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                                 BRB No. 99-0338


MICHAEL E. BLUIETT                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
TRINITY PLATZER SHIPYARD                )    DATE ISSUED:   12/21/1999

                                        )
     and                                )
                                        )
RELIANCE NATIONAL INDEMNITY             )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order - Awarding Attorney's Fees
     of James W. Kerr, Jr., Administrative Law Judge, United States
     Department of Labor.

     Bob Wortham (Reaud, Morgan & Quinn, Inc.), Beaumont, Texas, for
     claimant.

     Collins C. Rossi, Metarie, Louisiana, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Supplemental Decision and Order - Awarding Attorney's
Fees (96-LHC-1261) of Administrative Law James W. Kerr, Jr., 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 may be set aside only if the challenging
party shows it to be arbitrary, capricious, an abuse of discretion or not in
accordance with law. See, e.g., Ezell v. Direct Labor, Inc., 33 BRBS 19
(1999).
     Claimant, a dry foreman, was injured during the course of his employment on
October 26, 1993, when his hand was caught in a bench grinder.  Employer
subsequently paid claimant compensation for various periods of disability as well
as for a six percent permanent partial  disability to his right hand.  Before the
administrative law judge, claimant sought additional disability compensation and
medical benefits.  In his Decision and Order, the administrative law judge found,
inter alia, that claimant's present cervical condition did not arise out of
the subject work accident, but that claimant was incapable of resuming his usual
employment duties with employer as a result of the restrictions placed on claimant
due to his hand injury. Thus, the administrative law judge awarded claimant
temporary total disability compensation from the date of injury and continuing, as
well as related medical expenses.  
     Subsequent to the administrative law judge's decision, claimant's counsel
filed a fee petition, to which employer filed objections.  The administrative law
judge, stating that certain entries in this petition lacked either a complete
statement of the nature of the services rendered or failed to indicate by whom the
services were performed, thereafter issued an Order Requiring Clarification of the
Attorney's Fee Application.  Claimant's attorney then filed an Amended Itemized Fee
Request, seeking a fee totaling $51,743.16, which represented an attorney's fee of
$38,020 for 152.08 hours of services at $250 per hour, a legal assistant's fee of
$3,527.25, representing 47.03 hours of services at $75 per hour, plus expenses of
$10,195.91.  In his Supplemental Decision and Order, the administrative law judge
reduced both the hourly rates and the number of hours sought by counsel and awarded
a total fee of $21,244.34, representing 102.3 hours of attorney services at $150
per hour, 10.53 legal assistant hours at $60 per hour, and $5,267.54 in expenses.

     Claimant now appeals, contending that the administrative law judge erred in
reducing his hourly rate, reducing and/or eliminating certain requested hours, and
reducing his requested expenses.  Employer responds, urging affirmance.

     Claimant initially maintains that the administrative law judge erred in
reducing his requested hourly rate to $150 per hour.  We disagree.   After
considering the contentions of both parties and the customary rates awarded in the
Houston, Texas area, as well as the expertise of counsel, the administrative law
judge found that a reasonable and appropriate rate for the geographic region where
this case arose was $150 per hour.  In his brief, claimant has not satisfied his
burden of showing that the administrative law judge abused his discretion in
awarding an hourly rate of $150 for work performed by claimant's counsel. 
Accordingly, we affirm the  administrative law judge's hourly rate determination
in this case.  See Story v. Navy Exchange Service Center, 33 BRBS 111
(1999); Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42 (1995).

     Claimant next alleges that the administrative law judge abused his discretion
in eliminating four of the eighteen charges attributed to "letters to Rossi,"
i.e., employer's counsel.  The administrative law judge denied these charges
because claimant failed to describe with sufficient particularity the nature of the
letters and, thus,  the administrative law judge concluded that he was thus
unable to determine whether the services rendered were reasonable and necessary.
See Supplemental Decision and Order at 4.  Claimant's mere assertion that
his counsel's signature on these letters is sufficient justification for approving
the time sought is insufficient to meet his burden of proving that the
administrative law judge abused in his discretion in this regard.[1]   Accordingly, we affirm the administrative law
judge's decision to deny counsel the time spent on the four pieces of
correspondence at issue. See 20 C.F.R. §702.132.

