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Section 28 of the LHWCA addresses the payment of attorney fees for claimant’s counsel.
- Three general categories:
- 1) those cases where no compensation has been paid (28(a));
- 2) those cases where some compensation has been paid and a informal conference takes place (28(b); and
- 3) all other cases (28(c)).
Only in the first two cases is the obligation to pay is shifted to the employer.
In all other cases, the obligation to pay attorney’s fees remains the responsibility of the injured worker.
Fee-shifting is designed to incentivize employers to pay up.
It penalizes the employer’s failure to voluntarily pay compensation. Tthe employer also may be liable for costs under Section 28(d).
and ... how can you enjoy
those shifted fees in Chicago??
Section 28(a) applies where:
- an employer is properly notified of a claim
- but refuses to pay ANY compensation
- within 30 days of receiving notice of claim from the District Director.
In 28(a) cases, the employer is responsible for all attorney fees for a “successful prosecution”.
A prosecution is successful when counsel has proved that employer is liable for some compensation and/or medical benefits.
Employer is liable for fees incurred after 30 days from receipt of notice of the claim
or
from the date the employer declined to pay benefits, whichever occurs sooner.
And just what will
28(a) cash buy in Chicago?
Section 28(b) applies where an employer voluntarily pays some compensation following an injury, but controversy arises regarding additional compensation to be paid.1 Examples include issues related to AWW & the nature, extent or need for medical treatment.
Under Section 28(b), an informal conference must take place.
- Employer has 14 days to “accept” or “reject” the recommendation of the District Director.
- If employer “accepts” the recommendation, no attorney’s fees are due.
- If the employer “rejects” the recommendation and the claimant secures the benefit recommended by District Director, then employer is liable for attorney’s fees and costs.
- Employer is not responsible for any attorney’s fee incurred prior to the date tge controversy develops.
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