Rivera v. DOWCP, 22 F.4th 460

Rivera, a longshore worker, filed a hearing-loss claim against Ameri-Force; employer paid limited benefits and disputed liability/ wage calculation.
Claims examiner held informal conferences and issued an August 24, 2016 written recommendation finding Ameri-Force the last responsible employer, awarding 35.31% binaural hearing loss, and instructing that per diem be included in average weekly wage.
Ameri-Force sought reconsideration and submitted its own medical exam; the claims examiner issued a September 7, 2016 supplemental recommendation averaging the competing loss rates (28.16%) and specifying a dollar award; neither party requested a formal hearing.
Ameri-Force later offered a conditional settlement (higher benefits if Rivera waived fee claims); Rivera rejected and Ameri-Force paid amounts consistent with the recommendations.
Rivera sought attorney’s fees under 33 U.S.C. § 928(b). The district director awarded fees based on the August 24 recommendation; the BRB reversed, finding the August 24 recommendation moot in light of the September 7 recommendation. Rivera appealed to the Fifth Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rivera is entitled to attorney’s fees under 33 U.S.C. § 928(b) based on the claims examiner’s August 24, 2016 recommendation	August 24 was a written recommendation disposing central disputes; Ameri-Force refused within 14 days; Rivera procured counsel and obtained an award greater than employer’s post-recommendation posture => fees due	The September 7 supplemental recommendation superseded/mooted the August 24 recommendation; Ameri-Force timely paid after Sept. 7 so § 928(b) not triggered; Aug. 24 lacked a dollar figure and employer sought reconsideration pending medical report (and relied on an employer exam)	Reversed BRB. August 24 constituted a written recommendation disposing central issues and triggered § 928(b). A subsequent recommendation does not nullify the earlier recommendation; the IME exception did not apply. Rivera entitled to fees; case remanded.

Carey v. Ormet Primary Aluminum Corp., 627 F.3d 979 (5th Cir. 2010) (de novo review of BRB legal rulings; attorney-fee framework under § 928(b))
Pool Co. v. Cooper, 274 F.3d 173 (5th Cir. 2001) (standard for reviewing BRB factual findings—substantial evidence)
James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426 (5th Cir. 2000) (substantial-evidence review of BRB decisions)
Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984) (when BRB order is "final" for appeal timing)
Newport News Shipbuilding & Dry Dock Co. v. Dir., Off. of Workers' Comp. Programs, 474 F.3d 109 (4th Cir. 2006) (claims-examiner recommendation satisfies § 928(b) when it resolves a central issue)
FMC Corp. v. Perez, 128 F.3d 908 (5th Cir. 1997) (employer avoids § 928(b) liability by accepting recommendation or tendering payment accepted by claimant)
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (definition of a "final" decision for appellate-review timing)