BRB No. 93-495

NORVELLE NECAISE                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   01/29/1996
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION AND ORDER

     Appeal of the Supplemental Decision and Order Granting Attorney Fees of
     Quentin P. McColgin, Administrative Law Judge, United States Department
     of Labor.

     John F. Dillon (Maples & Lomax, P.A.), Pascagoula, Mississippi, for
     claimant.

     Traci M. Castille (Franke, Rainey & Salloum), Gulfport, Mississippi, for
     employer.

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

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Granting Attorney Fees
(90-LHC-1544) of Administrative Law Judge Quentin P. McColgin 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., Muscella v. Sun Shipbuilding & Dry Dock Co.,
12 BRBS 272 (1980).

     Claimant sought benefits under the Act for a work-related hearing loss. 
Claimant underwent audiometric testing on December 27, 1986, that was interpreted
by Dr. Wold as showing a 13.3 percent noise-related binaural hearing impairment. 
Based on this evaluation, claimant filed a notice of injury with employer on
January 13, 1987.  Claimant also underwent audiometric testing on August 14, 1987,
that was interpreted by Dr. Stanfield as showing a 20.63 percent binaural hearing
impairment.  Employer received formal notice of the claim from the district
director on January 22, 1988, and employer voluntarily paid benefits for a 6 percent whole man impairment on February 5, 1988.[1]   However, a dispute remained regarding employer's
liability for a Section 14(e) penalty, 33 U.S.C. §914(e), and medical
benefits.  Although the case was transferred to the Office of Administrative Law
Judges for resolution, prior to the hearing the parties resolved the disputed
issues and requested that the case be remanded to the district director.

     Subsequently, claimant's attorney filed a petition for an attorney's fee in
the amount of $2,575.75, representing 20.50 hours of legal services at the hourly
rate of $125.  Employer filed objections to the fee petition.  After considering
employer's objections, the administrative law judge reduced the minimum billing
time, when appropriate, to one-eighth of an hour and reduced the hourly rate to
$100.  In addition, the administrative law judge addressed employer's specific
objections and reduced the total hours requested by 8.25, and found the remaining
hours to be reasonable and necessary.  Thus, the administrative law judge awarded
claimant's counsel a fee of $1,225, representing 12.25 hours of legal services at
the hourly rate of $100, plus $13.25 in costs.

     On appeal, employer contends that the administrative law judge erred in
assessing liability for the attorney's fee against employer.  Alternatively,
employer contends that the fee awarded is excessive as this was a routine,
uncontested hearing loss case, and it incorporates by reference into its appellate
brief the arguments it made below.  Claimant responds, urging affirmance of the fee
award.

     Specifically, on appeal, employer contends that it should not be held liable
for claimant's attorney's fee as it voluntarily accepted this claim as compensable
and tendered benefits accordingly.  We disagree.  Employer did voluntarily commence
payment of benefits to claimant within 30 days of the receipt of notice of the
claim from the district director, thereby precluding employer's liability under
Section 28(a) of the Act, 33 U.S.C. §928(a).  Claimant, however, continued to
seek medical benefits pursuant to Section 7, 33 U.S.C. §907, and a penalty
pursuant to Section 14(e).  After the case was referred to the Office of
Administrative Law Judges, but prior to a hearing, the parties resolved the
disputed issues and claimant's counsel was successful in establishing employer's
liability for past medical benefits and a Section 14(e) penalty.  Therefore,
inasmuch as a controversy remained even after employer voluntarily paid benefits
and claimant successfully obtained benefits greater than those voluntarily paid by
employer, we affirm the administrative law judge's finding that claimant's attorney
is entitled to a fee award to be assessed against employer pursuant to Section
28(b) of the Act, 33 U.S.C. §928(b). See generally Fairley v. Ingalls
Shipbuilding, Inc.,  25 BRBS 61 (1991); Rihner v. Boland Marine &
Manufacturing Co., 24 BRBS 84 (1990), aff'd, 41 F.3d 997, 29 BRBS 43
(CRT)(5th Cir. 1995).  In addition, the administrative law judge properly noted
that pursuant to Section 28(b) the attorney's fee need not be limited to the monetary difference between the additional amount awarded and the amount already
paid by employer.  Hoda v. Ingalls Shipbuilding, Inc., 28 BRBS 197
(1994)(McGranery, J., dissenting); Watkins v. Ingalls Shipbuilding, Inc.,
26 BRBS 179 (1993), aff'd mem., 12 F.3d 209 (5th Cir. 1993). 

     Alternatively, employer contends that the lack of complexity of the instant
case mandates a reduction in the amount of the fee awarded to claimant's counsel. 
We disagree. 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, which provides that any attorney's fee approved shall be reasonably
commensurate with the necessary work done, the complexity of the legal issues
involved, and the amount of benefits awarded. See generally Parrott v. Seattle
Joint Port Labor Relations Committee of the Pacific Maritime Ass'n, 22 BRBS 434
(1989).    As the administrative law judge specifically accounted for the lack of
complexity of case in reducing the $125 hourly rate sought to $100, employer's
assertion that the complexity of the case does not warrant the fee awarded is
rejected.  Moreover, employer has not established that the administrative law judge
abused his discretion in awarding an hourly rate of $100, and we accordingly affirm
the hourly rate awarded. See Maddon v. Western Asbestos Co., 23 BRBS 55
(1989).

     We also reject employer's contention that various entries in counsel's fee
petition were either unnecessary or excessive.  The administrative law judge
considered employer's objections, reduced the number of hours requested by 8.25,
and found the remaining services rendered by claimant's counsel to be reasonable
and necessary.  We decline to disturb this rational determination. Maddon,
23 BRBS at 55; Cabral v. General Dynamics Corp., 13 BRBS 97 (1981).

     Accordingly, the Supplemental Decision and Order Granting Attorney Fees is
affirmed.

     SO ORDERED.

                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.
 1)Employer stopped compensation payments on August 16, 1989, due to
claimant's death.
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