1 Avondale also challenged the BRB’s decision awarding

attorney’s fees to Eugene Craig. This opinion was originally

issued referencing Craig’s case along with the cases of Alario and

-1- United States Court of Appeals

Fifth Circuit



## FILED

December 29, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-60470

AVONDALE INDUSTRIES, INC.

Petitioner

VERSUS

RAY ALARIO; JOSEPH HOWARD; DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

Petition for Review of Orders

of the Benefits Review Board

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:

Petitioner Avondale Industries, Inc. (“Avondale”) challenges

the Benefit Review Board’s (“BRB”) award of attorney’s fees to

respondents Ray Alario and Joseph Howard under section 28(a) of the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.

§ 928(a). 1 For the following reasons, we deny Avondale’s petitionHoward. But the BRB’s decision of these three consolidated cases

actually remanded Craig’s case to the district director for further

proceedings. Thus, there was no final order of the Board with

respect to Craig, and Craig was dismissed from this appeal on

September 18, 2002. The Director of the Office of Workers’

Compensation Programs filed a motion to amend the judgment

requesting that the original opinio n be revised to remove the

references to Craig’s case. The Director’s motion is granted, and

this opinion has been revised to reflect th at only the cases of

Alario and Howard are before this court.

-2- for review.

I. BACKGROUND

Re spondents were Avondale employees. Each filed an LHWCA

claim with Avondale seeking payment for work-related hearing loss.

A. Ray Alario

On July 12, 1999, Alario filed a LS-203 Claim for Compensation

w ith the deputy commissioner alleging hearing loss caused during

his ten-year employment with Avondale and attached an uninterpreted

audiogram. Alario also provided Avondale with notice of the claim,

although it was not formally served on Avondale by the deputy

commissioner until August 4, 1999. On July 30, 1999, Avondale

filed a LS-207, Notice of Controversion of Right to Compensation,

refusing to pay compensation and contending it did not have

sufficient evidence of the degree of hearin g loss. Avondale

alleged that it could not know the degree of Alario’s losses until

it received an audiogram and an audiologist’s report interpreting

the audiogram.

On August 19, 1999, Alario obtained the audiogram and report,

which indicated a 62.8% hearing loss. The day after Avondale-3-

received the report on September 13, 1999, it commenced paying

benefits. On September 27, 1999, Avondale had Alario undergo

examination by its own audiologist who set Alario’s hearing loss at

54.1%. When Avondale received this report, it averaged the two

results together an d sent Alario a check for the remaining

compensation on October 7, 1999. Alario’s attorney then requested

attorney’s fees under LHWCA §28(a). The district director denied

the request. After Alario filed a motion for reconsideration, a

different di rector granted the request for attorney’s fees.

Avondale appealed the decision to the BRB.

B. Joseph Howard

On November 19, 1996, Howard filed a LS-203 claim for

compensation for hearing loss, but unlike Alario, h e did not

prov i de an uninterpreted audiogram. Although Howard provided

Avondale wi th earlier notice, the deputy commissioner served the

claim on Avondale on December 31, 1996. On December 12, 1996,

Avondale filed a LS-207 form controverting the claim until Howard

provided an audiogram and report. On January 8, 1998, Avondale

received a copy of the inte rpreted audiogram and report from

Howard. The report indicated a 13.8% hearing loss, and Avondale

paid Ho ward for his hearing loss on January 15, 1998. On August

21, 1999, Howard’s attorney so ught reimbursement for attorney’s

fees under LHWCA § 28(a). The district director granted the fee

petit ion, ordering Avondale to pay attorney’s fees from December

31, 1996 until January 15, 1998. Both parties appealed the-4-

decision to the BRB.

C. Consolidation

The BRB, considering the cases individually, originally denied

the requests for attorney’s fees. The BRB then granted a motion

for reconsideration en banc and consolidated the cases. On October

5, 2001, sitting en banc

, the BRB unanimously granted attorney’s

fees to respondents under LHWCA §28(a). On May 23, 2002, the BRB

denied Avo ndale’s motion for reconsideration e n banc

. Avondale

then timely filed a petition for review. The Director of the

Office of Workers’ Compensation Programs filed a brief arguing that

the BRB’s decision awarding respondents attorney’s fees should be

affirmed.

II. ANALYSIS

A. Standard of Review

“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.” P ool Co. v. Cooper

, 274 F.3d 173, 177 (5th Cir. 2001)

(citations omitted). But this court does afford S kidmore deference

to the Director's interpretation s of the LHWCA. I d. Under this

approach, the amount of deference owed the Director’s

interpretation "will depend upon the thoroughness evide nt in its

consideration, the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those factors which give

it power to persuade, if lacking power to control." United States-5-

v. Mead Corp

., 533 U.S. 218, 228 (2001) (quoting Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944)).

B. The BRB’s Decision

In concluding that Avondale owed attorney’s fees pursuant to

section 28(a), the BRB noted that “neither the Act nor the

regulations require that a claimant submit evidence with his claim

before the requirements of Section 28(a) are triggered.” C raig v.

Avondale , 35 B.R.B.S. 164, 165 (2002) . Section 28(a) states:

If the employer or carrier declines to pay any

compensation on or be fore 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, th ere shall be awarded, in addition to

the award of compensation, in a compensation order,

a reasonable attorney's fee against the employer or

carrier in an amount approved by the deputy

commissioner, Board, or court, as the case may be,

w hich shall be paid directly by the employer or

carrier to the attorney for the claimant in a lump

sum after the compensation order becomes final.

