14 Jun 2017

Update from the Benefits Review Board (June 2017)

Update from the Benefits Review Board

By Karen Koenig, Associate General Counsel, Longshore Division

BRB Statistical Update

The Board began Fiscal Year 2017 in October 2016 with 97 pending Longshore/DBA appeals. During the last fiscal year, which ended September 30, 2016, the Board received 152 appeals in cases under the Longshore and Defense Base Acts, 7 fewer than the year before. The Board issued 163 decisions, 17 fewer than the year before; orders on reconsideration were issued in 21 cases. In Fiscal Year 2016, the Courts of Appeals issued decisions or orders in 31 of the Board’s Longshore/DBA decisions, and the Board received an affirmative disposition in 84 percent of the cases.

As of June 1, 2017, the Board has approximately 110 pending Longshore appeals, a figure which includes 29 appeals under the DBA. This fiscal year to date, the Board has received 120 Longshore/DBA appeals and issued 117 decisions or orders. In addition, the Board has issued orders on reconsideration in 10 cases. The Board has received 17 decisions from appellate courts, all of them favorable. The Board also has approximately 435 pending Black Lung appeals.

Attorney’s Fee Petitions

Earlier this year, the Clerk of the Appellate Boards issued the following notice to attorneys who practice before the Board:

NOTICE

FOR ALL LITIGANTS BEFORE THE BENEFITS REVIEW BOARD

In order to ensure the prompt processing of all attorney fee petitions, the Board recently reviewed its policy with respect to the consideration of untimely filed fee petitions and responses. See 20 C.F.R. §§802.203(c); 802.219(e). Effective March 1, 2017, all attorney fee petitions and responses thereto shall be filed within the timeframes set forth in the aforementioned regulations. The Board will not consider an untimely fee petition or response thereto, unless it is accompanied by a request to accept the untimely filing that sets forth the reasons for the request. See 20 C.F.R. §802.217(e). The Board will evaluate each request on a case by case basis.

The Notice also appears on the Board’s website. The Notice was issued in response to fee petitions that were filed significantly after the last decision on the case. In addition, it is intended to remind employers/carriers that they have 10 days to respond to a fee petition.

The text of the applicable regulation at 20 C.F.R. §802.203(c), (g) is:

(c) Within 60 days of the issuance of a decision or non-interlocutory order by the Board, counsel or, where appropriate, representative for any claimant who has prevailed on appeal before the Board may file an application with the Board for a fee. Where the Board remands the case and the administrative law judge on remand issues an award, a fee petition may be filed within 60 days of the decision on remand. In the event that a claimant who was unsuccessful before the Board prevails on appeal to the court of appeals, his or her representative may within 60 days of issuance of the court’s judgment file a fee application with the Board for services performed before the Board.

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(g) A fee application shall be served on all other parties and accompanied by a certificate of service. The Board will not take action on the fee application until such service is effected. Any party may respond to the application within 10 days of receipt of the application. The response shall be filed with the Board and served on all other parties.

Electronic Filing

All practitioners are encouraged to use the Board’s e-filing system, which can be accessed from the Board’s website, https://www.dol.gov/brb/welcome.html. At present, this system can be used only to file with the Board. Service on the other parties must still be effected by regular mail. Counsel are reminded not to mail copies to the Board if they have filed a document electronically. The IT staff of the Appellate Boards continues to seek ways to make this system more “user friendly.” In addition, we are actively engaged with the OWCP and the OALJ on ways to increase electronic records capability.