Here is the short answer. In a Defense Base Act (DBA) claim, the insurance carrier can be ordered to pay your attorney fee on top of your benefits. It never comes out of your own money. That does not happen in every case. Federal law lists the times the carrier pays, and outside those the fee is charged to you. Either way the fee is hourly, and nobody collects a cent until a federal official approves it.
I am Mark Hirsch. I handle Defense Base Act claims for civilian contractors hurt overseas, plus Longshore Act claims nationwide. Almost every contractor asks about the fee before anything else. The paychecks stopped weeks ago, and a lawyer sounds like one more bill. By the end you will know when the carrier has to pay your fee and when you pay it instead. You will also know how the hourly amount gets set, and what the Department of Labor checks before it signs off.
Key takeaways
- The fee is hourly. A percentage of your benefits is not how this system works, and a fee contract does not control the number.
- There are two situations where the carrier pays your fee. Both turn on the carrier refusing something first.
- A fee charged to the carrier cannot reduce your compensation by law.
- Every fee has to be approved by a federal official, backed by hours and a billing rate, before anybody is paid.
- Taking a fee that was never approved is a federal crime, not just a rule violation.
Who Pays Attorney Fees in a Defense Base Act Claim?
The Defense Base Act borrows its rules from the Longshore and Harbor Workers' Compensation Act. So the fee section for your case is 33 U.S.C. section 928. It does something a normal injury case never does. It can order the other side to pay your lawyer.
That is worth sitting with for a second. In a car crash case your lawyer is paid out of your settlement. Every dollar of fee is a dollar you do not take home. Here the fee can sit on top of your benefits instead of inside them. Section 928(d) says it plainly. A fee awarded against an employer or carrier "shall not in any respect affect or diminish the compensation payable under this chapter."
The catch is that the carrier does not pay in every case. It pays in two.
The 2 Situations Where the Carrier Pays Your Fee
Both of them start the same way. The carrier has to refuse something first, and the clock has to run out.
- The carrier pays nothing within 30 days. Section 928(a) sets this one up. The district office sends the carrier written notice of your claim, and the carrier has thirty days. If it declines to pay anything in that window on the ground that it is not liable, and you then hire an attorney and win, the law awards a reasonable fee against the carrier. Your attorney is paid directly, in a lump sum, once the compensation order becomes final. This is the common route in a denied claim.
- The carrier pays some, then fights about the rest. Section 928(b) covers a different case. Benefits started without an award, and then an argument breaks out over how much more you are owed. There is an informal conference, and the district director writes up what he or she thinks should happen. If the carrier refuses that recommendation within 14 days, it has to tell you in writing what it thinks you are owed. If you turn that down, hire an attorney, and end up with more than the carrier offered, the fee is awarded on top. There is a limit worth knowing. That fee is calculated "solely upon the difference between the amount awarded and the amount tendered or paid." It is built on what your lawyer actually gained you, not on the whole claim.
Miss both routes and the same statute closes the door in one sentence. "In all other cases any claim for legal services shall not be assessed against the employer or carrier." Most articles on this topic leave that part out. It is also why the first 30 days of a claim decide more about your fee than anything you sign.
Why the Fee Is Hourly and Not a Percentage
Contractors often assume this works like a personal injury case, where a firm takes a third. It does not. The reason is a written rule, not a custom.
Under 20 CFR section 702.132, anyone who wants a fee has to apply for it. The request has to carry a full statement of the work done. That statement has to describe the work "with particularity." It has to name the professional status of every person who touched the file, whether attorney, paralegal or law clerk. For each one it gives the normal billing rate and the hours spent on each category of work.
Then comes the line that settles the whole question. "No contract pertaining to the amount of a fee shall be recognized." So a signed agreement promising someone a percentage of your benefits does not bind the Department of Labor. It does not set the fee either. Only the approval does.
People ask what the hourly rate is. There is no published number. The rate is whatever the official signs off on as fair for that attorney in that market. Anyone who quotes you a firm figure before a case is filed is guessing.
What Gets Checked Before a Fee Is Approved
The application goes to whoever has the case: the district director, a judge, the Benefits Review Board, or a court. The fee has to be "reasonably commensurate with the necessary work done." The reviewer weighs three things. How good the work was. How hard the legal issues were. How much you were awarded. If you are the one paying, your own money situation gets weighed too.
Two useful things fall out of that. Hours get cut when the work does not back them up, so the timesheet is a real document. And you are sent a copy of the fee application, so you can see what is being asked for and object to it.
Taking an Unapproved Fee Is a Crime
This one surprises people. It is also there to protect you. Section 928(e) covers two things. Taking a fee for a claimant's case without approval. And making a business of chasing this work. On conviction either one carries a fine of up to $1,000, up to a year in jail, or both.
So if someone offers to handle your Defense Base Act claim for a cut of the money, paid on the side, that is not an aggressive fee arrangement. It is an offense under the statute that governs your claim.
How This Compares With a State or Injury Case
Had a claim in a state system before? The difference matters, because it changes who pays for the fight.
In a Florida injury case the fee is a share of what you win, and it comes out of your money. The Florida Bar caps it, and I go through those percentages in how much a personal injury lawyer costs in Florida. Florida workers' compensation has its own sliding scale under section 440.34, Florida Statutes. A judge has to approve that fee too.
The federal system is the one where a carrier that refuses to pay can end up funding the lawyer who makes it pay. That is a real difference in leverage. It is also the main reason a Defense Base Act claim belongs with someone who works in the federal system, not a state workers' compensation practice. Our post on the differences between workers' compensation and the Defense Base Act covers the rest of what changes.
Frequently Asked Questions
Q: Do I pay anything up front on a Defense Base Act claim?
A: No. Nothing is owed at the start. No fee is collected by anyone until it has been applied for and approved, and the first meeting costs nothing.
Q: Who approves the fee if my case goes up on appeal?
A: Whoever the work was done in front of. Section 928(c) lets the Benefits Review Board or a reviewing court approve a fee for the work done before it, separately from what the district director already approved below. So a case that moves up the chain can carry more than one fee application.
Q: What happens to the fee if my claim settles?
A: It still has to be applied for and approved, and it is still measured against the work done. Who ends up paying depends on whether your case went through one of the two routes in section 928. Ask how your own settlement is set up before you sign it.
Q: Can I object to my own attorney's fee request?
A: Yes. The fee application is sent to the other parties, and the official reviewing it can cut hours that were not needed. If the fee would be charged to you, your own money situation is part of what gets weighed.
Q: Does the Defense Base Act cover an illness that showed up years later?
A: It can. A slow-building illness is handled as an occupational disease, and the filing clock runs from the day you learned it was tied to your work. I cover how that plays out in burn pit compensation for contractors.
Ask About the Fee on the First Call
The fee question has a real answer here, and a lawyer should be able to walk you through it in a few minutes. Our team at Templer & Hirsch, Injury Lawyers handles Defense Base Act and Longshore claims nationwide, and there is no fee unless we recover. Call 305-937-2700 or request a free case evaluation.This is general information, not legal advice; consult an attorney about your situation.