UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-60606

GEORGE HILL,

Claimant-Petitioner,

VERSUS

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS;

U. S. DEPARTMENT OF LABOR; and AVONDALE

SHIPYARDS, INCORPORATED, self-insured employer,

Respondents.

Petition for Review of an Order of the

Benefits Review Board

November 10, 1999

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

George Hill appeals the Benefits Review Board’s (“Board”)

affirmance of the Administrative Law Judge’s (“ALJ”) decision that

Hill’s disability benefits claim was untimely under § 913 of the

Longshore Harbor Workers’ Compensation Act (“LHWCA” or “Act”), 33

U.S.C. §§ 901-50. Hill further appeals the reduction in attorneys’

fees and costs. For the reasons stated below, we affirm. 
1 Section 23:1209 of the Louisiana Revised Statutes provides in

pertinent part:

[W]hen the injury does not result at the time of, or

develop immediately after the accident, the limitation

shall not take effect until expiration of one year from

the time the injury develops, but in all such cases the

claim for payment shall be forever barred unless the

proceedings have been begun within two years from the

date of the accident.

2

I.

On October 1, 1980, Hill injured his back while working for

Avondale Shipyards, Inc. (“Avondale”). After a week of disability

leave, Hill returned to his sandblasting job until mid-November

1980, when Avondale transferred him to a position in crane hooking.

Hill continued to work in that capacity until he was laid off in

March 1983. 

On August 1, 1983, Hill experienced back pain and entered a

hospital emergency room. He was referred to Dr. Robert Fleming,

who evaluated him on August 23, 1983. Fleming informed Hill that

he had two bulging discs and would need surgery. 

Hill subsequently petitioned for state workers’ compensation

benefits on February 21, 1984. The Louisiana district court

dismissed Hill’s suit as being statutorily time-barred under the

Louisiana Workers’ Compensation Statute1 because he filed for

benefits over three years after the date of the accident. Hill

appealed the decision, but the Louisiana Fifth Circuit Court of

Appeals affirmed on February 25, 1992, and the Louisiana Supreme

Court denied certiorari and/or review on October 2, 1992. Hill’s
2 Section 913(a) states:

Except as otherwise provided in this section, the

right to compensation for disability or death under this

chapter shall be barred unless a claim therefore is filed

within one year after the injury or death . . . . The

time for filing a claim shall not begin to run until the

employee or beneficiary is aware, or by the exercise of

reasonable diligence should have been aware, of the

relationship between the injury or death and the

employment.

3 Section 913(d) states:

Where recovery is denied to any person, in a suit

brought at law or in admiralty to recover damages in

respect of injury or death, on the ground that such

person was an employee and that the defendant was an

employer within the meaning of this chapter and that such

employer had secured compensation to such employee under

3

application for reconsideration was further denied on November 6,

1992. 

During the pendency of this state claim, Hill filed a claim

for compensation under the LHWCA on June 24, 1992. The ALJ

concluded that Hill became aware, or by the exercise of reasonable

diligence should have been aware, of the relationship between his

back injury and his job with Avondale on August 23, 1983, the date

of Dr. Fleming’s consultation. As a result, that date triggered

the one-year limitations period to file a claim under § 913(a) of

the LHWCA.2 In Hill’s case, the one-year limitations period would

have terminated by August 23, 1984, seven and a half years before

Hill ever filed his LHWCA claim. Section 913(d) provides a tolling

exception to § 913(a), but the ALJ found that Hill’s claim did not

warrant the benefits of that provision.3 Among other things, the
this chapter, the limitation of time prescribed in

subsection (a) of this section shall begin to run only

from the date of termination of such suit. 

4

ALJ concluded that it was illogical for an untimely state claim to

suspend the statute of limitations for a LHWCA claim that was also

untimely filed. Lastly, the ALJ reduced the amount of attorneys’

fees and costs requested by Hill’s counsel. 

The Board affirmed, agreeing with the ALJ that a claim filed

in an untimely manner under a state compensation law cannot toll

the statute of limitations for filing a claim under the LHWCA. In

addition, the Board affirmed the ALJ’s reduction of fees and costs,

but modified it to include a sum for preparing the fee petition.

This appeal ensued. 

II.

We evaluate an order of the Board for errors of law and to

ensure that the Board reviewed the ALJ’s findings of fact for

substantial evidence. See Louis Dreyfus Corp. v. Director, OWCP,

125 F.3d 884, 886 (5th Cir. 1997). Substantial evidence is

relevant evidence that is more than a scintilla but less than a

preponderance. See Director, OWCP v. Ingalls Shipbuilding, Inc.,

125 F.3d 303, 305 (5th Cir. 1997). When reviewing the findings of

fact, we may not substitute our judgment of the facts for that of

the ALJ or reweigh or reappraise the evidence. See Louis Dreyfus,

125 F.3d at 886.
5

Hill first challenges the Board’s and the ALJ’s determination

that an untimely state claim does not toll a LHWCA claim’s statute

of limitations. To bolster his argument, he maintains that the

Board improperly ignored our holding in Ingalls Shipbuilding Div.,

Litton Sys., Inc. v. Hollinhead, 571 F.2d 272 (5th Cir. 1978), and

the Board’s own decision in Calloway v. Zigler Shipyards, Inc., 16

B.R.B.S. 175 (1984).

