The U.S. Fourth Circuit Court of Appeals recently denied a claimant's Petition for Review of the denial of her modification proceeding. In Tyler v. Main Industries, Inc., 17-2021 (4th Cir. 4/2/18), an unpublished decision, the Fourth Circuit refused to review the Benefits Review Board's decision affirming the administrative law judge's dismissal of the claimant's modification request. The ALJ had determined that the modification proceeding was untimely, based on the following facts. On August 21, 2008, the claimant filed a claim for injuries to her tailbone, back, neck and right ankle which she allegedly sustained on July 31, 2008, while working for her employer. In a decision and order dated December 12, 2011, the ALJ found the claimant was entitled to temporary total disability benefits through December 8, 2008. The BRB affirmed this decision on December 17, 2012. On January 26, 2015, the claimant filed a motion for Section 22 modification. The BRB noted that a Section 22 modification request must be filed within one year of the last payment of compensation, or, if a claim is denied, one year from the date the decision becomes final. As a result, a modification request must be filed within one year after the conclusion of the appellate process. As the claimant filed her modification request more than one year after December 17, 2012, the ALJ ruled it was untimely. The BRB affirmed the ALJ's determination. The Fourth Circuit denied a petition for review, finding the BRB decision "based upon substantial evidence and ... without reversible error."
The Board rules that when the “claimant successfully defends his award of benefits against employer’s modification request, his counsel is entitled to an employer-paid fee.” The claimant was receiving temporary total disability benefits before the modification request. The ALJ denied the modification request and awarded continuing temporary total disability benefits. Because the ALJ believed that no additional benefits were obtained, he denied an attorney’s fee. Comparing this situation to when a claimant’s counsel successfully defends an appeal of benefits, the Board held that an employer-paid attorney’s fee was proper.
Grabbert v. Electric Boat Corp., BRB No. 13-0560 (6/4/14)
© 2018 Ira J. Rosenzweig