Who Pays Your Defense Base Act Lawyer? How Section 28 Can Shift the Fee to the Carrier

Attorney fees in a Defense Base Act claim are governed by Section 28 of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 928, which applies to overseas contractor claims through 42 U.S.C. § 1651(a). Section 28 does two things. In defined situations it makes the employer or its insurance carrier pay the injured contractor’s attorney, and it requires every fee to be approved before anyone collects it.

A DBA carrier can be ordered to pay Defense Base Act attorney fees when, within 30 days of written notice of the claim from the Department of Labor, it refuses to pay anything on the ground that it owes nothing. If the contractor then wins with a lawyer’s help, the fee is paid in addition to the benefits, not out of them.

Friedman, Rodman & Frank, P.A. represents civilian contractors in Defense Base Act claims against employers and their insurance carriers, wherever the injury happened and wherever the contractor now lives.

When the Carrier Pays Defense Base Act Attorney Fees Under Section 28(a)

A fee-shifting provision is a law that moves the cost of the winning side’s lawyer onto the losing side. Section 28(a) is one. It applies when the carrier denies liability outright and does not pay within the 30-day window, and the contractor later succeeds. The fee is set in the compensation order at a reasonable amount approved by the Department of Labor, the Benefits Review Board, or a court. The carrier pays it directly to the attorney in a lump sum once the order becomes final.

Section 28(d) adds that the carrier may also be charged witness fees and mileage for necessary witnesses. Fees and costs awarded against the carrier “shall not in any respect affect or diminish the compensation payable.” A contractor who wins under Section 28(a) keeps the full benefit award.

Disputes Over Additional Compensation Under Section 28(b)

A DBA claim can also start with the carrier paying benefits voluntarily, without an award, and then disputing how much more is owed. Section 28(b) covers that situation. The Department of Labor holds an informal conference and recommends a resolution in writing. A carrier that rejects the recommendation must, within 14 days, pay or offer in writing whatever additional amount it believes is owed.

If the contractor turns down that amount, uses a lawyer, and is later awarded more, the carrier pays a fee based only on the difference between the award and what it paid or offered. There is an exception for disputes over the degree or length of disability. It applies where the carrier offers to have the contractor evaluated by physicians the Secretary of Labor employs or selects and to pay based on that report. Outside these rules, the statute says a claim for legal services “shall not be assessed against the employer or carrier.”

Fee Approval and the Lien on Benefits

Section 28(c) requires every fee for a claimant’s attorney to be approved. When the obligation to pay falls on the contractor rather than the carrier, the approved fee can be made a lien on the compensation due under an award. The order approving the fee sets the amount and how it is paid.

Section 28(e) makes it a federal crime to take a fee for representing a claimant without that approval, or to make a business of soliciting these claims. Each offense carries a fine of up to $1,000, up to one year in prison, or both. A percentage agreement signed with anyone, lawyer or not, still has to go through that approval before money changes hands.

Questions About Fees Before You Hire a Lawyer

Whether a fee would come from the carrier or from an approved lien on your award depends on how the carrier has handled the claim so far. The denial letter and the payment history usually answer that question. Friedman, Rodman & Frank, P.A. handles Defense Base Act claims for civilian contractors injured on overseas government contracts. Call our office at (877) 448-8585 or send us a message and we will go through your claim with you at no charge.