     Claimant also objects to the administrative law judge's decision to deny
counsel reimbursement for the number of  hours sought preparing for the second
hearing in this case. Specifically, claimant argues that because additional
witnesses and issues were brought forth during this second hearing, counsel should
have been awarded the additional time sought preparing for that hearing.  The
record reflects that two hearings were held in this case, on August 14, 1997, and
March 27, 1998, respectively.  Claimant's attorney requested 30 hours of
preparation time for himself and 15 hours for his legal assistant for each of these
hearings.  In addressing these requests, the administrative law judge found that
45 hours of preparation for each of the hearings, i.e., a total of 90 hours,
was excessive, unreasonable, and duplicative; the administrative law judge thus
denied the second 45 hour request. See Supplemental Decision and Order at
4.  Although claimant asserts that the facts changed based on the issues created
by employer following the initial hearing, claimant fails to specify what
additional issues were raised.  Claimant's mere assertions to the contrary are
insufficient to meet his burden of proving that the administrative law judge abused
in his discretion in this regard, and the administrative law judge's reduction in
the requested preparation hours is affirmed. See Ross, 29 BRBS at 42;
Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Cabral v. General
Dynamics Corp., 13 BRBS 97 (1981).

     Claimant next objects to the administrative law judge's reduction in the
requested expenses. [2]   Pursuant to Section
28(d), 33 U.S.C. §928(d), of the Act, an administrative law judge may assess
litigation costs and requires analysis of the reasonableness and necessity of the
costs incurred by counsel in litigating the case.  See generally Forlong v.
American Security & Trust Co., 21 BRBS 155 (1988).

     In the instant case, claimant challenges the administrative law judge's
reduction in the charges rendered by Mr. Kramberg, claimant's vocational expert. 
In support of its allegation of error, claimant contends only that Mr. Kramberg's
services were necessary to nullify employer's vocational expert, who opined that
claimant was capable to performing suitable alternate employment, and that his
charges were "reasonable." See Claimant's brief at 2.  In addressing
claimant's request for reimbursement of Mr. Kramberg's charges, the administrative
law judge initially found Mr. Kramberg's services to be unnecessary to the outcome
of the case since claimant had not been released to return to work.  Moreover, the
administrative law judge reviewed Mr. Kramberg's invoices and found the time
requested to be both excessive and unreasonable.   Based upon these findings, the
administrative law judge found employer to be liable for $3,528.38, i.e.,
one-half of the total charge submitted by Mr. Kramberg.   Although claimant may
have been justified in acquiring the services of Mr. Kramberg in support of his
position that he is presently unemployable, on appeal he has provided no support
for his allegation that the administrative law judge erred in reducing the actual
fee charged by Mr. Kramberg based upon his determination that the time requested
was excessive and unreasonable.  Accordingly, we affirm the administrative law
judge's reduction in the charges submitted by claimant's vocational expert. See
generally Welch v. Pennzoil Co., 23 BRBS 395 (1990).

     Lastly, claimant avers that the administrative law judge erred in denying the
higher rate sought by Dr. Alo for his appearance at a July 31, 1997, deposition. 
We disagree.  Prior to the initial hearing in this case, Dr. Alo was scheduled to
be deposed on July 31, 1997.  The parties appear to be in agreement that employer's
counsel did not appear at this deposition, and that a second deposition of Dr Alo
was thereafter scheduled.  The administrative law considered Dr. Alo's fee of
$2,000 for his presence at the initial July 31, 1997, deposition to be excessive,
and he thereafter reduced that fee to $600.  As  the administrative law judge acted
within his discretion in limiting Dr. Alo's fee to $600 for his appearance at the
July 31, 1997, deposition and this amount is reasonable, we affirm  it. See
Duhagon v. Metropolitan Stevedore Co., 31 BRBS 98 (1997).

     Accordingly, the administrative law judge's Supplemental Decision and Order -
Awarding Attorney Fees is affirmed.

     SO ORDERED.






                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)We note that claimant, in his amended fee petition to the administrative law judge, failed to correct these deficiencies. Back to Text
2)Claimant's contention that the administrative law judge erred in not awarding the $146.15 charged for the transcript of claimant's deposition is without merit; the administrative law judge awarded claimant the cost of this transcript. See Supplemental Decision and Order at 5, item 9. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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