Case: 18-60099      Document: 00514673395         Page: 1    Date Filed: 10/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-60099                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                      October 9, 2018

LEROY SMITH, (deceased),                                               Lyle W. Cayce
                                                                            Clerk
              Petitioner

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; NICOR NATIONAL;
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PENNSYLVANIA,

              Respondents




                       Petition for Review of an Order of the
                               Benefits Review Board
                                  BRB No. 17-0268


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       This is an appeal from a Benefits Review Board decision denying
attorney’s fees under two provisions of the Longshore and Harbor Workers’
Compensation Act. 33 U.S.C. §§ 928(a), (b). We review Board decisions for



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-60099    Document: 00514673395     Page: 2   Date Filed: 10/09/2018



                                 No. 18-60099
substantial evidence and errors of law. See Conoco, Inc. v. Dir., Office of
Worker’s Comp. Programs, U.S. Dep’t of Labor, 

, 687 (5th Cir.
1999) (quoting Ingalls Shipbuilding, Inc. v. Director, OWCP, 

, 165
(5th Cir. 1993)).
      First, § 928(b) requires that claimants show: “(1) an informal conference,
(2) a written recommendation from the deputy or Board, (3) the employer’s
refusal to adopt the written recommendation, and (4) the employee’s procuring
of the services of a lawyer to achieve a greater award than what the employer
was willing to pay after the written recommendation.” Carey v. Ormet Primary
Aluminum Corp., 

, 982 (5th Cir. 2010) (quoting Va. Int’l
Terminals, Inc. v. Edwards, 

, 318 (4th Cir. 2005)). Failing to meet
even one element is fatal to Petitioner’s claim. See, e.g., FMC Corp. v. Perez,

, 910 (5th Cir. 1997) (“An award of attorney’s fees under Section
28(b) is appropriate only if the dispute has been the subject of an informal
conference with the Department of Labor.”).
      Here, the Board concluded that there was no informal conference and
therefore Petitioner could not prevail. Moreover, even assuming arguendo that
Petitioner’s communications were an informal conference, Petitioner never
received a written recommendation from the deputy or Board. We agree.
      Petitioner does not challenge the factual findings, except to the extent
that “correspondence between the parties”—including a request for an
informal conference—“serves as the functional equivalent of an informal
conference.” A Department of Labor regulation allows “[s]ome cases [to] be
handled by written correspondence,” 20 C.F.R. § 702.311, but there is no
evidence that such an informal conference occurred here. What’s more, there
is no evidence—and Petitioner does not assert—that the district director
offered a recommendation. These deficiencies are disqualifying. See Pool Co.
v. Cooper, 

, 186 (5th Cir. 2001) (“[N]o informal conference with the
                                       2
    Case: 18-60099    Document: 00514673395     Page: 3   Date Filed: 10/09/2018



                                 No. 18-60099
Department of Labor ever took place. Under the law of our Circuit, that fact
poses an absolute bar to an award of attorney’s fees under § 28(b).”); 

.
      Second, § 928(a) “incorporate[s] a condition precedent, namely that the
employer must contest liability before section 928(a) authorizes fee-shifting.”
Andrepont v. Murphy Expl. & Prod. Co., 

, 418 (5th Cir. 2009)
(citing Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor v. Black
Diamond Coal Mining Co., 

, 953 (5th Cir. 1979)). Here, the Board
concluded that the employer “voluntarily paid compensation to claimant
within 30 days of receipt of the claim,” and thus did not “decline to pay any
compensation . . . on the ground that there is no liability for compensation.” 33
U.S.C. § 928(a). Petitioner does not contest this finding. We agree with the
Board. Andrepont, 

, 419.
      The petition for review of the judgment of the Benefits Review Board is
DENIED.




                                       3