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                                 BRB No. 99-0394

RICHARD J. HIGGINS                           )    
                                             )
          Claimant-Respondent                )
                                             )
     v.                                      )
                                             )
INTERMARINE, U.S.A.                )
                                             )    DATE ISSUED:   12/23/1999
23, 1999 
     and                                     )
                         )
SIGNAL MUTUAL INDEMNITY       )              
ASSOCIATION, LIMITED               )                   
                         )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order and Supplemental Decision and Order
     Granting Attorney Fees of Robert D. Kaplan, Administrative Law Judge,
     United States Department of Labor.

     Ralph R. Lorberbaum (Zipperer & Lorberbaum, P.C.), Savannah, Georgia,
     for claimant.

     G. Mason White (Brennan, Harris & Rominger), Savannah, Georgia, for   employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order and Supplemental Decision and Order
Granting Attorney Fees (98-LHC-0222) of Administrative Law Judge Robert D. Kaplan
awarding benefits 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).   We must affirm the findings of fact and conclusions of law of the
administrative law judge which are rational, supported by substantial evidence, and
in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  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 law. See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS
272 (1980). 

     Claimant, hired in 1991 to work as a technician in employer's test and trials
department, allegedly aggravated a pre-existing right shoulder condition as a
result of overhead work which he performed for employer, particularly from late
1992 on.[1]   Claimant testified that from time to
time he advised his supervisor, James Stribling, that his right shoulder bothered
him and he recalled that in 1994, employer's physician gave him an injection for
pain in that shoulder.  On December 11, 1996, Dr. Wheeler diagnosed impingement
syndrome and on January 3, 1997, performed arthroscopic surgery on claimant's right
shoulder.

     Following this initial surgery, claimant returned to his regular job on
January 6, 1997, but stated that this work caused his right shoulder to hurt more,
leading Dr. Wheeler to schedule another surgical procedure on that shoulder. 
However, prior to the surgery, on March 31, 1997, claimant fell while working,
injuring his right ankle and leg, as well as his right arm/shoulder as he grabbed
onto some cables while he was falling.[2]  
Claimant stated that as a result of this fall his right shoulder pain intensified. 
Dr. Wheeler performed a decompression of claimant's right shoulder on April 17,
1997, and after a week of vacation claimant returned to light-duty work with
employer on April 28, 1997. On June 1, 1997, claimant was laid-off from employer
for reasons unrelated to his disability, and was not offered another job.  Claimant
eventually obtained employment with the Navy commencing on January 13, 1998,
inspecting the mine ships which employer built.  Claimant filed a claim for
benefits due to his right shoulder injury on July 10, 1997. 

     In his decision, the administrative law judge determined that the claim is not
barred by Section 12, 33 U.S.C. §912, as employer had actual knowledge of
claimant's right shoulder condition prior to his initial surgery on January 3,
1997, that claimant's right shoulder condition is causally related to his work for
employer, and that employer, in terminating claimant from its employ, did not
violate Section 49 of the Act, 33 U.S.C. §948a.  Accordingly, the
administrative law judge concluded that claimant is entitled to temporary total
disability benefits under Section 8(b), 33 U.S.C. §908(b), from April 17,
1997, to April 28, 1997, and from June 11, 1997, to January 13, 1998, as well as
to medical benefits for all injuries related to his March 31, 1997, injury.[3] 

     Claimant's counsel thereafter filed an application for an attorney's fee with
the administrative law judge, requesting a fee totaling $19,912.50, representing
66.375 hours of attorney time at an hourly rate of $300, plus $1,261.90 in
expenses.  In his Supplemental Decision and Order Granting Attorney Fee, the
administrative law judge awarded a total of  $7,818.75, representing  31.275 hours
at an hourly rate of $250, plus  expenses of $903.40.

     On appeal, employer challenges the administrative law judge's findings that
the claim is not barred by Section 12, that claimant's injury is work-related, and
that claimant  is entitled to temporary total disability benefits.  Employer also
appeals the administrative law judge's attorney's fee award.  Claimant responds,
urging affirmance. 

                                Section 12

     Employer initially asserts that the administrative law judge erred in finding
that it had knowledge of the relationship between claimant's right shoulder injury
and his alleged work-related injury of January 3, 1997, prior to July 10, 1997, and
thus, erred in concluding that claimant's failure to give notice of his injury is
excused by Section 12(d)(1), 33 U.S.C. §912(d)(1).  Employer avers that while
the record shows that it had knowledge of the right shoulder injury claimant
sustained in the Navy and that claimant was having shoulder surgery, there is no
evidence relating claimant's shoulder condition to his work for employer. 
Moreover, employer argues that as claimant submitted his medical bills for the
January 3, 1997, surgery to employer's group health insurance plan and explicitly
indicated on those forms that his reason for seeing a physician was not related to
any injury at work is sufficient to rebut the Section 20(b), 33 U.S.C.
§920(b), presumption that employer had knowledge of claimant's work-related
condition.

