PITTSBURGH & CONNEAUT DOCK CO., et al., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States, et al., Respondents, 456 F.3d 616

McKEAGUE, J., delivered the opinion of the court in which, POLSTER, D. J., joined. MOORE, J. (pp. 629-35), delivered a separate opinion concurring in part and dissenting in part. OPINION DAVID W. McKEAGUE, Circuit Judge. This case arises out of a claim for worker’s compensation benefits under the Longshore and Harbor Workers’ Compensation Act (“Longshore Act”). 33 U.S.C. § 901, et seq. Thomas Bordeaux was injured in the course and scope of his employment and his employer began voluntarily paying him temporary disability benefits. A dispute later developed over whether Bordeaux’s disability was permanent.

A formal hearing was held before an Administrative Law Judge (“ALJ”) who determined that both Bordeaux’s physical and cognitive disabilities were permanent and total. Bordeaux’s employer, Pittsburgh & Conneaut Dock Co. (“P & C Dock”) appealed the determination of permanency with respect to Bordeaux’s cognitive disability to the Benefits Review Board (“BRB”). P & C Dock also appealed the ALJ’s decisions to deny a motion to compel filed by P & C Dock and to require P & C Dock to pay Bordeaux’s attorney’s fees.

The BRB affirmed the ALJ on all points, although it affirmed the award of attorney’s fees on an alternate basis. P & C Dock filed a timely notice of appeal. For the reasons set forth below, we affirm the determinations on permanency and the motion to compel, but reverse the assessment of liability for attorney’s fees. I. BACKGROUND Thomas Bordeaux began working at P & C Dock in 1997. He worked as a structural welder initially and then as a pipe fitter. Bordeaux was injured on September 12, 2000.

While he was working in a catch basin, a fifty-pound sandbag fell into the pit and struck him on the base of his head and neck, missing his hard hat. Bordeaux estimated that the sandbag fell approximately twelve to fourteen feet before hitting him. Following treatment at the emergency room, Bordeaux was released. He returned to the hospital the following day because he was having difficulty formulating any kind of sentence and was suffering extreme headaches. After his visit to the emergency room, Bordeaux was treated for a right wrist fracture and underwent extensive therapy for his neck and wrist.

Bordeaux testified that two to three months following his accident he continued to have episodes of numbness and tingling in his head, occasionally leading him to become dizzy and pass out. Bordeaux also indicated he was having difficulty with focusing and his attention span. Bordeaux underwent extensive medical treatment for both his neck and wrist injuries and his cognitive problems. Throughout 2000, 2001, and into 2002 he attended numerous physical therapy sessions before being discharged when his progress reached a plateau. At the time of the formal hearing, he continued to treat with Dr.

Rematullah, his primary treating physician. Bordeaux testified that he was still suffering from stiffness and pain in his neck and he would still get headaches. Dr. Rematullah testified that maximum medical improvement for Bordeaux’s head and neck injuries was reached on August 20, 2002. Bordeaux also attended numerous speech therapy sessions. The speech therapy was in the form of cognitive therapy which was designed to aid him in his day-to-day activities such as remembering people’s names, numbers and appointments.

Therapy was also designed to help him read due to complaints that he had been unable to concentrate for more than ten minutes. Bordeaux indicated that the speech sessions were beneficial and he was able to increase his concentration time from ten to twenty minutes. Bordeaux’s wife stated that prior to his accident in September of 2000, Bordeaux was in good shape and had no problems with his memory. The day following his accident she noticed that he was a little slow with his speech, and he indicated that he was having trouble getting his thoughts together. Mrs.

Bordeaux also noted that Bordeaux seemed somewhat confused following his accident and was not able to focus on what was going on around him. Bordeaux’s speech and focus steadily improved for six to eight months. After that, she believed that his progress plateaued. She believed that he continued to have memory problems and problems focusing. In May of 2001, Bordeaux began taking Zoloft, an antidepressant medication, at the suggestion of psychologist Dr. Schwa-benbauer. The prescription for Zoloft was discontinued approximately a month later when Bordeaux presented to his family physician, Dr.