In Hollinhead, we confronted a Mississippi claimant who

initially filed a state claim for benefits less than seven months

after his injury. He later withdrew the claim and submitted

another one under the LHWCA over thirteen months after the injury.

Although the LHWCA claim was time-barred under § 913(a), the ALJ

found that the claimant’s filing and processing of his state claim

was an adequate excuse under § 913(d) to toll the statute of

limitations. We ultimately affirmed the ALJ’s decision and annexed

relevant portions of the ALJ’s conclusions of law to our opinion.

See Hollinhead, 571 F.2d at 273-75. Unlike the present case,

however, Hollinhead did not address the issue of whether an

untimely state claim is an adequate ground for applying the tolling

provision. Indeed, the precise question presented in Hollinhead
4 Thus, the ALJ’s decision discusses, at length, a district

court decision from Louisiana, Wilson v. Donovan, 218 F. Supp. 944

(E.D. La. 1963), aff’d, 328 F.2d 313 (5th Cir. 1964), which held

that workers’ compensation claims are suits at law for damages for

purposes of § 913(d). 

6

was whether a state claim for workers’ compensation qualified as a

suit brought at law or in admiralty to recover damages as required

under § 913(d).4 See Hollinhead, 571 F.2d at 273. 

In Calloway, several survivors of a man killed in a barge

explosion initially filed a suit in admiralty, alleging that they

were entitled to damages under the Jones Act. The district court

ultimately dismissed the suit when it found that the employer

(Zigler) was not the owner pro hac vice of the barge and that the

decedent was not a seaman under the Jones Act. While the admiralty

suit was pending and some thirteen months after the employee’s

death, the survivors filed a claim under the LHWCA. Despite that

claim being time-barred under § 913(a), the ALJ ruled that the

survivors’ claim fell within the tolling provision of § 913(d) and

approved portions of the claim. On appeal, the Board rejected the

employer’s argument that § 913(d) did not apply because the

admiralty suit was not dismissed for the reasons explicitly stated

in § 913(d), i.e., because the decedent was an employee and Zigler

was an employer under the Act and because Zigler secured

compensation for the decedent. The Board concluded that the

grounds, upon which recovery is denied in a suit brought at law or

in admiralty, are irrelevant for purposes of § 913(d). 
7

Notwithstanding this ruling, we readily distinguish the

propriety of extending the tolling provision to the claimants in

Calloway from the case at hand. Contrary to Hill, the Calloway

plaintiffs’ first attempt to receive benefits, via the admiralty

suit, was timely. To allow an untimely LHWCA claim to piggy-back

on a prior stale claim would be an abuse of § 913(d)’s tolling

provision and would subvert the purpose of statutes of limitation.

Such statutes aim to provide fairness to defendants and to afford

plaintiffs a reasonable period of time within which to present

their claims. See Albertson v. T.J. Stevenson & Co., Inc., 749

F.2d 223, 232 (5th Cir. 1984) (citations omitted). “Fairness to

the defendant requires the prompt vindication of known rights to

ensure that the defendant is not prejudiced as a result of lost

evidence, fading memories, and disappearing witnesses.” Id. Here,

Avondale would be at a substantial disadvantage in defending

against Hill’s claim due to the number of years that have passed

since his accident. And unlike the employers in Hollinhead and

Calloway, who were able to appropriately investigate and contest

their employees’ LHWCA claims due to those employees’ having timely

filed their initial compensation actions; Avondale never had such

an opportunity. Because Hill untimely filed his state compensation

claim, Avondale merely had to concern itself with the prescription

issue in state court, rather than the merits of Hill’s claim.

Accordingly, there was no impetus for Avondale to properly
g:\opin\98-60606.opn 8

investigate that claim and procure evidence that could later be

used in an LHWCA action.

Based on these facts and the differences between this case and

the decisions in Hollinhead and Calloway, we hold that an untimely

state law claim cannot toll the statute of limitations for filing

a LHWCA claim. 

III.

As a corollary to the appeal of the benefits award, Hill also

seeks a modification of the attorneys’ fees and costs awarded in

this case. The ALJ reduced the number of necessary attorneys’ fee

hours by 75% based on Hill’s failure to succeed in the prosecution

of his primary claim for permanent total and partial disability

compensation. Furthermore, the ALJ excluded hours for services

performed prior to the date of the case’s referral to the Office of

Administrative Law Judges, lowered the hourly rate of one of Hill’s

counsel, reduced the time requested for telephone calls lacking in

specificity, denied some blanket charges for work on non-descript

correspondence, and denied charges for unwarranted medical and

legal research. The Board affirmed, but it allowed an additional

sum for preparation of the fee petition. 

We note that an ALJ’s reduction of attorneys’ fees and costs

will be affirmed on appeal unless it is arbitrary, capricious, or

an abuse of discretion. See Ledet v. Phillips Petroleum Co., 163
g:\opin\98-60606.opn 9

F.3d 901, 905-06 (5th Cir. 1998). Here, the ALJ conducted an

extensive review of counsel’s requested fees and costs, discussing

in detail the basis for the adjustments. Based on our examination

of the record, we cannot conclude that the ALJ’s analysis was

legally infirm or that he abused his discretion in amending the

requested attorneys’ fees and costs. Consequently, we find no

error in the Board’s affirmance.

IV.

Because an untimely filed state claim cannot toll the statute

of limitations of an LHWCA claim and because the reduction in fees

and costs was not an abuse of discretion, the decision of the

Benefits Review Board is AFFIRMED.