somewhat complicated procedural background issue before the court today is fairly simple and that's whether claimant whether claimants council is entitled to attorneys fees from the employer under section twenty eight dollars b this court specifically addressed the interpretation of twenty eight dollars b in on spot the murphy up exploration and how that there's four requirements that must be met to transfer fee the st is an informal conference the nd is a recommendation to pay compensation the rd is a refusal from the employer to accept the recommendation not to be construed for refuse to accept such written written recommendation and then it provides for maternity to avoid fees if it does refuse to accept the recommendation and that is by tendering compensation nothing in section twenty eight excuse me twenty eight b nine hundred and twenty eight b requires d an employer to accept a recommendation in writing within fourteen days of its issuance and that is very important here because as the court  pont noted we're dealing with the american rw as the foundation here to stray from the american rule we group we need a statute with specific and explicit language stating how and when  would be shifted to the employer here under section twenty eight b the employer must refuse to accept the recommendation for fees to be shifty what's clear in this case is the employer did not ever refuse to accept the recommendation with respect to the july recommendation the employer in fact wrote to the department of labor and said we accept a recommendation that was asked to last responsible and they continued to negotiate it as your honor and that is essentially what the making a counteroffer by asking for something else that i guess i have the same question about the september th offer it was six presley contingent on rivera not seeking attorneys fees so if that was not an acceptance of a dress dress each recommendation individual and not every recommendation from the claims examiners the same the claims can examiner can recommend less responsible employer it can recommend entitle me to the claimant to seek treatment from the different medical provider it can recommend entitlement to den the indemnity benefits medical benefits it can recommend that the employers entitle to an  independent medical evaluation but for purposes of twenty eight d m we need a specific recommendation to pay compensation for fees to be shifted this was addressed by the benefits review board and johnson being northrop grumman where the board employer that the new claims examiner who was assigned to this case wasn't aware of the procedural posture so the employer made him aware of this procedural posture then the claims examiner it and by the way the employer made him aware of that through a letter to the department additional time to accept that recommended and in this conversation was memorialized in a letter sent to the department of labor on september st and asking that i asking the with the condition of no attorney's fees followed the conversation that the employer employees counsel had with claimants counsel and in that conversation the employer conveyed to the claimants counsel that here was an offer to settle d and in the alternative if you do not accept the offer to settle we are we are accepting the recommendations of the claims examiner and that conversation was memorialized in writing sent to opposing counsel the next day and your art this brings us back to the issue under section twenty eight it does not require an employer to accept the recommendation in writing within the fourteen day period and therefore in there is no dispute that that conversation took place and there is no dispute that the employer conveyed to claimants counsel that they would be accepting the recommendation if not full were if they didn't if they chose not to accept settlement the big issue here that that claim it takes is that because that correspondence was on the th day one day after their conversation fourteen days after receipt of the august th findings that that the employee should be subject to attorney's fees here conferences or issue subsequent recommendations as the parties are working out the process didn't that one is considered moot in no longer has the fourteen day period attached to where to say that in the regulations well your honor respectfully the federal regulations say nothing about an employer except in a having to accept a recommendation in writing within fourteen days to avoid liability for attorney's fees the code of federal regulations which claimant cites for the notion that a recommendation must be accepted in writing deals with federal regulation seventy two dollars which is specifically directed at the actions of the district director this code of federal regulation provides that the district director d will hold an informal conference issue a recommendation issue a memorandum of informal conference if the parties can agree on the issue he resolves it if they disagree on the issue that he will conduct additional informal conferences this portion of the federal regulation that references that cautions about section twenty eight b is if they disagree here the parties did not ever refused to accept the the recommendation the recommendation that was worth thirty five point three one percent by no hearing loss within fourteen days of that recommendation that the claims examiner issued a new recommendation that employer was not in fact responsible for thirty five thirty one percent hearing loss his new recommendation was that employer was responsible for two thousand and twenty eight point sixteen dollars so if the employer had agreed to a previous recommendation within fourteen days that was rendered moot by a subsequent recommendation what exactly would the employer be agreeing to in that case the claims examiner since the completely changed his findings in this regard d and it is the answer to my question there is absolutely no specific regulation or that contemplates withdrawing cancelling the obligations associated with the prior recommended your honor i have of federal regulations that states that a district that a claims examiner cannot issue a subsequent recommendation rendering his previous recommendation nor have i found a federal regulation that says that he cannot do so if you are their lies is that is no regulation that speaks to whether or not the the behavior of the examiner was correct in this case i agree with that your on the other hand is that the benefits review board has looked at this issue and was still in effect and this is not foreshadowing this is a hypothetical we were to determine that and there is no actual acceptance within the fourteen day then what your honor then the employer would be responsible for attorney's fees under the condition that this court finds that twenty eight b requires an employer to accept a recommendation in writing within fourteen days to avoid liability for fees because there is no dispute here that the employer's counsel had a conversation with the claimants counsel wherein the employer conveyed that it was offering to settle the claim and if the claimant did not not accept that offer it was agreeing to the recommendations of the claims examiner this happened on september th within fourteen days of the august th findings it was that conveyed also to mr rivera's counsel simultaneously but was it only conveyed to the examiner the offer to settle was conditioned on not seeking attorney's fees the acceptance of the of the recommendation was has had no condition on it whatsoever the employer stated it would accept the recommendations of the claims examiner with respect to  e benefits owed as well as the hearing aids that he