BRB No. 01-0619
BENJAMIN N. DUNCAN, JR. )
)
Claimant-Respondent )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 04/17/2002
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Respondent )
)
RICHARD B. DONALDSON, JR. )
)
Petitioner ) DECISION and ORDER
Appeal of the Order - Denial of Attorney's Fee of B.E. Voultsides,
District Director, United States Department of Labor.
Bryan H. Schempf (Jones, Blechman, Woltz & Kelly, P.C.), Newport News,
Virginia, for petitioner.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Petitioner[1] appeals the Order - Denial of
Attorney's Fee (Case No. 5-63470) of District Director B.E. Voultsides 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. (the Act). The
amount of an attorney's fee award is discretionary and will not be set aside unless
shown by the challenging party to be arbitrary, capricious, an abuse of discretion
or not in accordance with the law. See, e.g., Muscella v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
The following facts are gleaned from the brief and attachments filed with the
Board by claimant's former counsel. Claimant suffered injuries to his knees on
October 26, 1987. Following this work injury, employer apparently voluntarily paid
claimant disability compensation. On February 12, 1993, claimant retained the
services of Attorney Richard B. Donaldson, Jr. Thereafter, in 1995, counsel
requested a hearing after employer reduced its payments to claimant. On June 28,
1996, claimant dismissed Mr. Donaldson as his legal representative.
On October 10, 1996, Mr. Donaldson submitted a fee petition to the district
director documenting the services he allegedly rendered on claimant's behalf and
requesting a fee totaling $2,490. In a letter to counsel dated July 17, 2000, the
district director declined to issue an order regarding counsel's fee request,
stating that questions regarding successful prosecution, the explanation of the
fee, the explanation of the issues and claimant's financial ability to pay the fee
remained unresolved. In response, Mr. Donaldson's office wrote the district
director on July 25, 2000, stating that claimant received temporary total
disability benefits, as well as assistance in receiving medical benefits and job
rehabilitation, during his representation by Mr. Donaldson. On August 14, 2000,
the district director refused to impose liability for a fee on claimant, stating
that he was unable to determine if claimant understood his counsel's
representation, whether the services rendered by counsel were reasonable and
necessary, whether or not there had been a successful prosecution, and claimant's
ability to pay the fee. On April 5, 2001, the district director issued an Order
stating that the outcome of the instant case does not constitute a successful
prosecution and that, accordingly, claimant and employer are not liable to
claimant's counsel for any attorney's fees. The district director concluded,
however, that if claimant's counsel believes that a good faith claim exists for an
attorney's fee, an appropriate petition should be filed with the office before
which the services were performed.
On appeal, claimant's former counsel challenges the district director's
refusal to hold claimant liable for an attorney's fee pursuant to Section 28(c)
of the Act, 33 U.S.C. §928(c). Claimant has not responded to this appeal.
An attorney's fee must be awarded in accordance with Section 28 of the Act,
33 U.S.C. §928, and the applicable regulation, Section 702.132, 20 C.F.R.
§702.132. Under Section 28(a) of the Act, 33 U.S.C. §928(a), if an
employer declines to pay any compensation within 30 days after receiving written
notice of a claim from the district director, and the claimant's attorney's
services result in a successful prosecution of the claim, claimant is entitled to
an attorney's fee payable by employer. 33 U.S.C. §928(a). Under Section
28(b) of the Act, 33 U.S.C. §928(b), 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 agreed to by the employer. 33 U.S.C.
§928(b). If Section 28(a) or (b) does not apply, an attorney's fee may be
made a lien upon the compensation due to claimant pursuant to 33 U.S.C.
§928(c). See generally Boe v. Dept. of the Army/MWR, 34 BRBS 108
(2000). Under such circumstances, any fee approved must take into account the
financial circumstances of the claimant. 20 C.F.R. §702.132(a).
We agree with claimant's former counsel that the district director's Order
cannot be affirmed. Specifically, the district director failed to adequately
explain his decision in declining to award a fee in this case or to make the
necessary findings regarding counsel's fee petition. See Ferguson v.
Newport News Shipbuilding & Dry Dock Co., BRBS , BRB No. 01-0504 (Feb.
