BRB No. 97-1676


LEONARD PTAK                            )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   08/25/1998
                                        )
       v.                               )
                                        )
OWENS-CORNING FIBERGLAS                 )
                                        )
       and                              )
                                        )
AETNA CASUALTY AND                      )
SURETY COMPANY                          )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Compensation Order of Karen P. Staat, District Director,
     United States Department of Labor.

     Jeffrey S. Mutnick (Pozzi, Wilson, Atchison, L.L.P.), Portland, Oregon,
     for claimant.

     William M. Tomlinson (Lindsay, Hart, Neil & Weigler, L.L.P.), Portland,
     Oregon, for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Compensation Order (OWCP No. 14-115354) of District
Director Karen P. Staat 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.
Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986); Roach v. New York
Protective Covering Co., 16 BRBS 114 (1984).
     A Decision and Order was issued by Judge Lindeman on November 29, 1995,
wherein he accepted claimant and employer's joint stipulation of facts.  Pursuant
to the stipulation, employer agreed to pay claimant permanent partial disability
benefits for his scleroderma which is causally related to his work.  Additionally,
employer agreed to pay medical expenses in accordance with Section 7, 33 U.S.C.
§907, as well as an attorney's fee.  Decision and Order at 1-2.

     On June 25, 1997, claimant's counsel filed a fee petition with the district
director, requesting $3,290.62 for a total of 19.875 hours of services for work
performed before the district director between March 8, 1996, and May 13, 1997,
after the administrative law judge issued his decision.  According to claimant's
counsel, a large percentage of the charges arose because it was necessary to file
an application for default after the issuance of the decision because employer
refused to pay the medical expenses.   Employer objected to the fee, arguing that
a majority of the work for which counsel sought a fee was related to a controversy
created by counsel himself.  Specifically, employer argued that between the date
of the administrative law judge's Decision and Order, November 29, 1995, and the
date it paid medical expenses, April 17, 1997, it repeatedly requested
documentation to substantiate the claimed expenses.  It argued it was willing to
pay benefits, but it needed an itemization of expenses and reports, and it required
information concerning which costs had been paid and which had not, and counsel did
not supply this information to employer until March 20, 1997.  Emp. Obj. to Fee.[1]   Therefore, employer argued that the fee request
was excessive and unreasonable and that it should not be held liable for any fee.

     The district director agreed with employer's objections and found that
claimant's counsel generated the controversy over the payment of medical expenses
by not furnishing employer with documentation to prove that the expenses were
related to the injury and were reasonable.  Therefore, she significantly reduced
the fee, disallowing all entries related to the "controversy" and allowing only
those costs related to winding up the case and to substantiating the medical
expenses.   Further, the district director concluded that none of those reasonable
costs could be assessed against employer because it did not contest the claim after
the entry of the administrative law judge's order.  After scrutinizing the
petition, the district director determined that the issues involved in the
allowable services were not complex and do not warrant an hourly rate of $225. 
Therefore, she awarded hourly rates of $150 for attorney time and $50 for paralegal
time.  She concluded that only 1.15 hours of attorney time and 1.05 hours of
paralegal time were necessary to "wind up" the case and to document the claimed
medical expenses.  Thus, she awarded a fee of $225, payable by claimant.  Comp.
Order at 1-4.

     Claimant's counsel appeals the award, arguing that employer failed to pay
medical expenses in accordance with Judge Lindeman's order and that it therefore
was necessary to initiate a default action.  In that light, counsel argues that it
was erroneous for the district director to require counsel to incur the expense of
itemizing claimant's medical expenses.  Counsel thus challenges the reduction of
his fee request and the imposition of fee liability on claimant.  Employer urges
affirmance, arguing that, as counsel created the "post-settlement" controversy, the
district director properly reduced the fee and assessed it against claimant.  In
reply, counsel states there are no facts to support the district director's
conclusion that counsel generated an unnecessary controversy, as employer is
obligated to pay the expenses, and there is no legal authority to support her
decision to assess the fee against claimant.  Further, counsel challenges the
reduction of the hourly rate.[2] 

