You Won the Case. Now You Need to Get Paid.
Your client was injured on a military base in Afghanistan. The carrier denied the claim, you fought it through an OALJ hearing, and the ALJ ruled in your favor. Total disability benefits, medical coverage, the whole package. Now comes the part that trips up even experienced DBA attorneys: the fee petition.
Attorney fees in Defense Base Act cases are not automatic. Unlike contingency fee arrangements in state personal injury cases, DBA fees require approval from an administrative law judge or the Benefits Review Board. The governing statute, Section 28 of the Longshore and Harbor Workers' Compensation Act, sets out the framework. Get the petition wrong, and you leave money on the table or face a drawn-out challenge from the carrier.
ClaimTrove's database of over 5,000 OALJ decisions includes hundreds of fee petition rulings. The patterns are clear: attorneys who document thoroughly and justify their rates win full approvals. Those who submit vague time entries and inflated hours face reductions that can cut their fees by 30% or more.
What Is the Difference Between Section 28(a) and Section 28(b) Fees?
This distinction determines who writes the check. Section 28(a) applies when the carrier declined to pay benefits voluntarily and the claimant prevailed. In that scenario, the carrier pays your fee on top of the benefits awarded. Section 28(b) applies when the claimant pays your fee from their award, subject to ALJ approval for reasonableness.
The practical difference is significant. Under Section 28(a), the carrier has every incentive to attack your petition aggressively. Your fee comes out of their pocket, and they will scrutinize every hour. Under Section 28(b), the ALJ's primary concern is protecting the claimant from an unreasonable fee that diminishes their recovery.
Most contested DBA cases that proceed through the full DBA claims process result in Section 28(a) fee situations. The carrier denied or underpaid, the claimant hired an attorney, and the attorney secured benefits the carrier refused to provide voluntarily. This is where the real fee petition battles happen.
Know which section applies before you draft the petition. The framing matters. A Section 28(a) petition should emphasize the carrier's resistance and the effort required to overcome it. A Section 28(b) petition should focus on the value your representation delivered to the claimant.
What Factors Do ALJs Weigh When Reviewing Fee Petitions?
ALJs in LHWCA proceedings apply a multi-factor test derived from the Hensley v. Eckerhart framework. The core factors are consistent across DBA fee petition rulings.
Complexity of the case. A straightforward temporary disability claim with no medical dispute warrants fewer hours than a contested permanent total disability case with competing IME opinions. DBA cases carry inherent complexity: overseas injuries, multi-jurisdictional employment arrangements, and contractors who change carriers every few years. Document why your case was complex, not just that it was.
Time and labor required. This is where your time records do the heavy lifting. ALJs compare the hours you billed against what a competent attorney would reasonably need for a case of similar complexity. Excessive hours on routine tasks signal padding. Inadequate hours on critical tasks signal incompetence. Neither helps.
Hourly rate reasonableness. The ALJ compares your requested rate against the prevailing market rate in your geographic area for attorneys with similar experience handling similar cases. DBA work is specialized, and that specialization justifies rates above general practice levels. But you need evidence. Fee affidavits from other DBA practitioners, bar association rate surveys, and prior ALJ approvals of your rate all support your number. Understanding how ALJs approach DBA case decisions helps you anticipate what documentation they expect.
Results achieved. An attorney who secures permanent total disability benefits and a substantial medical award has a stronger fee petition than one who obtained a narrow ruling on a single disputed issue. The result justifies the effort. Frame your petition around outcomes.
What Are the Most Common Fee Petition Mistakes?
The fastest way to get your fees reduced is to submit inadequate time records. ALJs have consistently penalized three specific deficiencies.
Block billing. Entries like "4.5 hours - research, draft motion, review medical records, phone call with client" are a red flag. The ALJ cannot evaluate the reasonableness of time spent on each task when they are lumped together. Break every entry into discrete tasks with individual time allocations.
Vague descriptions. "Research" tells the ALJ nothing. "Researched BRB precedent on Section 10(c) average weekly wage calculation for dual-employment overseas contractors" tells them exactly what you did and why. Specificity protects you from carrier objections and judicial skepticism.
