TOPIC 18

Topic  18.1     Default Payments–Generally

[ED. NOTE: The Following Black Lung case is included since the Black Lung Act draws on the LHWCA procedural provisions. 30 U.S.C. § 932(a).]

Nowlin v. Eastern Associated Coal Corp, 266 F. Supp. 2d 502 (N.D. W. Va. May 13, 2003) [Order on Motion], see also 331 F. Supp. 2d 465 (Aug. 12, 2004).

            In this enforcement issue case, the federal district court addressed the enforceability of awards under both Section 18(a) and Section 21(d). It found that an award order may be enforced under either section. The court noted that while Section 18 requires a supplementary order to declare the amount in default and has an express statute of limitations, a claimant could still utilize Section 21(d) for enforcement. The court noted that while a Ninth Circuit case, Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20 percent penalty under Section 18 is more "logical" and "far better meets the Congressional purpose" than enforcement pursuant to Section 21, it did not expressly foreclose that section as an avenue of recovery for claimants. See also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir. 1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D. Va. 1997).

            The court found that under Section 21, the claimant did not have to secure a supplemental order. Additionally, since Section 21 does not state a statute of limitations time period, the court allowed the adoption of the one used within that state, which happened to be two years.

Topics 18.1     Default Payments––Generally

Millet v. Avondale Industries, (Unreported)(E.D. La. 2003), 2003 WL 548879 (Feb. 24,2003).

            Federal District court sanctioned use of Section 18 and Section 21(d) by a claimant's attorney to recover costs and expenses incurred when the employer first refused to pay the attorney fee which had been confirmed on appeal by the circuit court when the circuit court had also confirmed the compensation order. District Court Judge found that, "The purpose and spirit of the LHWCA is violated when an employer refuses to pay an award of attorney's fees pursuant to a final order and suffers no consequences. That result awards bad behavior and thwarts the purpose of the LHWCA....The fact that Avondale promptly paid Millet upon notice of this lawsuit does not relieve Avondale of responsibility. Millet was forced to incur costs and expenses to secure payment of a final award pursuant to the provisions of the LHWCA, to which he was rightfully entitled. If Millet must bear the cost of enforcement of that final fee award then he cannot receive ‘‘the full value of the fees to which [he is] entitled under the Act.'"

Topic  18.1     Default Payments–Generally

[ED. NOTE: The Following Black Lung case is included since the Black Lung Act draws on the LHWCA procedural provisions.  30 U.S.C. § 932(a).]

Nowlin v. Eastern Associated Coal Corp, 266  F. Supp. 2d 502 (N.D. W. Va.  May 13, 2003) [Order on Motion], see also 331 F. Supp. 2d 465 (Aug. 12, 2004).

            In the enforcement issue case, the federal district court addressed the enforceability of awards under both Section 18(a) and Section 21(d).  It found that an award order may be enforced under either section.  The court noted that while Section 18 requires a supplementary order to declare the amount in default and has an express statute of limitations, a claimant could still utilize Section 21(d) for enforcement.  The court noted that while a Ninth Circuit case, Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20 percent penalty under Section 18 is more “logical” and “far better meets the Congressional purpose” than enforcement pursuant to Section 21, it did not expressly foreclose that section as an avenue of recovery for claimants.  See also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir. 1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D. Va. 1997).   

            The court found that under Section 21, the claimant did not have to secure a supplemental order.  Additionally, since Section 21 does not state a statute of limitations time period, the court allowed the adoption of the one used within that state, which happened to be two years.

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Topic  18.2     Default Payments--Supplemental Order Declaring Default

[ED. NOTE: The Following Black Lung case is included since the Black Lung Act draws on the LHWCA procedural provisions. 30 U.S.C. § 932(a).]

Nowlin v. Eastern Associated Coal Corp, 266 F. Supp. 2d 502 (N.D. W. Va. May 13, 2003) [Order on Motion], see also 331 F. Supp. 2d 465 (Aug. 12, 2004).

            In the enforcement issue case, the federal district court addressed the enforceability of awards under both Section 18(a) and Section 21(d). It found that an award order may be enforced under either section. The court noted that while Section 18 requires a supplementary order to declare the amount in default and has an express statute of limitations, a claimant could still utilize Section 21(d) for enforcement. The court noted that while a Ninth Circuit case, Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20 percent penalty under Section 18 is more "logical" and "far better meets the Congressional purpose" than enforcement pursuant to Section 21, it did not expressly foreclose that section as an avenue of recovery for claimants. See also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir. 1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D. Va. 1997).

            The court found that under Section 21, the claimant did not have to secure a supplemental order. Additionally, since Section 21 does not state a statute of limitations time period, the court allowed the adoption of the one used within that state, which happened to be two years.

Topic  18.2     Default Payments--Supplemental Order Declaring Default

[ED. NOTE: The Following Black Lung case is included since the Black Lung Act draws on the LHWCA procedural provisions.  30 U.S.C. § 932(a).]

Nowlin v. Eastern Associated Coal Corp, 266 F. Supp. 2d 502 (N.D. W. Va.  May 13, 2003) [Order on Motion], see also 331 F. Supp. 2d 465 (Aug. 12, 2004).

            In the enforcement issue case, the federal district court addressed the enforceability of awards under both Section 18(a) and Section 21(d).  It found that an award order may be enforced under either section.  The court noted that while Section 18 requires a supplementary order to declare the amount in default and has an express statute of limitations, a claimant could still utilize Section 21(d) for enforcement.  The court noted that while a Ninth Circuit case, Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381 (9th Cir. 1985), concluded that enforcement of a 20 percent penalty under Section 18 is more “logical” and “far better meets the Congressional purpose” than enforcement pursuant to Section 21, it did not expressly foreclose that section as an avenue of recovery for claimants.  See also, Reid v. Universal Maritime Service Corp., 41 F.3d 200 (4th Cir. 1994); Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868 (W.D. Va. 1997).   

            The court found that under Section 21, the claimant did not have to secure a supplemental order.  Additionally, since Section 21 does not state a statute of limitations time period, the court allowed the adoption of the one used within that state, which happened to be two years.

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