     Section 7 of the Act, 33 U.S.C. §907, requires an employer to pay
reasonable and necessary medical expenses related to a claimant's work injury.  It
is the claimant's burden, however, to show that the expenses are necessary and are
related to the injury.  Ballesteros v. Willamette Western Corp., 20 BRBS 184
(1988).  Counsel here argues that employer should be held liable for the entire
requested fee because he had a legitimate cause of action due to employer's refusal
to pay medical expenses and its insistence that he bear the burden of itemizing the
expenses.  As it is claimant's burden to establish the necessity of medical
expenses, we affirm the district director's determination that it is not employer's
responsibility to search counsel's collection of medical bills, but that it is
claimant's/counsel's responsibility to prove that the requested expenses are
related to claimant's injury and are necessary to treat it. See Romeike v.
Kaiser Shipyards, 22 BRBS 57 (1989).  Therefore, the district director
correctly determined that claimant and his attorney bear the responsibility for
providing employer with documentation substantiating the claim for medical
benefits.

     Since it is claimant's burden to prove the compensability of medical expenses,
we hold that it was reasonable for the district director to find that counsel
initiated and prolonged a "controversy" by failing to submit the documentation to
employer to substantiate the claim.  Consequently, she rationally disallowed the
hours counsel claimed for the work created by his actions, as it resulted from
counsel's failure to timely provide the necessary documentation.  Counsel is
entitled to a reasonable fee for necessary work.  20 C.F.R. §702.132. 
Therefore, we affirm the reduction of the fee award, as it is reasonable and
thoroughly explained, and we affirm the disallowance of all charges related to the
default action, as that action was unnecessary. Welch v. Pennzoil Co., 23
BRBS 395 (1990); Berkstresser v. Washington Metropolitan Area Transit
Authority, 16 BRBS 231 (1984); Roach, 16 BRBS at 114.

     We agree, however, with counsel's assertion that employer, and not claimant,
should be held liable for the awarded fee.  Employer may be held liable for
reasonable "wind-up" services after it has agreed to pay benefits. See generally
Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995).   Contrary to the
district director's finding, there need not be an agreement between the parties on
employer's liability for wind-up services before it can be held liable. Further,
the district director determined that it was reasonable for counsel to charge for
time needed to document the medical expenses.  Although the district director
correctly placed responsibility for the delay of payment on counsel's unwarranted
actions, this fact does not warrant relieving employer of its liability for a
reasonable attorney's fee for the necessary work, as employer did contest
claimant's entitlement to benefits, which were later awarded.  Therefore, as
claimant successfully prosecuted this case, see, e.g., Frawley v. Savannah
Shipyard Co., 22 BRBS 328 (1989); Powers v. General Dynamics Corp., 20
BRBS 119 (1987), we hold that the district director improperly held claimant liable
for the fee.  Consequently, we modify the district director's fee award to reflect
employer's liability for the reasonable fee of $225 assessed by the district
director.
     Accordingly, the district director's fee award is modified to reflect
counsel's entitlement to an attorney's fee of $225, payable by employer directly
to claimant's counsel.  In all other respects, the district director's order is
affirmed.

     SO ORDERED.



                                   _______________________________
                                   BETTY JEAN HALL, Chief
                                   Administrative Appeals Judge




                                   _______________________________
                                   ROY P. SMITH
                                   Administrative Appeals Judge




                                   _______________________________
                                   MALCOLM D. NELSON, Acting
                                   Administrative Appeals Judge




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Footnotes.
 1)Claimant's counsel submitted to employer a hand-written list
of expenses (without supporting documentation).  On March 8, 1996, counsel informed
employer that the documentation was in his office available for employer to see,
and he gave employer two weeks to pay or he would initiate litigation.  In April
1996, counsel gave employer a boxful of medical bills (no accompanying reports),
and in May, he asked the district director to order employer to pay.  In June 1996,
the district director asked counsel to provide employer with an itemization of
unpaid bills together with related medical reports.  Also, in June 1996, employer
again asked for additional documentation regarding medical expenses and mileage
charges.  In September 1996, counsel threatened to seek enforcement in district
court, and later he sought a default order from the district director.  In March
1997, counsel finally provided employer with the requested information.  Emp. Brief
and attachments.
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 2)We decline to address the argument concerning the awarded
hourly rates.  Counsel did not raise it in his initial brief before the Board, and
employer did not address it in its response brief.  20 C.F.R. §802.213(b). 
Therefore, the argument is not properly raised before the Board.
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