BRB No. 93-1470

BURLEN W. STRINGER                      )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   02/21/1996
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.

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order-Awarding Attorney's Fee
(88-LHC-1777) 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 sought benefits under the Act for a noise-induced work-related
hearing loss based on an audiogram administered on September 8, 1987, which
revealed a 13.8 percent binaural impairment.  Thereafter, employer voluntarily paid
permanent partial disability compensation to claimant for a 13.8 percent binaural
impairment on June 8, 1988, pursuant to Section 8(c)(13) of the Act, 33 U.S.C.
§908(c)(13).  

     After a formal hearing, at which time employer contested the issues of the
extent of claimant's work-related hearing loss and its liability for penalties
under Section 14(e) of the Act, 33 U.S.C. §914(e), the administrative law
judge awarded claimant permanent partial disability compensation for a 13.8 percent
binaural impairment, pursuant to Section 8(c)(13) of the Act.  Additionally, the
administrative law judge found that claimant was entitled to a Section 14(e), 33
U.S.C. §914(e), assessment.  Thereafter, in an order granting employer's
motion for reconsideration, the administrative law judge modified his decision to
reflect claimant's entitlement to permanent partial disability compensation for a
5 percent whole man impairment, pursuant to Section 8(c)(23) of the Act, 33 U.S.C.
§908(c)(23).

     Claimant's counsel filed a fee petition for work performed before the
administrative law judge in which he requested an attorney's fee of $2,365.75,
representing 18.5 hours of legal services performed at an hourly rate of $125, and
$53.25 in expenses.  Employer filed objections to the fee petition.  In a
Supplemental Decision and Order, the administrative law judge considered employer's
specific objections to the fee request, reduced both the number of hours and the
hourly rate requested by counsel, and thereafter awarded claimant's counsel an
attorney's fee of $1,950.75, representing 17.25 hours of legal services performed
at a rate of $110 per hour, and $53.25 in expenses.

     On appeal, employer challenges the attorney's fee awarded to claimant's
counsel by the administrative law judge, incorporating the objections 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 contested the issue of whether claimant was
entitled to an assessment under Section 14(e) of the Act; pursuant to the
administrative law judge's decision, claimant was found to be entitled to
additional compensation under Section 14(e).  Employer is thus 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]   See
Fairley v. Ingalls Shipbuilding, Inc., 25 BRBS 61 (1991).

     Employer also 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.  Moreover, contrary to
employer's contention, this was not an uncontested case as employer controverted
the issue of the extent of claimant's hearing loss, as well as the issue of Section
14(e) penalties before the administrative law judge.  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);
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).  Employer's specific objection to counsel's method
of billing in minimum increments of one-quarter hour also is rejected, as the
administrative law judge 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 14 hours of services rendered at an hourly rate of $110; in his
order, however, the administrative law judge directs employer to pay claimant's
counsel a fee of $1,897.50, representing 17.25 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 $1,540, representing 14 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 $1,540; 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.3d 66 (5th Cir. 1995)(unpublished); Clophus v. Amoco
Production Co., 21 BRBS 261 (1988).
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