BRB No. 93-1468

WILLIAM A. MALONE                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   02/28/1996
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

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

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

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

     Employer appeals the Supplemental Decision and Order - Awarding Attorney Fee
(89-LHC-2637) of Administrative Law Judge 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., Muscella v. Sun Shipbuilding & Dry Dock
Co.,, 12 BRBS 272 (1980).

     Claimant's counsel submitted a fee petition to the administrative law judge
requesting an attorney's fee of $2,968.75, representing 23.75 hours of legal
services, at an hourly rate of $125 per hour, as well as $42.25 in expenses, for
work performed before the administrative law judge in connection with claimant's
hearing loss claim.  Employer filed objections to the attorney's fee petition. 
Subsequently, the administrative law judge, after noting employer's objections to
the fee petition, reduced both the number of hours and the hourly rate sought by
counsel and awarded counsel a fee of $2,062.25, representing 18.75 hours of
services rendered at an hourly rate of $110, as well as the expenses requested by
counsel.  


     Employer appeals the administrative law judge's fee award, incorporating by
reference the arguments it made below into its appellate brief.  

     Employer initially contends that claimant's counsel is not entitled to an
attorney's fee payable by employer since employer voluntarily paid benefits to
claimant and thus claimant did not engage in a successful prosecution of his claim. 
Pursuant to Section 28(b) of the Act, 33 U.S.C. §928(b), when an employer
voluntarily pays or tenders benefits and thereafter a controversy arises over
additional compensation due, the employer will be liable for an attorney's fee if
the claimant succeeds in obtaining greater compensation than that agreed to by the
employer. See, e.g., Tait v. Ingalls Shipbuilding, Inc., 24
BRBS 59 (1990); Kleiner v. Todd Shipyards Corp., 16 BRBS 297 (1984).

     In the instant case, employer voluntarily paid claimant permanent partial
disability compensation based on a whole man impairment pursuant to Section
8(c)(23) of the Act, 33 U.S.C. §908(c)(23).  At the hearing, however, employer
contested the issue of whether claimant was entitled to an assessment under Section
14(e) of the Act, 33 U.S.C. §914(e); pursuant to the administrative law
judge's decision, claimant was found to be entitled to additional compensation
under Section 14(e).  Employer is hence liable for claimant's attorney's fees for
services performed at the administrative law judge level, pursuant to Section
28(b), since claimant's counsel succeeded in obtaining additional benefits for
claimant.[1]   Fairley v. Ingalls Shipbuilding,
Inc., 25 BRBS 61 (1991).

     Employer next contends that the fee awarded is excessive, maintaining that the
instant case was routine, uncontested, and not complex.  The administrative law
judge considered the routine and uncomplicated nature of the instant case in
reducing counsel's requested hourly rate from $125 to $110.  We, therefore, reject
employer's contention that the awarded fee must be further reduced on this
criterion because employer has not satisfied its burden of showing that the
administrative law judge abused his discretion in awarding a fee based on an hourly
rate of $110. See Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42 (1995); 
Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); see generally Snowden v.
Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991) (Brown, J., dissenting on other
grounds), aff'd on recon. en banc, 25 BRBS 346 (1992) (Brown, J., dissenting
on other grounds). 

     We next reject employer's objections to the number of hours awarded by the
administrative law judge, as it has not shown that the administrative law judge
abused his discretion in this regard.  See Ross, 29 BRBS at 42;  Maddon
v. Western Asbestos Co., 23 BRBS 55 (1989); Cabral v. General Dynamics
Corp., 13 BRBS 97 (1981).  Moreover, employer's objection to counsel's method of billing in minimum increments of one-quarter hour is rejected since the administrative law judge in the instant case
specifically reduced various entries submitted by counsel from one-quarter hour to
one-eighth hour; thus, the administrative law judge's award conforms to the
criteria set forth in the decisions of the United States Court of Appeals for the
Fifth Circuit in Ingalls Shipbuilding, Inc. v. Director, OWCP [Fairley], No.
89-4459 (5th Cir. July 25, 1990) (unpublished) and Ingalls Shipbuilding, Inc.
v. Director, OWCP [Biggs], No. 94-40066 (5th Cir. Jan. 12, 1995) (unpublished).  

     Finally, we note that the administrative law judge's fee order contains a
mathematical error.  Specifically, in the body of his decision, the administrative
law judge approved 18 hours of services rendered at an hourly rate of $110; in his
order, however, administrative law judge directs employer to pay claimant's counsel
a fee of $2,062.50, representing 18.75 hours of services rendered at an hourly rate
of $110.  We therefore modify the administrative law judge's fee award to reflect
employer's liability for a fee of $1,980, representing 18 hours of approved
services at an hourly rate of $110.

     Accordingly, the administrative law judge's Supplemental Decision and Order -
Awarding Attorney's Fee is modified to reflect employer's liability for an
attorney's fee of $1,980; in all other respects the administrative law judge's fee
award 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's contentions which were not raised below will not be
addressed for the first time on appeal. Bullock v. Ingalls Shipbuilding,
Inc., 27 BRBS 90 (1993) (en banc) (Brown and McGranery, JJ., concurring
and dissenting), modified on other grounds on recon. en banc, 28 BRBS 102
(1994), aff'd mem. sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP
[Biggs], 46 F.2d 66 (5th Cir. 1995); Clophus v. Amoco Production Co.,
21 BRBS 261 (1988).
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