     Under Section 12(a), 33 U.S.C. §912(a), an employee in a traumatic injury
case is required to notify the employer of his work-related injury within 30 days
after the date of injury or the time when the employee was aware, or in the
exercise of reasonable diligence or by reason of medical advice should have been
aware, of the relationship between his injury and employment. See Bechtel
Associates, P.C. v.  Sweeney, 834 F.2d 1029, 20 BRBS 49 (CRT)(D.C. Cir. 1987);
 Bath Iron Works Corp. v. Galen, 605 F.2d 583, 10 BRBS 863 (1st Cir. 1979). 
The failure to provide timely notice pursuant to Section 12(a) will bar a claim
unless such failure is excused under Section 12(d), 33 U.S.C. §912(d)(1994),
which provides alternative bases for excuse either where employer  had knowledge
of the injury or was not prejudiced by the failure to give timely notice. Sheek
v. General Dynamics Corp., 18 BRBS 151 (1986), modifying on recon. 18
BRBS 1 (1985).  It is well-established that to have "knowledge" under Section
12(d), employer must have knowledge that the injury is work-related and reason to
believe that compensation liability is possible. Boyd v. Ceres Terminals,
30 BRBS 218 (1997); Williams v. Nicole Enterprises, Inc., 19 BRBS 66 (1986). 
The implementing regulation states that "actual knowledge" of the injury is deemed
to exist if claimant's immediate supervisor is aware of the injury.  20 C.F.R.
§702.216.  The Board and courts have recognized that application of the
Section 12(d)(1) knowledge exception may be precluded where claimant  has
previously certified on his group health insurance form that his injury was not
work-related.  See Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d
286. 291, 14 BRBS 705, 712 (3d Cir. 1982); Boyd, 30 BRBS at 218; Addison
v. Ryan-Walsh Stevedoring Co., 22 BRBS 32 (1989). 

     In the instant case, claimant did not give notice of injury until he filed his
claim on July 10, 1997.  The administrative law judge did not determine claimant's
"date of awareness," thus triggering claimant's duty to give notice under Section
12(a), but found that employer had knowledge of claimant's injury under Section
12(d)(1), based on the testimony of claimant's supervisor, Mr. Stribling, that
while working claimant would from time to time complain of right shoulder pain,
claimant's testimony that he informed Mr. Stribling prior to January 3, 1997, that
he was having surgery on his right shoulder, and the uncontradicted fact that
around 1994, claimant was given an injection into his right shoulder by employer's
physician on its premises.  The administrative law judge, however, did not
explicitly consider the evidence of record concerning whether employer was aware
of the work-relatedness of claimant's condition, i.e., that both claimant
and Mr. Stribling testified that claimant never associated, in any way, his right
shoulder pain to his work duties with employer, and claimant submitted his medical
bills for the January 3, 1997, surgery to employer's group health insurance plan,
explicitly indicating therein that his reason for seeking medical treatment is not
related to any injury at work.

     We nevertheless hold that any error committed by the administrative law judge
in failing to address all of the relevant evidence pursuant to Section 12(d)(1) is
harmless, since, as a matter of law, employer was not prejudiced by claimant's
failure to give timely written notice of the injury.  It is employer's burden to
establish prejudice with more than a mere conclusory claim of its inability to
investigate the claim while it was fresh.  Kashuba v. Legion Insurance Co.,
139 F.3d 1273, 32 BRBS 62 (CRT)(9th Cir. 1998), cert. denied, 119 S. Ct.
866 (1999); Jones Stevedoring Co. v. Director, OWCP, 133 F.3d 683, 31 BRBS
178 (CRT)(9th Cir. 1997); ITO Corp. v. Director, OWCP, 883 F.2d 422, 22 BRBS
126 (CRT) (5th Cir. 1989).  In this case, there is no evidence that employer was
unable to effectively investigate the injury or to provide medical services.[4]   See generally Kashuba, 139 F.3d at 1273,
32 BRBS at 62 (CRT); Jones Stevedoring Co., 133 F.3d at 683, 31 BRBS at 178
(CRT); Bustillo v. Southwest Marine, Inc., 33 BRBS 15 (1999); Boyd,
30 BRBS at 222.  Accordingly, the administrative law judge's finding that Section
12 does not bar claimant's entitlement to benefits is affirmed.  

                               Section 20(a)

     Employer next argues that the evidence of record is insufficient to invoke the
Section 20(a) presumption, 33 U.S.C. §920(a).  Additionally, employer asserts
it established the lack of any casual nexus between claimant's right shoulder
condition and his job duties with employer, and therefore rebutted the presumption. 
In support of its contention, employer cites claimant's testimony that he has
always had problems with his right shoulder since injuring it in 1968, that he
never made any mention to Mr. Stribling that his injury was work-related, and the
statement by claimant's own treating physician, Dr. Wheeler, that he cannot state
within a reasonable degree of medical certainty that claimant's right shoulder
condition and the subsequent need for surgery is related to his work with employer.

