BRB No. 91-1322
MASTAQUE AHMED )
)
Claimant-Respondent )
)
v. ) DATE ISSUED: 04/28/1993
)
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY )
)
Self-Insured )
Employer-Petitioner ) DECISION AND ORDER
Appeal of the Order Granting Attorney's Fees of Glenn Robert Lawrence,
Administrative Law Judge, United States Department of Labor.
William S. Hopkins (McChesney, Duncan & Dale), Washington, D.C., for
claimant.
Michael P. DeGeorge (Mell & Associates), Washington, D.C., for self-insured employer.
BEFORE: SMITH, BROWN, and DOLDER, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Order Granting Attorney's Fees (90-DCW-037) of
Administrative Law Judge Glenn Robert Lawrence rendered on a claim filed pursuant
to the provisions of the Longshore and Harbor Workers' Compensation Act, as
amended, 33 U.S.C. §901 et seq. (1982), as extended by the District of
Columbia Workmen's Compensation Act, 36 D.C. Code §501 et seq.
(the Act). The amount of an attorney's fee award is discretionary and
may only be set aside if shown by the challenging party to be arbitrary,
capricious, an abuse of discretion or not in accordance with the law. See
Roach v. New York Protective Covering Co., 16 BRBS 114 (1984); Muscella
v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
On January 14, 1980, claimant, a revenue attendant for employer, sustained
injury to his lower back which arose out of and in the course of his employment.
Employer voluntarily paid claimant temporary total disability compensation from
January 21, 1980 through August 29, 1982 and temporary partial disability
compensation from August 30, 1982 to August 31, 1983. Claimant, thereafter, sought
additional temporary total disability compensation from June 24, 1989 to November 6, 1989, in the amount of $3,484.32 and
payment of two medical bills totalling $611.50. Between October 10, 1989 and
February 22, 1990, employer's counsel sent three letters to claimant's counsel
regarding the possibility of a settlement. No settlement was ever reached,
however, and on November 16, 1990, a formal hearing was held. In his Decision and
Order, the administrative law judge denied claimant's temporary total disability
claim pursuant to Section 8(a) of the Act, 33 U.S.C. §908(a), but ordered
employer to pay $611.50 in medical expenses pursuant to Section 7(a) of the Act,
33 U.S.C. §907(a).[1]
Claimant's counsel subsequently submitted a fee petition requesting $3,000,
representing 19.4 hours of attorney services at $150 per hour and 1.8 hours of
paralegal services at $50 per hour. Thereafter, employer filed objections to the
fee petition, contending that it was not liable for claimant's attorney's fee
because it voluntarily tendered a settlement offer which exceeded the amount
ultimately awarded and that the amount of the fee sought was excessive. In his
Order Granting Attorney's Fees, the administrative law judge awarded claimant's
counsel a fee of $2,670, representing 17.6 hours of legal services at an hourly
rate of $150 and .6 hours of paralegal services at an hourly rate of $50 payable
by employer.
Employer appeals the award of an attorney's fee, arguing that it should not
be held liable for claimant's attorney's fee pursuant to Section 28(b) of the Act,
33 U.S.C. §928(b), because claimant refused its settlement offer and was
ultimately awarded less than the offered amount. Alternatively, employer argues
that the fee awarded is excessive as a matter of law because it exceeds the $611.50
in medical bills recovered and that the complexity of the case does not justify the
$150 hourly rate awarded. Claimant responds, urging affirmance.
Initially, we reject employer's assertion that the administrative law judge
erred in holding it liable for claimant's attorney's fees. Under Section 28(b) of
the Act, when an employer voluntarily pays or tenders benefits and thereafter a
controversy arises over additional compensation due, the employer will be liable
for an attorney's fee if the claimant succeeds in obtaining greater compensation
than that paid or tendered by employer. See, e.g., Tait v. Ingalls
Shipbuilding, Inc., 24 BRBS 59 (1990);Kleiner v. Todd Shipyards Corp.,
16 BRBS 297 (1984). In the present case, counsel for employer submitted two letters
into the record in support of its assertion that it had made a settlement offer in
which it tendered an amount greater than that ultimately awarded. In a letter dated
October 10, 1989, employer's counsel stated that she would be willing to recommend
a $1,500 settlement plus open medicals to her client. In a January 19, 1990 letter,
employer's counsel reiterated her belief that a settlement under the aforementioned
terms would be acceptable to her client.