recommended and again this is found in the letter of record excerpt to that employer wrote to claimants counsel memorializing the conversation they claim it would have  employer condition the acceptance of medical benefits on the stipulation i'm sorry around and in here brief the void grave says the employer condition the acceptance of medical benefits on a stipulation that the claimant not seek attorney's fee honor the the offer was of twelve for twenty five thousand one hundred and fifty one dollars for indemnity benefits and five thousand dollars for medical benefits conditioned on the claimant not submitting an attorney's fees in the alternative the employer accepted the recommendation of twenty eight point one six percent by no hearing loss for a total of twenty four thousand seven hundred and fifty five dollars forty six cents owed to the believe that the that settlement was commemorated in a die under nine thousand and eight eye of the act it it is the application for approval of settlement that submitted to the department of labor department d of labor did in fact settle that and that's not an begs the question of what benefit is the claimant received beyond that which the employer was willing to pay after the claims process and while a claim attempts to rely on on cherry view or that the employer continued to issue that's simply not the case we're dealing with an informal claims process where the parties or to come together before the department of labor discuss the facts of the the case submit evidence and come to a resolution when the case did come to a resolution the employer accepted that resolution and wound up paying the claimant exactly what was recommended by the claims examiner and agreed to by the parties i want to turn back to while i can if i may to the  otherwise there is no action that the employer must have to take here this was again analyzed in terms of a new order of the northrop grumman where the court found that without a specific recommendation as to the amount that the employer was required to pay fees under twenty eight dollars we will not record any recommendation for the claims examiner does not necessarily trigger feeds we have to look at the august th recommendation what we have we have a recommendation for so here it wasn't until september th that the claims examiner issued specific recommendations that the employer was required to pay a compensation rate of four hundred and thirty nine dollars fifty five cents that it owed the claimant twenty four thousand seven hundred and fifty five dollars forty six cents and there is no dispute that when the claims examiner issued that specific recommendation that the employer accepted that recommendation and you covered that you are twenty  had represented that he worked at a different location from one where the employer's employees actually worked the claims examiner found that that the claimant had sufficient sufficient evidence to be sent that the employer would be the last responsible lawyer and this was accepted in writing without question within fourteen days of its issue it's what came of after the fact is while submitting a wage records to the department of labor the employer realized that the claimant had last worked at north american fabricators rather than a treaty shipyard where he said and so the employer asked the claims examiner to reconsider his decision the employer didn't never rejected that initial decision and in fact when the claims examiner in august and september the new claims examiner found the employer to be the last responsible employer the employer continued to accept that recommendation so while claimant would say that it's an expressed refusal that it was employer's especially expressive back to twenty eight dollars the issue under twenty a day an employer pay some compensation accepting some liability which the employer didn't that case and that's why we're here in dress and twenty p rather than twenty a day ok well i have a further question  checks is there any requirement for actual tendering and when did any actual tendering occur in this case you want to see that amount of time i believe the answer is a question tha t i don't think there's a dispute here that the employer contender compensation by saying that it will take a certain amount that's tendering compensation because tendering which actually means handing it over i'm going to understand you know the case the case law says that state is stating affirming the that an employer will pay the compensation what kay says that and i don't have them for me that claim a claim in his brief that in his brief the what what is what is important about it though is that the obligation to tender doesn't arise until the employer refuses to accept the recommendation and there's no dispute here that the employer timely complied with the seven september th recommendation here and that's a good point though your honor because in some circumstances when a claims examiner makes a recommendation it is impossible for the employer to pay for that recommendation until a much later date which is exactly the case when it comes to hearing aids because with a medical device the way it works under the longshore act is that a claim that receives a specific recommendation and if you chooses to have that medical device he submits that request to the employer subject to audit pays pay i think i understand your question if you believe there served circumstances that make it impossible to tender payment and the time fourteen days yes thank you case the atkins v newport news in hit the newport news and in those cases the benefits review board has said that the tender of benefits must be an unconditional offer to pay those benefits so the employer can do two things you can either pay the recommendation of the district director the nd is to disagree with the recommendation of the district director but tender some lesser amount of benefit if the claimant never obtains more benefits than were tender unconditionally offered in the claimant would be entitled to attorney's fees in this case the employer clearly did not accept the recommendation of august th two thousand and sixteen and i think there's a distinction here the employer has alleged in its brief that indifference to a recommendation is not the same as refusing to accept the recommendation as a party to litigation i find it hard to understand how we can be indifferent to a court's order with a department of labor's recommendation and claim we're not refusing to follow that  employer wrote letters to the department of labor asking for a different recommendation those were explained express rejections of the aug th recommendation so the next question for the court is simply did the employer tender any quickly go back and address the phone conference again we clearly have a dispute as to what was said during the september th phone conference but the best evidence as to what was said during that conference is in the recommendation was complete was never stirred by the benefits review board the district director found that there was more than enough information in the august th recommendation for the employer to pay benefits and in fact in the august th letter from the employer to the department of labor they repeated the average weekly wage of director told the employer to pay on it so we don't think that there was any ambiguity based on the august th recommendation that they were yawners unless you have any further questions i don't have anything else that thank you we have your argument  you this concludes this argument we appreciate counsel's arguments on both sides of the case and we appreciate you coming today to argue the case the case is needed for our consideration