Excessive hours on administrative tasks. Billing two hours to review and organize a file, or 45 minutes to draft a routine cover letter, invites reduction. ALJs distinguish between substantive legal work and clerical tasks. If a paralegal could have done it, explain why an attorney handled it or accept a lower rate for that entry.
Another frequent mistake: failing to address the carrier's objections preemptively. Carriers in DBA cases file detailed oppositions to fee petitions. They will challenge specific entries, argue your rate exceeds the market, and claim you spent excessive time on issues where you did not prevail. If you know the BRB decisions that shape fee petition standards, you can structure your petition to withstand those attacks from the start.
How Do DBA Cases Justify Higher Rates and More Hours?
DBA cases are not garden-variety workers' compensation claims. Several features unique to DBA practice justify both higher hourly rates and more billable hours than domestic LHWCA cases.
Specialized knowledge requirement. DBA practice sits at the intersection of federal workers' compensation law, government contracting, international employment law, and military operations. Few attorneys practice in this space. That scarcity has value. ALJs recognize that a DBA specialist's rate will exceed the general market rate for workers' compensation attorneys, provided you can document your specialized experience.
Overseas complexity. Gathering evidence from Afghanistan, Iraq, or other conflict zones takes more time than collecting records from a domestic employer. Medical records may be in foreign languages. Witnesses may be deployed overseas or no longer employed by the contractor. Depositions may require international coordination. Each of these factors adds legitimate billable hours that the ALJ should approve.
Carrier identification challenges. DBA employers frequently change insurance carriers. A claimant injured in 2012 may file a claim in 2016, and the employer's carrier at the time of injury may differ from the current carrier. Tracing the correct responsible carrier through the carrier dispute resolution process is substantive legal work that belongs in your fee petition.
Multi-year case duration. DBA cases routinely span three to five years from filing through BRB appeal. The cumulative hours reflect the actual duration of the representation. When a carrier objects that total hours seem high, your response should break the hours down by phase, showing that the per-year effort was reasonable.
How Should You Structure the Fee Petition Itself?
A well-structured fee petition has four components that ALJs expect to see.
A declaration or affidavit. State your qualifications, years of experience, specialization in DBA or LHWCA practice, and the basis for your hourly rate. Attach supporting documentation: prior fee approvals at or near your requested rate, fee affidavits from comparable practitioners, and any relevant rate surveys.
A case summary. Briefly describe the procedural history, the issues in dispute, the carrier's defenses, and the outcome. This gives the ALJ context for evaluating whether your hours were reasonable given the scope of the case. Two to three paragraphs is sufficient.
Itemized time records. This is the core of the petition. Every entry should include the date, a specific description of the task, and the time spent in increments no larger than one-tenth of an hour. Organize entries chronologically. If you used different billing rates for different timeframes (because your rate increased during the multi-year case), note the rate change and when it took effect.
A fee calculation. State the total hours, the applicable rate or rates, and the total fee requested. If you are seeking costs in addition to fees, itemize them separately with receipts. Travel costs, deposition transcript fees, and expert witness fees are commonly recoverable, but each requires documentation.
One practical tip that experienced DBA attorneys follow: file the fee petition promptly after the case concludes. Delay invites scrutiny. An ALJ reviewing a petition filed two years after a DBA settlement will question why you waited and whether your records are reliable.
How Can You Strengthen Your Position Before Filing?
The best fee petition defense starts on day one of the case. Contemporaneous time records are far more credible than reconstructed entries. If you are not tracking time as you go, start now.
Build a rate justification file that you update annually. Collect fee petition orders from other DBA cases that approved rates comparable to yours. Track your own fee petition history. If ALJs have approved your rate three times previously, cite those orders in every subsequent petition.
When the case involves unusual complexity, document it in real time. Save emails showing the difficulty of obtaining overseas records. Note when witnesses required translation services. Record the hours spent untangling employer alias issues or identifying the responsible carrier through multiple corporate name changes. These contemporaneous records are your evidence that the hours were necessary, not padded.
ClaimTrove's OALJ decision database includes fee petition rulings that reveal approved rates and hours across hundreds of DBA cases. Before you finalize your petition, researching how ALJs in your jurisdiction have ruled on comparable cases gives you a data-driven benchmark for your rate and hours. Run a ClaimTrove investigation to access fee petition precedent and build a petition that stands up to carrier challenge.