BRB No. 93-1542
JEFFRIE R. BROWN )
)
Claimant-Respondent )
)
v. )
)
INGALLS SHIPBUILDING, ) DATE ISSUED: 02/15/1996
INCORPORATED )
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Supplemental Decision and Order Awarding Attorney Fees of
James W. Kerr, Jr., Administrative Law Judge, United States Department
of Labor.
Rebecca J. Ainsworth and John F. Dillon (Maples & Lomax, P.A.),
Pascagoula, Mississippi, for claimant.
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 Fees
(88-LHC-3612) 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 performed on July 16, 1987, which revealed a
13.65 percent binaural hearing impairment. On February 4, 1988, employer commenced
voluntary payment of compensation for a 13.65 percent binaural hearing loss based
on an average weekly wage of $302.66. The case was referred for a formal hearing
on September 16, 1988. Prior to the formal hearing, on May 3, 1989, employer
voluntarily paid permanent partial disability benefits for a 13.65 percent binaural
hearing loss based on an average weekly wage of $479.10.
In his Decision and Order, the administrative law judge accepted the parties'
stipulation that claimant suffers from a 13.65 percent binaural hearing loss and
determined that as claimant's hearing loss was work-related, he was entitled to
compensation pursuant to 33 U.S.C. §908(c)(13)(B) based on the stipulated
average weekly wage of $479.10. The administrative law judge further determined,
over employer's objection, that claimant is entitled to an assessment under Section
14(e) of the Act, 33 U.S.C. §914(e).
Claimant's counsel sought an attorney's fee of $3,053.25, representing 24
hours of services at $125 per hour, and $22 in expenses for work performed before
the administrative law judge in connection with claimant's hearing loss claim. The
administrative law judge awarded counsel a fee of $1,974.50, representing 17.75
hours of services at an hourly rate of $110, plus expenses of $22. Employer
appeals the administrative law judge's fee award, incorporating by reference the
arguments it made below into its appellate brief. Claimant, incorporating his
reply brief below, responds, urging affirmance of the fee award.
On appeal, employer initially contends that under Section 28(b) of the Act,
33 U.S.C. §928(b), it should not be liable for an attorney's fee after
February 4, 1988, because employer commenced voluntary payment of compensation as
of that date and claimant's counsel's efforts thereafter did not result in the
successful prosecution of the hearing loss claim.
In the instant case, employer voluntary paid claimant for a 13.65 percent
binaural hearing loss based upon average weekly wage of $302.66 prior to referral.
While the case was pending before the administrative law judge, employer agreed to
pay claimant compensation based on the higher average weekly wage of $479.10 and
to accept liability for his medical expenses. Moreover, as a result of counsel's
effort before the administrative law judge, claimant ultimately prevailed, over
employer's objection, in establishing claimant's entitlement to an assessment under
Section 14(e). As claimant's counsel was successful in obtaining additional
compensation for claimant while the case was before the administrative law judge,
we affirm the administrative law judge's determination that employer is liable for
claimant's attorney's fee pursuant to Section 28(b). See Rihner v. Boland Marine
& Manufacturing Co., 24 BRBS 84 (1990), aff'd, 41 F.3d 997, 29 BRBS 43
(CRT) (5th Cir. 1995).
Employer's objections to the number of hours and hourly rate awarded are
rejected, as it has not shown that the administrative law judge abused his
discretion in this regard. See Ross v. Ingalls Shipbuilding, Inc., 29 BRBS
42 (1995); 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. Although the administrative law judge erred in
finding this method of billing permissible, this error is harmless as his 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).
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); Clophus v. Amoco Production Co., 21 BRBS 261 (1988).
Accordingly, the administrative law judge's Supplemental Decision and Order
Awarding 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
NOTE: This is an UNPUBLISHED LHCA Document.
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