Choi, with unusual symptoms including cold sweats and elevated blood pressure. Bordeaux’s medical records show that he subsequently was prescribed, and demonstrated an intolerance for, several other antidepressant medications including Nortriptoline, Depakote, Elavil, and Doxepin. At the formal hearing, deposition testimony from three doctors was submitted which addressed the state of Bordeaux’s cognitive limitations. Dr.

Schwabenbauer pointed out that Bordeaux was well beyond the six to twelve month primary recovery period for head injuries and opined that his cognitive limitations had reached maximum medical improvement. The doctor also indicated that further individual psychotherapy and antidepressant therapy could assist Bordeaux in dealing with the “emotional residuals” of his head injury although they would not enable any further recovery in the area of cognitive function. Dr.

Schwabenbauer acknowledged that the further therapy he was suggesting should help Bordeaux with his anxiety and depression which could, in turn, have an impact on whether he could return to work. The doctor stated that he had no way to estimate the likelihood that Bordeaux would see beneficial results from the suggested therapy. When asked whether the chance was better than a coin flip, he responded that it was “[pjrobably better than a coin flip, but it could be very difficult to predict someone’s response to treatment in advance.” Dr.

McCue, a neuropsychologist, examined Bordeaux in January and February of 2003. While he initially stated that Bordeaux had not yet reached maximum psychological improvement, later in his deposition he stated that the cognitive limitations Bordeaux was suffering were permanent and that he had reached maximum medical improvement. Dr. McCue testified that a course of psychotherapy (including antidepressant medication), cognitive rehabilitation, and vocational rehabilitation had a very good chance of enabling Bordeaux to return to work. Dr.

McCue acknowledged that he was making his suggestions without being aware of whether any of those treatments had already been employed. Since he was not familiar with the treatment Bordeaux had previously undergone, Dr. McCue could not determine whether Bordeaux had already received some or all of the types of treatment he was recommending. Bordeaux’s treating neurologist, Dr. Lyons, treated Bordeaux for his head injury, not for any underlying psychological condition. When asked whether she agreed with the recommendations for additional psychotherapy made by Drs. Schwa-benbauer and McCue., Dr.

Lyons replied that she “was in no position to disagree.” She went on to opine that the proposed treatment would not treat the underlying cognitive condition or significantly improve Bordeaux’s degree of cognitive limitation. As to Bordeaux’s ability to return to work after undergoing the proposed treatment, Dr. Lyons opined that there was a twenty percent chance that it would help him return to work and an eighty percent chance that it would help him feel better. Dr.

Lyons further testified that returning Bordeaux to work by relieving his symptoms of anxiety and depression was “worth trying,” but she commented that, “I don’t think it is going to happen.” On January 21, 2004, the ALJ entered an order awarding benefits under the Longshore Act. Following an extensive review of the evidence, the ALJ awarded permanent and total disability benefits. He found August 20, 2002 to be the date Bordeaux became permanently and totally disabled. Temporary total disability was awarded for the preceding period. Medical benefits were also awarded.

While the matter had been pending before the ALJ, P & C Dock had requested the ALJ to compel Bordeaux to participate in the psychotherapy which had been recommended. The ALJ refused this request in the order awarding benefits. In a supplemental proceeding, the ALJ ordered P & C Dock to pay Bordeaux’s attorney’s fees pursuant to 33 U.S.C. § 928(a). P & C Dock appealed the decision awarding compensation and denying the motion to compel and the award of attorney’s fees to the Benefits Review Board (“BRB”). The BRB affirmed the decision of the ALJ that Bordeaux was permanently and totally disabled.

The BRB also upheld the refusal of the ALJ to direct Bordeaux to pursue the prescribed psychotherapy. Next, the BRB upheld the award of attorney’s fees. However, it found that the fees should not have been awarded under § 928(a), but were properly awarded under § 928(b). Finally, the BRB awarded fees to Bordeaux’s counsel for services rendered before the BRB. P & C Dock timely appealed all of the BRB’s determinations. II. ANALYSIS A. Standard of Review This court reviews ALJ and BRB decisions on a limited basis. Morehead Ma rine Services, Inc. v. Washnock, 135 F.3d 366, 370 (6th Cir.1998).

