Sixth Circuit Weighs in on the Circuit Split Re Requirements for Fee Liability Under 33 U.S.C. § 928(b)

Per Pittsburgh & Conneaut Dock Co. v. Director, Office of Workers' Compensation Programs, 456 F.3d 616 (6th Cir. Aug. 2, 2006):

The Fifth Circuit has consistently required that each of the requirements set forth in subsection (b) is met before an employer incurs liability for attorney's fees. Pool Co. v. Cooper, 274 F.3d 173, 186 (5th Cir.2001); Staftex Staffing v. OWCP, 237 F.3d 404, 408-09 (5th Cir.2000); FMC Corp. v. Perez, 128 F.3d 908, 910 (5th Cir.1997). The Ninth Circuit has routinely held employers liable for attorney's fees under subsection (b) even when the literal terms of the statute have not been met. Therefore, fee liability is imposed where these general circumstances are present even if all of the specific events listed in subsection (b) have not occurred. Nat'l Steel & Shipbuilding Co. v. OWCP, 606 F.2d 875, 882 (9th Cir.1979).

The Fourth and Fifth Circuits have rejected the approach taken by the Ninth Circuit and have strictly enforced the specific terms of subsection (b). They have emphasized that the requirements set forth in the plain language of the statute must be met. We adopt the approach taken by the Fourth and Fifth Circuits. The language of subsection (b) plainly states that in order for fees to be assessed under its terms there must be a written recommendation containing a suggested disposition of the controversy.