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                                 BRB Nos. 98-0599
                                   and 98-0599A


RICHARD  J.  BROWN                      )
                                        )
          Claimant                      )
          Cross-Petitioner              )    DATE ISSUED:   01/21/1999

                                        )
     v.                                 )
                                        )
BRADY-HAMILTON STEVEDORE                )
                                        )
     and                                )
                                        )
FIREMAN'S FUND INSURANCE                )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Respondents             )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Petitioner                    )    DECISION and ORDER


     Appeals of the Decision and Order Awarding Benefits and Supplemental
     Order for Fees and Costs of Henry B.  Lasky, Administrative Law Judge,
     United States Department of Labor.

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

     Carol J.  Molchior (Madden & Crockett), Seattle, Washington, for
     employer/ carrier.
     Samuel J. Oshinsky, Counsel for Longshore (Henry L.  Solano, Solicitor
     of Labor; Carol DeDeo,  Associate Solicitor), Washington, D.C., for the
     Director, Office of Workers' Compensation Programs, United States
     Department of Labor.

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

     PER CURIAM:

     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order Awarding Benefits and claimant appeals the Supplemental
Order for Fees and Costs (97-LHC-152) of Administrative Law Judge Henry B.  Lasky
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).  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 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., Muscella v.  Sun Shipbuilding & Dry Dock
Co., 12 BRBS 272 (1980).

     To briefly recapitulate the lengthy procedural history of this case, claimant
sustained a work-related injury to his back and hips on November 12, 1974, which
aggravated his pre-existing arthritic condition.  In a Decision and Order issued
on June 25, 1981, claimant was awarded compensation for a permanent partial
disability resulting in a 60 percent loss in wage-earning capacity, 33 U.S.C.
§908(c)(21), and employer was awarded Section 8(f) relief, 33 U.S.C.
§908(f); thus, the Special Fund assumed liability for the payment of
compensation for claimant's permanent partial disability award commencing November
24, 1977.[1]   On February 14, 1994, and January
11, 1995, claimant underwent bilateral hip replacement surgery.  On April 23, 1996,
claimant filed a claim for Section 22 modification, 33 U.S.C. §922, seeking
temporary total disability compensation for the period during which he underwent
hip surgery and permanent total disability compensation thereafter based on the
deterioration of his medical condition.  Subsequently, employer filed its own
modification request pursuant to Section 22, seeking to be relieved of further
compensation liability on the basis that claimant's current medical condition is
unrelated to his work-related injuries.

     On December 15, 1997, claimant and employer filed a joint Stipulation in
Support of  Agreed Order in which the parties stipulated that claimant was
temporarily totally disabled from February 14, 1994 to December 29, 1995, and that
employer had paid for claimant's bilateral hip replacement surgeries.  Employer
agreed to pay the difference between the permanent partial disability compensation rate
previously awarded to claimant and the rate for temporary total disability for the
period from February 14, 1994 to December 29, 1995, and further agreed to pay
reasonable attorney's fees to claimant's attorney.  Included in the joint
stipulation filed by claimant and employer was the statement "[P]ayment by the
employer does not constitute a waiver of the employer's position that the surgery
and temporary total disability were not injury-related."  Lastly, employer and
claimant agreed to withdraw their respective requests for Section 22 modification,
with claimant remaining entitled to permanent partial disability compensation from
the Special Fund.

     In a Decision and Order Awarding Benefits issued on December 18, 1997, the
administrative law judge expressly incorporated the joint stipulations filed by
claimant and employer, and ordered employer to pay claimant compensation in the
amount of $7,028, representing the difference between claimant's permanent partial
disability award and the rate for temporary total disability for the period from
February 14, 1994 through December 29, 1995.  The administrative law judge further
ruled that the Section 22 modification requests by claimant and employer are deemed
withdrawn.  Finally, the administrative law judge ruled that the Special Fund shall
continue to pay claimant permanent partial disability compensation.

     Claimant's counsel thereafter submitted a fee petition dated December 18, 1997
for work performed at the administrative law judge level,[2]  requesting a fee of $5,267.70, representing 22 hours of attorney time
billed at $225 per hour, 2.625 hours of legal assistant and law clerk time billed
at $50 per hour, and $186.45 in expenses.  Employer filed objections to the fee
petition.  In his Supplemental Order for Fees and Costs, the administrative law
judge, addressing employer's objections to the fee request, reduced the hourly rate
for attorney time to $150, and disallowed 3.625 hours of the attorney time claimed
for discovery-related work as unnecessary.  Accordingly, the administrative law
judge awarded claimant's counsel a fee of $3,073.95, representing 18.375 hours of
attorney services at $150 per hour, 2.625 hours of legal assistant/law clerk time
at $50 per hour, and $186.45 in costs.  

     On appeal, the Director contends that the administrative law judge erred in
requiring the Special Fund to pay benefits to claimant during claimant's period of
temporary total disability inasmuch as Section 8(f) limits the Special Fund's
liability to the payment of benefits for permanent disability.  The Director avers
that, pursuant to the Board's decision in Sizemore v.  Seal & Co., 23 BRBS
101 (1989), notwithstanding commencement of payments by the Special Fund of
compensation to an employee following an employer's payment of 104 weeks of
permanent disability compensation, employer remains fully liable for any subsequent
periods of temporary disability.  Employer responds that Sizemore, in which
the causation of the claimant's temporary total disability was not at issue, is not
controlling in the instant case in which employer expressly did not waive its
position that claimant's temporary total disability was not related to his work
injury.  In his appeal of the administrative law judge's fee award, claimant
challenges the administrative law judge's disallowance of 3.625 hours of discovery-related services and the administrative law judge's reduction of the hourly rate
for attorney services.  Employer responds, urging affirmance of the fee award.

