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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, 219 F.3d 426 (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, 936 F.2d 819 (5th Cir. 1991)."
and any reference to the "true doubt" rule which was rejected in
Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994).
3