33 U.S.C. §928(a) (emphasis added). The BRB thus noted that “[t]he

Act is clear that an employer may pay or decline to pay within 30

days after it receives the written notice of ‘a claim’ from the

district director; however, no other ‘evidence’ is required before2 Ray Alario atta ched an uninterpreted audiogram to his claim

form while Joseph Howard did not. This potential distinction is

not relevant under the BRB’s analysis, Avon dale’s arguments, or

this court’s analysis. Thus, the cases may be analyzed together.

-6- the 30-day period begins to run.” 2 The BRB also noted that

Avondale did not pay on or before the thirtieth day after receiving

the LS-203 claim fo rm from the deputy commissioner in any of the

three cases. T he BRB therefore held Avondale liable for

respondents’ attorney’s fees under section 28(a).

C. Avondale’s Arguments Challenging the Decision of the BRB

Avondale makes two arguments challenging the BRB’s decision.

First, Avondale argues that a “valid claim” triggering the deadline

outlined in section 28(a) has not been made until the claimant has

provided an audiogram administered by a licensed or certified

audiologist along with an accompanying interpretive report. In

making this argument, Avondale relies on section 8(c)(13)(C) of the

LHWCA which provides:

An audiogram shall be presum ptive evidence of the

amount of hearing loss sustained as of the date

thereof, only if (i) such audiogram was

administered by a licensed or certified audiologist

or a physician who is certified in otolaryngology,

(ii) such audiogram , with the report thereon, was

provided to the employee at the time it was

administered, and (iii) no contrary audiogram made

at that time is produced.

This argument is unavailing. Although section 8(c)(13)(C)

states that an audiogram accompanied by an interpretive report is

“presumptive evidence of the amount of hearing loss,” th e Act3 Form LS-203, entitled “Employee’s Claim for Compensation”,

specifically states: “I hereby make claim for compensation

benefits, monetary and medical, under the [Act].”

-7- nowhere s tates that such evidence is required for a claim to be

considered filed for the purposes of section 28(a). This provision

only provides a mechanism for presumptively establishing the amount

of a hearing loss claim if that claim is controverted. It does not

require a claimant to provide this evidence when filing the claim.

Section 28(a) makes it clear that the operative d ate for

avoiding the potential shifting of attorney’s fees is thirty days

after the employer receives formal notice of the claim; section

28(a) does not mention the term “evidence”, let alone require that

certain evidence be provided when a claim is filed. A claim

requires only a writing disclosing an intention to assert a right

of compensation. F ireman’s Fund Insurance C o. v. Bergeron

, 4 93

F.2d 545, 547 (5 th Cir 1974) . Form LS-203 clearly meets this

requirement and is in fact the form administratively prescribed for

a claim under the A ct. 3 Thus, respondents filed valid claims by

filing Form LS-203.

In arg uing that presumptive evidence is required before a

hearing loss claim can be considered filed under sectio n 28(a),

Avondale expresses concern that to avoid fee-shifting under the

plain reading of section 28(a), employers will be required to pay

benefits for hearing loss claims before they have the information

required to pay those claims. But the employer is free to schedule-8-

the claimant for a hearing evaluation by a physician of the

employer’s choosing to determine the amount, if any, of hearing

loss. In fact, here Avondale sent Alario to its own audiologist

after receiving an interpreted audiogram. There is no reason why

Avondale could not have done so immediately upon receiving the

claim itse lf or formal notice of the claim. This would allow

Avondale to ascertain the proper amount of payment and begin paying

in time to avoid the fee-shifting provision.

Along these same lines, Avondale maintains that hearing loss

is diff erent from all other scheduled losses under the LHWCA.

Avondale states that all of the other scheduled losses can be

objectively determined while hearing loss is more subjective. But

when Congress has chosen to treat hearing loss claims differently

from other claims, it has clearly done so. S ee 33 U.S.C. §

908(c)(13)(D) (statute of limitations) ; § 908(c)(13)(E) (method of

calculating impairment) . In relation to section 28(a), Congress

has made no indication that hearing loss claims are to be treated

differently fro m any other claim. In short, Avondale’s argument

that the deadline in section 28(a) is not triggered for hearing

loss claims until the claim is accompanied by presumptive evidence

of the amount of the claim is not supported by the statute.

Avondale’s second argument is that it did not decline to pay

compensation and is therefore not liable for attorney’s fees under

section 28(a). This argument is without merit. I n both ca ses,-9-

Avondale filed a Form LS-207, Notice of Controversion of Right to

Compensation, before the thirtieth day after receiving formal

notice of the claim from the deputy commissioner. In W eaver v.

Ingalls Shipbuilding, Inc. , 282 F.3d 357 (5 th Cir 2002), the Court

held that the attorney’s fees may be assessed against the employer

from the date of receiving formal notice of the claim if the

following four elements for fee-shifting are satisfied: (1) formal

notice, (2) employer controversion of the claim, (3) successful

prosecution by the claimant, and (4) use of an attorney to

prosecute the claim. Id. at 359-60.

H ere, by arguing it did not decline to pay, Avondale

challenges only whether there was controversion of the claim. But

filing a Form LS-207, Notice of Controversion of Right to

Compensation, clearly satisfies that requirement. As in Weaver

,

the fact that Avondale filed these forms before receiving formal

notice of the claims from the deputy director is irrelevant. All

four elements have been met here, and Avondale has not argued that

any portion of the fees awarded by the BRB were incurred prior to

Avondale’s receiving formal notice of the claim fro m the deputy

commissioner.

III. CONCLUSION

Under a plain reading of section 28(a), respondents were

entitled to attorney’s fees. Therefore, Avondale’s petition for

review is denied.-10- PETITION FOR REVIEW DENIED.