Revised March 26, 2001

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-60587

STAFTEX STAFFING AND HOUSTON GENERAL INSURANCE COMPANY,

Petitioners,

VERSUS

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR AND RAMIRO LOREDO,

Respondents.

Petition For Review of an Order of the Benefits Review Board

November 1, 2000

ON PETITION FOR REHEARING

(Opinion November 1, 2000, 5th Cir. 2000, ____F.3d____)

Before REAVLEY, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:

Claimant, Ramiro Loredo, seeks rehearing of our order

reversing the Benefits Review Board’s (BRB) affirmance of an award

of attorney’s fees to his counsel. Loredo argues that our opinion is in conflict with an opinion of this court, James J. Flanagan

Stevedores, Inc. v. Gallagher,

(5th Cir. 2000), which

was filed just days before the opinion in our case. Gallagher was

decided under a unique set of facts that we do not find helpful in

this case. However, on reconsideration and reexamination of the

record, we conclude that the ALJ did not err in granting attorney’s

fees to Loredo’s counsel.

Loredo’s employer voluntarily paid Loredo compensation based

on a $490.24 average weekly wage. The employee was satisfied with

his compensation rate and had no reason to raise it as an issue at

the informal conference. The claims examiner, following the

informal conference, recommended that the “parties agree to an

order awarding permanent and total disability benefits effective

July 5, 1995 and continuing, subject to annual adjustment.” The

rate of compensation which was to “continue” is an essential part

of the recommendation and the recommendation specifically

referenced both the average weekly wage of $490.24 and the

compensation rate of $326.83. The employer did not timely accept

the recommendation of the claims examiner, agreed with Loredo’s

statement of the issues to be resolved at the formal hearing and

raised no new issues until shortly before the formal hearing was

scheduled. At that time the employer agreed to the total permanent

disability aspect of the recommendation, but contended for the

first time that the average weekly wage was $108.02.

When the recommendation is viewed in this light, it is clear

2 to us that the employer did not accept the recommendation of the

Department of Labor. The claimant used the services of an attorney

to aid him in the resolution of the controversy over the payment of

his compensation and the formal hearing resulted in a larger award

of compensation. The BRB was therefore entitled to conclude that

§ 928(b) was satisfied in awarding attorney’s fees to Mr. Loredo.

We therefore grant panel rehearing on our previous order

reversing the Benefits Review Board’s award of attorney’s fees and

now affirm the BRB’s award. In all other respects, we deny the

petition for rehearing.1

No member of the panel nor judge in regular active service of

the court having requested that the court be polled on Rehearing En

Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

1 We also withdraw from the original opinion the following sentence: “Moreover, we must resolve all doubts ‘in favor of the employee in accordance with the remedial purposes of the LHWCA.’ Empire United Stevedores v. Gatlin,

(5th Cir. 1991).” and any reference to the “true doubt” rule which was rejected in Director, OWCP v. Greenwich Collieries,

(1994).

3