The decision of an ALJ is reviewed to determine whether it is supported by substantial evidence and consistent with applicable law. See O’Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965); Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230-31 (6th Cir.1994). The BRB’s legal conclusions are reviewed de novo, and this court reviews the record independently to determine if the BRB properly ruled on whether the ALJ’s findings are supported by substantial evidence. Paducah Marine Ways v. Thompson, 82 F.3d 130, 133 (6th Cir.1996); Brown v.

ITT/Continental Baking Co., 921 F.2d 289, 293 (D.C.Cir.1990). “When the question is whether the ALJ reached the correct result after weighing conflicting medical evidence, our scope of review ... is exceedingly narrow.” Worrell, 27 F.3d at 230-31. “Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brainard v.

Secretary of Health and Human Servs., 889 F.2d 679, 681 (6th Cir.1989); see also Paducah Marine Ways, 82 F.3d at 133. “The record must be reviewed as a whole, including whatever in the record fairly detracts from its weight.” Paducah Marine Ways, 82 F.3d at 133 (quoting Mullen v. Bowen, 800 F.2d 535, 545-46 (6th Cir.1986) (en banc)). B. Permanent Disability After the formal hearing, the ALJ found that Bordeaux was permanently and totally disabled. P & C Dock appealed this determination to the BRB which affirmed the ALJ’s determination.

P & C Dock acknowledges that the ALJ correctly determined that Bordeaux’s physical injuries had reached maximum medical improvement, but argues that his cognitive impairment was temporary because several experts opined that Bordeaux would benefit from additional psychotherapy. The ALJ’s determination that Bordeaux’s disability was permanent is based on substantial evidence and consistent with applicable law. There are two separate tests for determining whether and when a disability has become permanent under the Long-shore Act. E.g., Eckley v. Fibrex & Shipping Co., 21 BRBS 120, 122-23 (1988).

Under the first test a residual disability is considered permanent when an employee’s condition reaches the point of maximum medical improvement. James v. Pate Stevedoring Co., 22 BRBS 271, 274 (1989); Phillips v. Marine Concrete Structures, 21 BRBS 233, 235 (1988). Under the second test, even if a person has not reached maximum medical improvement, his or her disability is still considered permanent if it “has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.” Watson v.

Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir.1968). The Watson test allows for a determination of permanency even when the disability is not “pronounced medically incurable.” Id. P & C Dock argues that it was error for the ALJ to find that Bordeaux’s cognitive impairment was permanent because Drs. Schwabenbauer, McCue, and Lyons opined that there was a possibility that Bordeaux’s cognitive impairment would improve in the future with additional psychotherapy and antidepressant medication. Specifically, P & C Dock points out that Dr.

Schwabenbauer testified that the chances Bordeaux would benefit from additional psychotherapy were “probably better than a coin flip, but it could be very difficult to predict someone’s response to treatment in advance.” Dr. Lyons opined that there was a twenty percent chance psychotherapy would help Bordeaux return to work and an eighty percent chance it would help him feel better. According to P & C Dock, this medical evidence that there was a possibility of improvement precludes a finding that Bordeaux’s cognitive disability had reached maximum medical improvement.

P & C Dock’s argument addresses the first test for disability,- but ignores the second. The entirety of its argument -is based on the premise that the possibility of improvement in the future necessarily precludes a finding of permanency. The case law is replete with statements to the contrary. Watson, 400 F.2d at 654 (“[T]he determination that a disability is temporary rather than permanent need not be reached merely because the medical prognosis is that the employee is likely at some indefinite future date to get better and to be able to return to work.”); Air America, Inc. v.

OWCP, 597 F.2d 773, 781 (1st Cir.1979) (“To be considered permanent, a disability need not be eternal or everlasting.”); Mills v. Marine Repair Service, 21 BRBS 115 (1988) (holding that where medical evidence “established that the employee’s condition was of lasting and indefinite duration[,] the prognosis that the employee’s condition may have improved in the future does not preclude a finding of permanency.”); Walsh v. Vappi Construc.