     We will first address the Director's argument that the administrative law
judge's failure to find employer liable for the full amount of claimant's temporary
total disability benefits is inconsistent with the Board's decision in Sizemore.
In  Sizemore, 23 BRBS at 101, the Board held that Section 8(f) does not exempt
employers from liability for the payment of temporary total disability benefits due
subsequent to the assumption of permanent partial disability liability by the
Special Fund. See 23 BRBS at 103-104.  Specifically, the Board interpreted
Section 8(f) and its implementing regulation, 20 C.F.R. §702.145(b), to
provide that employers are liable for permanent disability compensation for 104
weeks, and for no other permanent disability compensation, but that
employers are also liable for all temporary disability payments whenever the
temporary disability arises. Id. at 105.  We agree with the Director
that the administrative law judge's determination to hold employer in the instant
case liable only for the difference between the claimant's permanent partial
disability compensation rate and the rate for temporary total disability for the
period from February 14, 1994 through December 29, 1995, is contrary to the Board's
decision in Sizemore.  Employer should have been held liable for the full
amount of any work-related temporary total disability compensation to which
claimant was entitled.

     While the Director requests that the Board modify the administrative law
judge's Decision and Order to reflect employer's liability in full for the period
of claimant's temporary total disability, the posture of the case before the Board
precludes us from so doing.  We note that, rather than making an independent
determination as to whether claimant is entitled to compensation for a period of
temporary total disability, the administrative law judge instead issued a Decision
and Order incorporating the stipulations filed by claimant and employer and,
thereafter, deemed their respective modification petitions withdrawn.  While under
certain circumstances it may be permissible for an administrative law judge to
decide a case solely on the basis of the parties' stipulations, in the case at bar,
the stipulations filed by claimant and employer could not properly serve as the
basis for the administrative law judge's decision.  First, the Director, as
representative of the Special Fund, could not be bound by stipulations to which he
was not a party. See 29 C.F.R. §18.51.  Because the Special Fund had
previously assumed liability for the payment of claimant's permanent partial
disability benefits, its rights and liabilities were necessarily affected by
resolution of the issues presented by the Section 22 modification requests.  Thus,
the modification petitions could not be decided on the basis of stipulations
without the participation of the Director.  Secondly, the stipulations filed by
claimant and employer, while purporting to resolve all issues necessary to the
withdrawal of the modification requests, in actuality left unresolved a factual
issue critical to the determination of claimant's entitlement to a period of
temporary total disability.  The inclusion in the stipulations of the statement in
which employer expressly declined to waive its position that claimant's hip
replacement surgery and period of temporary total disability were unrelated to his
work injury meant that causation remained a contested issue.

     Accordingly, we conclude that the administrative law judge's Decision and
Order incorporating the stipulations filed by claimant and employer and deeming the
modification requests withdrawn cannot stand.  We therefore vacate the
administrative law judge's Decision and Order Awarding Benefits and remand the case
to the administrative law judge for consideration of the merits of the case.[3]   If, on remand, the administrative law judge
finds claimant's surgery and period of temporary total disability to be causally
related to his employment and, accordingly, awards claimant temporary total
disability compensation, he must hold employer liable for the totality of the
temporary total disability compensation. See Sizemore, 23 BRBS at 101.

     Lastly, for purposes of adjudicative efficiency, we address claimant's appeal
of the administrative law judge's attorney's fee award, noting that this issue is
contingent on claimant's success on remand. See generally Williams v.  Halter
Marine Service, Inc., 19 BRBS 248, 253-54 (1987).  We hold that claimant's
assertions on appeal are insufficient to meet his burden of proving that the
administrative law judge abused his discretion in disallowing 3.625 hours requested
for discovery-related work. See Maddon v.  Western Asbestos Co., 23 BRBS 55
(1989); Cabral v.  General Dynamics Corp., 13 BRBS 97 (1981).  The
administrative law judge fully set forth the rationale upon which he relied in
concluding that this expenditure of time was unnecessary, and we decline to disturb
his determination.  Similarly, claimant's assertion that the administrative law
judge erred in reducing the attorney hourly rate from $225 to $150 is rejected as
claimant has not met his burden of showing that the $150 rate awarded is
unreasonable. See Ferguson v.  Southern States Cooperative,  27 BRBS 16, 23
(1993); Welch v.  Pennzoil Co., 23 BRBS 395 (1990).  Claimant's challenge
to the administrative law judge's attorney's fee award is therefore rejected.

     Accordingly, the administrative law judge's Decision and Order Awarding
Benefits is vacated, and the case is remanded to the administrative law judge for
consideration of the merits of the case in accordance with this decision.  The
administrative law judge's Supplemental Order for Fees and Costs is affirmed
contingent on claimant's success on remand.

     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 previously had been awarded temporary total disability compensation commencing on November 14, 1974. 33 U.S.C. §908(b). Back to Text
2)We note that claimant's attorney's fee application also included services performed at the district director level. The administrative law judge properly ruled that he lacked jurisdiction to award a fee for work performed before the district director, and this determination is not challenged on appeal by claimant. Our discussion of claimant's fee request, therefore, makes reference only to those hours itemized during the period in which the claim was before the administrative law judge. Our calculation of the number of hours itemized by counsel at the administrative law judge level also excludes the undated 3.5 hours listed as "anticipated time to bring claim to closure;" claimant, on appeal, does not contest the administrative law judge's exclusion of these hours. Back to Text
3)We note that, on remand, the parties may reach a settlement of this case with the participation of the Director and compliance with the regulations, as set forth in 20 C.F.R. §§702.241-243. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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