14, 2002). Initially, the Order provides an inadequate explanation for denying a
fee as it merely summarily states that the outcome of the case does not constitute
a successful prosecution. The Order does not indicate, however, whether the
district director considered counsel's assertions that claimant received temporary
total disability compensation, medical benefits, and vocational rehabilitation
during the period of time that he was represented by counsel, which could support
a fee payable by claimant.[2] See Boe, 34
BRBS 108. Moreover, counsel asserts that employer reduced its payments, leading him
to request a hearing, which he avers involved necessary work for claimant. As the
district director's attorney's fee Order does not adequately explain or resolve the
issues raised by counsel, it must be vacated and the case remanded for more
specific findings in accordance with Section 28 of the Act and 20 C.F.R.
§702.132. See generally Thompson v. Lockheed Shipbuilding & Constr.
Co., 21 BRBS 94, 97 (1988).
In addition, as claimant's former counsel, in conformance with 20 C.F.R.
§702.132, presented the district director with a documented fee petition
itemizing the services which he allegedly rendered on behalf of claimant while
this case was pending before the district director, the district director erred in
not addressing the fee petition. Therefore, as in Ferguson, slip op. at 3-4, the case must be remanded for the district director to address whether the
requested fee is reasonably commensurate with the necessary work performed, taking
into consideration the quality of the representation, the complexity of the issues
involved, the amount of benefits received by claimant and claimant's ability to pay
the fee.[3] See Thompson, 21 BRBS 94; 33
U.S.C. §928; 20 C.F.R. §702.132.
Accordingly, the district director's Order is vacated and the case is remanded
for further proceedings consistent with this opinion.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)This appeal is brought by claimant's first attorney, Richard
B. Donaldson, Jr., for services rendered on behalf of claimant while this case was
pending before the district director. Claimant, following his dismissal of Mr.
Donaldson, apparently retained the services of W. Mark Broadwell, who has not filed
a response brief with the Board on claimant's behalf.
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2)Where counsel seeks a fee payable by employer, a "successful
prosecution" is measured by claimant's success in view of the amounts paid or
tendered by employer. See 33 U.S.C. §928(a), (b). In all other cases
where benefits are paid, counsel may be awarded a fee for necessary work as a lien
on claimant's compensation. In this regard, contrary to the district director's
concerns, when addressing claimant's ability to pay the awarded fee as required by
20 C.F.R. §702.132(a), the official awarding the fee is not required to
conduct discovery; as the fee is a lien on compensation this factor is considered
in the context of the benefits received by claimant. Only where all benefits are
denied is there no successful prosecution such that counsel is not entitled to a
fee. See Duhagon v. Metropolitan Stevedore Co., 31 BRBS 98 (1997),
aff'd, 169 F.3d 615, 33 BRBS 1 (CRT)(9th Cir. 1999); Rizzi v. Underwater
Constr. Corp., 27 BRBS 273, aff'd on recon., 28 BRBS 360 (1994),
aff'd, 84 F.3d 199, 30 BRBS 44 (CRT)(6th Cir. 1996), cert. denied,
519 U.S. 931 (1996). However, counsel is entitled to a fee only for work the
district director finds necessary to claimant's obtaining benefits.
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3)In this regard, the district director has misinterpreted the
Board's decision in Sinclair v. Newport News Shipbuilding & Dry Dock Co.,
BRB No. 98-1013 (Mar. 4, 1999)(unpub.). See Letter dated August 14, 2000.
Contrary to the apparent understanding of the district director, that official is
not required to institute contact with claimant prior to considering counsel's fee
request. Rather, the Board's holding in Sinclair states that the district
director must make adequate findings in his fee order to support the fee awarded.
In particular, in that case, the district director held claimant liable for his
counsel's fee without an explanation as to why employer was not liable for the fee,
an issue which was raised by counsel, and with no indication that he considered the
regulatory criteria; the Board therefore remanded the case for the district
director to render specific findings in accordance with Section 28 of the Act and
Section 702.132 of the regulations. See Sinclair, slip op. at 2. These
requirements contained in Sinclair are thus consistent with those in any
routine fee case.
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NOTE: This is an UNPUBLISHED LHCA Document.
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