Co., 13 BRBS 442, 445 (1981) (“A finding of permanency is not precluded by a medical prognosis that the employee is likely to get better at some future date and to be able to return to work.”); Meecke v. I.S.O. Personnel Support Dept., 10 BRBS 670, 675-76 (1979) (“[T]he determination that one has not sustained permanent disability may not be based on a medical prognosis that the claimant is likely at some indefinite future date to get better.”); White v. Exxon Co., 9 BRBS 138, 142 (1978) (“[T]he possibility of favorable change does not foreclose a finding of permanent disability.”).

Where the Watson test is met, a disability is permanent notwithstanding a medical prognosis which includes the possibility of the employee’s condition improving at some future date. There is substantial evidence in the record to support the ALJ’s conclusion that Bordeaux’s cognitive disability was permanent under the Watson test. Dr. Schwa-benbauer testified that six to twelve months was the primary recovery period for a head injury such as the one Bordeaux suffered. The ALJ pointed out that Bordeaux’s cognitive limitations had lasted for more than a year and a half beyond the primary recovery period.

There was no testimony that Bordeaux’s cognitive limitations were actually improving at the time of the formal hearing. Drs. Schwa-benbauer and Lyons, the two doctors who were familiar with the treatment Bordeaux had undergone, both pointed out that any additional improvement brought on by additional therapy would only be in the manner Bordeaux deals with his cognitive limitation. Neither doctor anticipated a decrease in the underlying limitation itself.

Looking at the record as a whole, there is substantial evidence for the conclusion that Bordeaux’s cognitive limitation had “continued for a lengthy period, and it appeared] to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.” Watson, 400 F.2d at 654. C. Motion to Compel After the formal hearing, but before the ALJ issued his decision, P & C Dock filed a motion to compel requesting the ALJ to issue an order directing Bordeaux to participate in the recommended course of psychotherapy or have his worker’s compensation payments suspended.

The ALJ first observed that this motion was not timely, but proceeded to declare that it also failed on the merits because Bordeaux’s refusal to participate in the suggested psychotherapy was not unreasonable. P & C Dock challenges both determinations. We do not need to reach the timeliness issue because the ALJ’s decision on the merits was supported by substantial evidence in light of the whole record and was consistent with applicable law.

The Longshore Act provides that: If at any time the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the Secretary or administrative law judge may, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension, unless the circumstances justified the refusal. 33 U.S.C. § 907(d)(4). This provision requires a dual inquiry. Malone v. Int’l Terminal Operating Co., 29 BRBS 109 (1995); Hrycyk v.

Bath Iron Works Corp., 11 BRBS 238, 240-41 (1979). Initially, the employer has the burden to establish that the claimant’s refusal to undergo treatment is objectively unreasonable. Hrycyk, 11 RBRS at 241-42. If the employer carries its initial burden, the claimant has an opportunity to establish that his or her refusal was justified by the circumstances. Id. at 242-43. Only if the refusal is found to be both unreasonable and unjustified may compensation be suspended. Id. at 241-43. This case only reaches the first prong because the ALJ properly found that P & C Dock did not carry its burden on that point.

The determination of whether the refusal of medical treatment is unreasonable is an issue of fact which must be upheld if it is supported by substantial evidence in light of the whole record. See Profitt v. Deatley-Overman, Inc., 86 Idaho 207, 384 P.2d 473, 475 (1963); Stamzynski v. J.S. Alberici Construc. Co., 936 S.W.2d 159 (Mo.Ct.App.1996).

The Benefits Review Board has stated that the reasonableness inquiry essentially boils down to the following question: “what course would an ordinary person in the claimant’s condition pursue after weighing the risks and rewards of the procedure with the alternatives of continued pain and restriction?” Hrycyk, 11 RBRS at 241-42. The ALJ determined that Bordeaux’s refusal to undergo the suggested psychotherapy was not unreasonable.

The essential reasons the ALJ reached this conclusion were that the suggested treatment would require Bordeaux to take antidepressants and that Bordeaux testified at the hearing that he was not depressed. The ALJ pointed out that between the time of the injury and the formal hearing Bordeaux had been prescribed various antidepressant medications which had all been discontinued by his doctor due to his inability to tolerate them.