     In the instant case, the administrative law judge properly determined that
claimant is entitled to the Section 20(a) presumption as it is undisputed that
claimant sustained a harm, i.e., a right shoulder injury for which he
underwent two surgical procedures, and claimant has shown that working conditions,
i.e., overhead work, existed at employer's facility which could have
aggravated his pre-existing right shoulder condition. See Quinones v. H.B.
Zachery, Inc., 32 BRBS 6 (1998); Konno v. Young Brothers, Ltd., 28 BRBS
57 (1994).  With regard to rebuttal, the administrative law judge correctly
observed that "employer has provided no evidence to rebut this presumption,"
Decision and Order at 7, as there is no evidence in the record, including
claimant's testimony and Dr. Wheeler's opinion, that claimant's injury was not
aggravated by his employment. See generally Manship v. Norfolk & Western
Ry. Co., 30 BRBS 175, 179 (1996).  We therefore affirm the administrative law
judge's determination that claimant's right shoulder injury is work-related. 



                                Disability

     Employer further contends that the administrative law judge erred in awarding
temporary total disability benefits.  In light of our affirmance of the
administrative law judge's findings that the instant claim is not barred pursuant
to Section 12, and that claimant's right shoulder injury is work-related,
employer's contention that claimant is not entitled to temporary total disability
benefits from April 17, 1997, to April 28, 1997, on these bases is without merit. 
As for the second period of temporary total disability, June 11, 1997 to January
13, 1998, after determining, based on Dr. Wheeler's testimony, that claimant could
not perform his regular work with employer after April 17, 1997,  the
administrative law judge determined that while the light duty job employer provided
claimant beginning on April 28, 1997, constituted suitable alternate employment,
employer did not show that suitable alternate employment existed after June 11,
1997, when claimant was laid-off for economic reasons, until January 13, 1998, when
claimant was hired by the Navy.  Citing Mendez v. National Steel & Shipbuilding
Co., 21 BRBS 22 (1988), the administrative law judge specifically found that
claimant's lay-off from his light duty job with employer was not due to his
misfeasance, and thus concluded that employer could not rely on that job to meet
its burden of establishing the availability of suitable alternate employment after
the job was made unavailable.  This finding is in accordance with law and is
affirmed. Norfolk Shipbuilding & Dry Dock Corp. v. Hord, 193 F.3d 797 (4th
Cir. 1999);[5]   Vasquez v. Continental Maritime
of San Francisco, Inc., 23 BRBS 428 (1990); Mendez, 21 BRBS at 22.  The
administrative law judge's award of temporary total disability benefits is
therefore affirmed.

         Supplemental Decision and Order Granting Attorney Fees  

     Employer's contentions that the administrative law judge erred in awarding
claimant's counsel an hourly rate of $250 and that the administrative law judge
erred in awarding an attorney's fee in this case since claimant is not entitled to
benefits on his claim are without merit.  First, in considering the hourly rate
requested, the administrative law judge agreed with employer's contention that the
$300 per hour rate requested by claimant's counsel is excessive, and after
considering evidence of prior fees received by claimant's counsel in similar
cases,[6]  the administrative law judge reduced the
hourly rate requested, and concluded that a fee of $250 per hour is reasonable.
See Moore v. Universal Maritime Corp., 33 BRBS 54 (1999).  Second, our
affirmance of the administrative law judge's award of benefits in the instant case
renders moot employer's contention that it is not liable for any attorney's fee.
See generally Mowl v. Ingalls Shipbuilding, Inc., 32 BRBS 51 (1998).  

     Accordingly,  the administrative law judge's Decision and Order and
Supplemental Decision and Order Granting Attorney Fees are 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 originally injured his right humerus and shoulder in 1968 while he was in the Navy, and he testified that his right shoulder would occasionally cause him pain when he did overhead work. Claimant testified that while at the beginning of his employment he used a computer to write test procedures, he began, in the latter part of 1992, to go onto ships and physically check out the electrical systems, including their overhead electrical cables. Back to Text
2)Claimant did not seek any disability benefits for his ankle or leg injuries. Back to Text
3)The administrative law judge also found that claimant is not entitled to any permanent partial disability benefits or a nominal award as a result of his injuries. Back to Text
4)Employer's only mention of prejudice before the administrative law judge is in its post-hearing brief, wherein it states that claimant's failure to provide timely notice prejudiced employer's rights since if timely notice was provided, it is certainly possible that alternative work could have been provided to claimant. Employer's Post-Hearing Brief at 10. This is insufficient evidence of prejudice as an employer may attempt to establish the retroactive availability of suitable alternate employment. See generally Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS 89 (CRT)(9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991). Back to Text
5)In Norfolk Shipbuilding & Dry Dock Corp. v. Hord, 193 F.3d 797 (4th Cir. 1999), the United States Court of Appeals for the Fourth Circuit held that in order to rebut a worker's prima facie case that the worker was totally disabled during a layoff period, an employer must do more than point only to the one internal light-duty job that the employee held prior to being laid off. The Fourth Circuit continued by stating that in the context of a layoff from internal post-injury employment, as with all claims of total disability under the Act, an employer can satisfy its burden by demonstrating that there exists a range of jobs which the worker is realistically capable of securing and performing, and which are reasonably available in the open market. Back to Text
6)Specifically, that claimant's counsel was awarded an hourly rate of $200 in two earlier cases decided under the Act in 1994 and 1992. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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