Carey v. Ormet Primary Aluminum Corp.
2010 U.S. App. LEXIS 25029
| 5th Cir. | 2010Background
- Carey, a longshoreman for Ormet, received benefits under the LHWCA based on an AWW of $1,423.92, which included premium pay.
- Ormet challenged the inclusion of premium pay and sought an informal conference, which yielded a written recommendation to continue paying at $1,423.92.
- Ormet requested a formal hearing to contest the recommended AWW, and continued paying $1,423.92 through the hearing.
- ALJ ultimately rejected the premium-pay exclusion and set Carey's AWW at $1,369.15; Carey sought § 28(b) attorney’s fees, which the ALJ denied.
- BRB affirmed the ALJ’s denial; Carey sought review in the Fifth Circuit, which granted relief and remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether §28(b) applies when employer pays a higher amount after an informal conference | Carey: fees permitted if ultimately awarded more than paid | Ormet: no fee shifting unless final award exceeds amount paid; reasoning differs under statute | Yes; fee shifting applicable under Savannah Machine reasoning |
| whether Ormet's continuation of higher payments post-conference constitutes a refusal of the director's recommendation | Carey: employer refused to adopt recommendation by pursuing formal hearing | Ormet: continuation was not a refusal but a separate dispute strategy | Ormet's action constitutes a refusal to adopt the recommendation |
| whether Savannah Machine controls over Andrepont on §28(b) fee shifting | Carey: Savannah Machine remains controlling authority | Ormet: Andrepont undermines Savannah Machine | Savannah Machine controls; Andrepont does not overturn it |
Key Cases Cited
- Savannah Machine & Shipyard Co. v. Director, OWCP, 642 F.2d 887 (5th Cir. Unit B 1981) (affirms fee-shifting when employer pays but disputes entitlement; supports recovery of fees)
- Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir. Unit B 1981) (discusses § 28(b) framework and fee responsibility)
- Pool Co. v. Cooper, 274 F.3d 173 (5th Cir. 2001) (discusses § 28(b) requirements and post-award fees)
- Andrepont v. Murphy Exploration & Prod. Co., 566 F.3d 415 (5th Cir. 2009) (limits scope of fee-shifting under certain BRB outcomes)
- Va. Int'l Terminals, Inc. v. Edwards, 398 F.3d 313 (4th Cir. 2005) (Skidmore deference in interpreting LHWCA provisions)