A reasonable mind could conclude that an ordinary person who did not feel depressed would decide not to pursue a course of treatment directed at resolving depression when such treatment would involve taking antidepressant medications towards which he had previously demonstrated considerable intolerance. P & C Dock is unable to point to a sufficient basis for overturning the ALJ’s determination that Bordeaux’s refusal of the psychotherapy was not unreasonable.

P & C Dock argues that Bordeaux’s refusal must be unreasonable because there was testimony that the psychotherapy might have helped him feel better or return to work or both. Although this is the case, it is not a basis for overturning the ALJ’s determination. The reasonableness determination must be made by considering how an ordinary reasonable person in the claimant’s condition would weigh the risks as well as the potential benefits. The mere fact that the record contains some evidence of a potential benefit from a proposed treatment does not mandate that any refusal of that treatment would be unreasonable.

Presumably every case where a treatment has been suggested there is some possible benefit or the treatment would not have been proposed. Possible risks must be considered as well. There is no argument that there was no risk. P & C Dock does not (and cannot) claim that the record fails to demonstrate Bordeaux’s noted difficulties with antidepressants. P & C Dock points to two purportedly similar cases in which refusal of medical treatment was held unreasonable. The first case upheld an ALJ’s determination that refusal to undergo conservative, noninvasive treatment for a back injury was unreasonable. Profitt v.

Deatley-Overman, Inc., 86 Idaho 207, 384 P.2d 473, 475-76 (1963). However, in that case there was no indication of any particular risks from the treatment, and the only reason the claimant gave for refusing the treatment was that his employer did not bow to his demands to pay compensation for a previous time period. See id. Refusing treatment simply as leverage to extort compensation from an employer is not a reasonable basis to refuse treatment. P & C Dock does not point to any evidence that indicates that Bordeaux refused treatment for such an illegitimate purpose.

The only other case P & C Dock points to mentioned the possibility of suspending payments for refusal to participate in psychological treatment, but the issue of whether a particular refusal was reasonable in particular circumstances was not presented. See City of Jacksonville Fire Division v. McDaniel, 388 So.2d 1336, 1337-38 (Fla.Dt.Ct.App.1980). Neither does that case support a general rule that refusal to participate in recommended psychological treatment is always unreasonable. See id.

The remainder of P & C Dock’s arguments that the ALJ should have granted its motion to compel are based on the premise that Bordeaux’s refusal of treatment was unreasonable. The ALJ’s determination that Bordeaux’s refusal was not unreasonable is supported by substantial evidence and consistent with applicable law. P & C Dock has not cited any authority granting an ALJ the power to suspend payment of compensation based on a refusal of medical treatment which was not unreasonable. Consequently, there is no basis to overturn the ALJ’s denial of P & C Dock’s motion to compel or the BRB’s affirmance of that decision.

D. Attorney’s Fees After the ALJ determined that Bordeaux was permanently and totally disabled, Bordeaux filed a motion for attorney’s fees. The ALJ granted the motion finding that Bordeaux was entitled to fees pursuant to 33 U.S.C. § 928(a). The ALJ rejected P & C Dock’s argument that Bordeaux’s fee application’s use of “block billing” was not permitted by the applicable regulations. On appeal the BRB overturned the ALJ’s finding that § 928(

a) was applicable, but upheld the award of attorney’s fees on the basis that Bordeaux was entitled to fees as a matter of law pursuant to 33 U.S.C. § 928(b). The BRB upheld the ALJ’s ruling that the block billing in the application was permissible. P & C Dock appealed both rulings, arguing that Bordeaux is not entitled to attorney’s fees under either subsection of § 928, and if he is, the block billing method was impermis-sibly vague. This court does not need to reach the block billing issue because neither subsection of § 928 permits the award of attorney’s fees in this case.