After considering these letters, the administrative law judge determined that
no definitive offer of compensation had been made and noted that employer's counsel
never stated that she had the authority to settle for the indicated amount.
Because the October 10, 1989 and January 19, 1990 letters submitted by employer's
counsel indicate only that she was willing to recommend settlement of a $1,500 plus
medicals to her client, and not that she was authorized to agree to a settlement
for that amount, we agree with the administrative law judge's finding that these
letters do not tender compensation as required by Section 28(b), as they do not
establish a readiness, willingness, and ability on employer's part to make payment
to claimant. See Kaczmarek v. I.T. O. Corp. of Baltimore, Inc., 23 BRBS
376 (1990); Armour v. Maryland Shipbuilding & Dry Dock Co., 19 BRBS 119
(1986). Accordingly, as the administrative law judge properly found the letters do
not constitute a tender of compensation under Section 28(b) and claimant's counsel
succeeded in establishing claimant's entitlement to $611.50 in medical expenses
while the case was pending before the administrative law judge, we affirm his
determination that these additional benefits support an attorney's fee award
payable by employer. See Fairley v. Ingalls Shipbuilding, 25 BRBS 61
(1991).[2]
We agree with employer, however, that the $3,000 attorney's fee awarded by the
administrative law judge cannot be affirmed in view of the recent decision of the
United States Court of Appeals for the District of Columbia Circuit, within whose
jurisdiction the present case arises, in George Hyman Construction Co. v.
Brooks, 963 F.2d 1532, 25 BRBS 161, 165 (CRT)(D.C. Cir. 1992), inasmuch as
claimant was unsuccessful on his temporary total disability claim and was awarded
only $611.50 in medical benefits. In Brooks, the court held that the test
developed by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424,
103 S.Ct. 1933 (1983), for awarding fees applies to attorney's fee awards under the
Act. The Court in Hensley addressed the conditions under which a plaintiff
who prevails on only some of his claims may recover attorney's fees under the Civil
Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988. Specifically, the
Court created a two-prong test focusing on the following questions:
First, did the plaintiff fail to prevail on claims that were unrelated
to the claims on which he succeeded? Second, did the plaintiff achieve
a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award?
461 U.S. at 434, 103 S.Ct. at 1940. The Supreme Court noted that the degree of
success attained is the most crucial factor to consider and that if a plaintiff
achieves only partial or limited success, the product of hours reasonably expended on the litigation as a
whole times a reasonable hourly rate may result in an excessive amount. 461 U.S.
at 436, 440; 103 S.Ct. at 1941, 1943. The Court stated, however, that there is no
precise rule or formula, but that a court (factfinder) may address such case by
eliminating hours or simply reducing the award. 461 U.S. at 436-437, 103 S.Ct.at
1941. Claimant in the present case succeeded only on his medical benefits claim,
which was unrelated to the unsuccessful attempt to recover additional disability
benefits. Inasmuch as the administrative law judge did not specifically consider
claimant's limited success in making the fee award in this case, we vacate the fee
award and remand the case for the administrative law judge to reconsider the amount
of the fee award consistent with Hensley and Brooks.
Employer also challenges the $150 hourly rate awarded by the administrative
law judge in this case. In general, this rate may be reasonable in a case under
the regulatory criteria. 20 C.F.R. §702.132. In light of our decision to
vacate the fee award, however, we need not address employer's assertion that the
complexity of this case does not warrant a $150 hourly rate. The complexity of
the legal issues involved and the reasonableness of the hourly rate sought in view
of claimant's limited success are among the factors to be considered by the
administrative law judge in reconsidering the fee award on remand under Hensley
and Brooks.
Accordingly, the administrative law judge's determination that employer is
liable for claimant's attorney's fee is affirmed. The administrative law judge's
award of an attorney's fee, however, is vacated, and the case is remanded for
further consideration of the fee award consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)Employer was ordered to pay $226.50 for Dr. Bruno's April 19,
1989 medical bill and $385 for treatment rendered by the Center for Orthopaedic and
Sports Physical Therapy in accordance with their bill of May 19, 1989.
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2) A third letter from employer's counsel dated February 22, 1990
although not specifically discussed in the administrative law judge's Decision and
Order also may not be properly construed as extending a settlement offer. In this
letter employer's counsel merely indicated that employer was not interested in
accepting claimant's temporary total disability claim and was contesting Dr.
Bruno's medical expenses.
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NOTE: This is a PUBLISHED LHCA Document.
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