When a claimant employs an attorney to pursue his or her claim under the Long-shore Act, § 928 provides for the employer to be liable for the claimant’s attorney’s fees in two particular situations which are described in subsections (

a) and (

b) respectively. “In all other cases any claim for legal services shall not be assessed against the employer.” 33 U.S.C. § 928(b). Subsection (

a) makes an employer liable for attorney’s fees when the employer “declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation within the provisions of this

chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim....” Id. § 928(a). Subsection (

b) provides that if the employer concedes that some compensation is due, but a controversy develops about the amount of additional compensation, an informal conference shall be held after which the district director shall make a written recommendation suggesting a disposition of the controversy. Id. § 928(b). If the employer refuses to accept the recommendation, it can tender or pay a lesser amount or no amount at all to the claimant. Id.

If the claimant refuses any such tender and the compensation ultimately awarded is greater than the amount tendered or paid by the employer, then the employer is liable for reasonable attorney’s fees. Id. P & C Dock began voluntarily paying Bordeaux temporary total disability benefits within thirty days of receiving notice of his claim, but later disputed that his disability was permanent in nature. P & C Dock refused to pay permanent disability benefits until Bordeaux prevailed on this issue in the formal hearing. Before the formal hearing an informal conference was held on September 19, 2002.

The only evidence in the record regarding the content of the conference is a memorandum of informal conference completed by the claims review officer. According to that memorandum, Bordeaux asserted that his disability was permanent and total, but P & C Dock’s position was that there was “insufficient medical information to address permanent and total disability.” In the

section of the form marked “Recommendation” the claims review officer explicitly stated that he was not making any recommendation at the current time because the parties were considering settlement. 1. 33 U.S.C. § 928(

a) The AL J held that P & C Dock was liable for attorney’s fees pursuant to subsection (a). The ALJ recognized that subsection (

a) does not give rise to liability for fees if an employer voluntarily pays at least some compensation. Nevertheless, the ALJ went on to assert that subsection (

a) does apply whenever an employer “has controverted some aspect of the claim and claimant successfully obtains an award which employer contested.” Mobley v. Bethlehem Steel Corp., 20 BRBS 239, 245 (1988). Even though P & C Dock paid some compensation in the form of temporary total disability payments, the ALJ concluded that subsection (

a) applied because P & C Dock controverted the permanent nature of the disability. The BRB correctly concluded that this was error. The Mobley case quoted by the ALJ does not contain any indication that the employer had voluntarily paid compensation. See Mobley, 20 BRBS at 245. Therefore, that case does not support the proposition that subsection (

a) is applicable when an employer controverts some aspect of the claim even if the employer has voluntarily paid a portion of the compensation sought. Nor has this court found support for such a proposition elsewhere. The BRB pointed out that Bordeaux filed his claim on November 6, 2000 and P & C Dock promptly began paying temporary total disability payments. Bordeaux claims that the requirements of subsection (

a) are met because his request for an informal conference to determine the issue of permanency was a “claim for compensation” for purposes of subsection (

a) and P & C Dock refused to pay the permanent disability benefits he sought in that claim. The only case Bordeaux cites in support of this argument is a Ninth Circuit case which observed in dicta that under such circumstances subsection (

a) might be applicable. Nat’l Steel & Shipbuilding Co. v. OWCP, 606 F.2d 875, 883 (9th Cir.1979). However, the courts which have actually ruled on this issue have reached the opposite conclusion. See, e.g., Virginia Int’l Terminals, Inc. v. Edwards, 398 F.3d 313, 316-18 (4th Cir.2005); Savannah Mach. & Shipyard Co. v. OWCP, 642 F.2d 887, 889 (5th Cir.1981); Boe v. Dep’t of Navy/MUR, 34 BRBS 108 (2000). The Fourth Circuit has thoroughly examined the same argument Bordeaux presents here, and it rejected that argument for two reasons. Edwards, 398 F.3d at 316-17.

First, the court noted that requesting an informal hearing is not a “claim for compensation” within the meaning of subsection (a). Id. The statutory language refers to a claim which is filed, and “the most natural reading of the phrase ‘filing a claim’ refers to a formal action that initiates a legal proceeding, rather than an informal action that seeks to alter or amend a pre-existing settlement on a prior claim.” Id. Second, the Fourth Circuit pointed out that in subsection (b), Congress set forth narrower conditions for fee awards in disputes over additional benefits. Id. at 317.

That provision would have little, if any, effect if a claimant’s request for an informal conference regarding additional compensation also constitutes a “claim for compensation” under subsection (a). Id. If that construction were accepted, virtually every claim for supplemental benefits would be covered by subsection (a), and the more stringent requirements in subsection (

b) would be rendered superfluous. Id. The reasoning in the Edwards ease provides a sound basis for the principle other cases have consistently applied. Attorney’s fees cannot be assessed under subsection (

a) when an employer voluntarily pays compensation within thirty days of when the claimant files his or her initial claim for compensation. P & C Dock paid temporary total disability compensation to Bordeaux within thirty days of when he filed his claim for compensation on November 6, 2000. Therefore, the BRB’s conclusion that Bordeaux was not entitled to attorney’s fees under subsection (

a) was proper. *. 33 U.S.C. § 928(

b) Subsection (

b) sets forth the requirements for fee liability when an employer voluntarily pays some compensation but a dispute arises concerning additional compensation.

That provision states that the following circumstances must occur in order for an employer to be liable for attorney’s fees: (1) an informal conference addressing the disputed additional compensation; (2) a subsequent written recommendation suggesting a disposition of the controversy; (3) the employer’s rejection of the recommendation; and (4) the claimant’s use of an attorney to secure an award of compensation greater than the amount the employer was willing to pay. See § 928(b). Bordeaux claims that all of these elements were met. An informal conference was held on September 19, 2002.

Apparently the extent and degree of Bordeaux’s disability were topics of the conference because the resultant memorandum described each party’s position on the issue. However, although there was a written memorandum of the informal conference which suggested various possible settlement amounts, there was no recommendation of a disposition of the controversy over whether Bordeaux’s disability was permanent and total. Instead the memorandum explicitly stated that no recommendation was being made because of the possibility of settlement.

The BRB acknowledged that in this case there was no written recommendation regarding the disposition of the controversy as required by the plain language of subsection (b). Nevertheless, the BRB went on to claim that “the absence of a written recommendation by the district director following the informal conference ... does not preclude liability.” The BRB went on to note that since P & C Dock voluntarily paid compensation and Bordeaux was awarded additional compensation by the ALJ, that was sufficient to make P & C Dock liable for attorney’s fees under subsection (b).

The Ninth Circuit precedent relied upon by the BRB does support its ruling. See, e.g., Nat’l Steel, 606 F.2d at 882. However, the BRB did not adequately address the circuit split which exists on this issue. 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). Two days after the BRB issued its ruling, the Fourth Circuit weighed in on this issue, agreeing with the Fifth Circuit. Edwards, 398 F.3d at 318. Whether the lack of a written recommendation (or any recommendation at all) for the disposition of the controversy precludes fee liability under subsection (

b) is an issue of first impression in this circuit. 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. This approach is based on the assessment that “[t]he purpose of the statute is to authorize the assessment of legal fees against employers in cases where the existence or extent of liability is controverted and the employee-claimant succeeds in establishing liability or obtaining increased compensation in formal proceedings in which he or she is represented by counsel.” Nat'l Steel, 606 F.2d at 882. 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. Fee liability has been imposed where there was a recommendation after an informal conference was held, but the recommendation was not in writing. Id. The Ninth Circuit has also assessed attorney’s fees under subsection (

b) where there was a written recommendation, but no informal conference had been held. Matulic v. OWCP, 154 F.3d 1052, 1060 (9th Cir.1998); see also Caine v. Washington Meto. Area Transit Authority, 19 BRBS 180 (1986). 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.

Therefore, the lack of an informal conference and the lack of a written recommendation have been held to preclude the assessment of attorney’s fees under subsection (b). Edwards, 398 F.3d at 318 (“The failure to hold an informal conference or issue a written recommendation is fatal to a claim for attorney’s fees under the plain terms of

section 928(b).”); Pool Co., 274 F.3d at 186 (holding that where no informal conference took place “that fact poses an absolute bar to an award of attorney’s fees under § 28(b)”); Staftex, 237 F.3d at 408-09; FMC Corp., 128 F.3d at 910. We adopt the approach taken by the Fourth and Fifth Circuits. “In all cases of statutory construction, the starting point is the language employed by Congress.” Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995). “Moreover, where the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” Chapman v.

Higbee Co., 319 F.3d 825, 829 (6th Cir.2003) (en banc) (quoting United States v. Ron Pair Enterprises, 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290(1989)). 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. The Ninth Circuit avoids this result by-referring to the legislative history of subsection (b). See Nat’l Steel, 606 F.2d at 882. There are two fundamental problems with this approach. First, resorting to legislative history is only appropriate when the statutory language at issue is not clear. In re Comshare Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir.1999) (citing Consumer Prod. Safety Comm’n v.

GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). Second, the legislative history cited by the Ninth Circuit does not support the proposition for which it is cited. The Ninth Circuit asserts that according to the legislative history “[t]he purpose of the statute is to authorize the assessment of legal fees against employers in cases where the existence or extent of liability is controverted and the employee-claimant succeeds in establishing liability or obtaining increased compensation in formal proceedings in which he or she is represented by counsel.” Nat’l Steel, 606 F.2d at 882.

However, the document cited actually states that subsection (

b) deals with “cases where payment of compensation is tendered and an unresolved controversy develops about the amount of additional compensation, despite the written recommendation of the deputy commissioner.” H.R.Rep. No. 92-1441 (1972), reprinted in 1972 U.S.S.C.A.N. 4698, 4717 (emphasis added). Since there is little, if any, support for the Ninth Circuit’s position, even in the legislative history, we reject the Ninth Circuit’s approach and hold that Bordeaux is not entitled to attorney’s fees pursuant to subsection (

b) because there was no written recommendation regarding the disposition of the controversy. III. CONCLUSION The ALJ’s determination that Bordeaux’s cognitive disability was permanent was based on substantial evidence and consistent with applicable law. Therefore, it is beyond the purview of this court to overturn that decision. The ALJ’s denial of the motion to compel based on his conclusion that Bordeaux’s refusal to undergo the recommended additional therapy was not unreasonable is similarly well-grounded. However, the conclusion that subsection (

a) applies in this case is contrary to applicable law as pointed out by the BRB. Finally, the BRB’s determination that subsection (

b) applies was error. For the forgoing reasons, the order directing P & C Dock to pay Bordeaux’s attorney’s fees and expenses is REVERSED and the remainder of the BRB’s decision is AFFIRMED. . If an employee’s condition does improve after he or she has been determined to be permanently disabled, the employer may have the employee's condition reviewed and reevaluated under the modification procedure set forth in 33 U.S.C. § 922. . P & C Dock does allege that Bordeaux refused psychotherapy for the purpose of staying fully disabled and ensuring that he would not recover enough to return to work.

This allegation is mere speculation which the ALJ properly rejected based on the extensive medical treatment Bordeaux willingly underwent in the years following his accident. . At oral argument, counsel for P & C Dock stated that a total of three informal conferences were held. However, the record does not provide any reference to or information regarding any informal conferences other than the one held on September 19, 2002. . Since the Benefits Review Board is not a policymaking agency, its

interpretation of the Longshore Act is not entitled to any special deference from the court. Potomac Elec. Power Co. v. OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). . The complete text of subsection (

b) reads as follows: If the employer or carrier pays or tenders payment of compensation without an award pursuant to

section 914(

a) and (

b) of this title, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within fourteen days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled.

If the employee refuses to accept such payment or tender of compensation, and thereafter utilizes the services of an attorney at law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation.

The foregoing sentence shall not apply if the controversy relates to degree or length of disability, and if the employer or carrier offers to submit the case for evaluation by physicians employed or selected by the Secretary, as authorized in

section 907(

e) of this title and offers to tender an amount of compensation based upon the degree or length of disability found by the independent medical report at such time as an evaluation of disability can be made. If the claimant is successful in review proceedings before the Board or court in any such case an award may be made in favor of the claimant and against the employer or carrier for a reasonable attorney's fee for claimant's counsel in accord with the above provisions. In all other cases any claim for legal services shall not be assessed against the employer or carrier. 33 U.S.C. 928(b).