BRB Nos. 95-728
and 95-728A
ALFRED JAMES )
)
Claimant-Respondent )
Cross-Respondent )
)
v. )
)
CERES GULF, INCORPORATED ) DATE ISSUED: 02/29/1996 )
Self-Insured )
Employer-Respondent )
Cross-Petitioner )
)
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
Decision and Order Awarding Attorney Fees of C. Richard Avery,
Administrative Law Judge, United States Department of Labor.
William S. Vincent, Jr., and William J. Delsa, New Orleans, Louisiana,
for claimant.
Kathleen K. Charvet and Susan S. Harper (McGlinchey, Stafford, Cellini
& Lang), New Orleans, Louisiana, for employer/carrier.
Michael S. Hertzig (J. Davitt McAteer, Acting Solicitor of Labor, Carol
De Deo, Associate Solicitor; Janet R. Dunlop, Counsel for Longshore),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order - Awarding Benefits and employer appeals the Supplemental
Decision and Order Awarding Attorney Fees (87-LHC-1492) of Administrative Law Judge
C. Richard Avery 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 if they 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 and Dry Dock Co., 12 BRBS 272 (1980).
This case is on appeal to the Board for the second time. Claimant injured his
back while working for employer as a grain stevedore on July 9, 1986. In the first
decision and order, Administrative Law Judge Parlen L. McKenna awarded claimant
temporary total disability benefits from July 9, 1986 to January 1, 1987. Claimant
filed a motion for reconsideration. In the Decision and Order on Motion for
Reconsideration, the administrative law judge awarded temporary total disability
benefits from July 9, 1986 and continuing based on a doctor's opinion he had
previously rejected. Employer appealed to the Board, contending that the decision
on reconsideration was invalid because the administrative law judge was no longer
with the Department of Labor at the time he issued his decision, and, in the
alternative, that the administrative law judge erred in summarily accepting the
doctor's opinion and in determining suitable alternate employment was not
available. In James v. Ceres Gulf, Inc., BRB No. 88-3331 (July 30,
1993)(unpublished), the Board rejected employer's first contention, and remanded
the case for the administrative law judge to provide adequate explanations for his
findings on maximum medical improvement and the availability of suitable alternate
employment.
In the decision on remand, Administrative Law Judge C. Richard Avery found
that since the issuance of Judge McKenna's last decision, claimant underwent neck
surgery, and it was necessary to reopen the record to admit new evidence on
claimant's disability status. The administrative law judge found that the parties
stipulated, inter alia, that claimant reached maximum medical improvement
on May 8, 1990. The sole remaining issue for adjudication was employer's
entitlement to Section 8(f), 33 U.S.C. §908(f), relief. The
administrative law judge awarded claimant temporary total disability benefits from
July 9, 1986 to May 8, 1990, and permanent total disability benefits from May 8,
1990 and continuing. The administrative law judge found employer was entitled to
Section 8(f) relief. Further, the administrative law judge stated that claimant's
average weekly wage on the date of injury should be adjusted as of October 1, 1991
to reflect prior cost-of-living adjustments pursuant to the decision of the United
States Court of Appeals for the Fifth Circuit in Holliday v. Todd Shipyards
Corp., 654 F.2d 415, 13 BRBS 741 (5th Cir. 1981). 33 U.S.C. §910(f);
Decision and Order at 13.
On November 16, 1994, claimant filed two attorney's fee petitions, one
covering the period from May 15, 1987 through October 3, 1988 when Judge McKenna
presided over the case, and the other covering the period from August 9, 1993
through November 9, 1994 when Judge Avery presided over the case. The first fee
petition was for $7,718.75, representing 61.75 hours at an hourly rate of $125,
plus $3,986.56 in costs. The second fee petition was for $16,537.50, representing
110.25 hours at an hourly rate of $150, plus $857.56 in costs. Employer did not
submit any objections to the fee petitions. The administrative law judge
considered that employer submitted no objections, found both fee petitions
reasonable, and granted claimant the requested fees totalling $24,256.25, plus
$4,844.12 in costs.
On appeal, the Director contends that the administrative law judge erred in
awarding Section 10(f) adjustments occurring prior to the date of permanency
pursuant to Holliday, 654 F.2d at 415, 13 BRBS at 741, as that case was
overruled by the Fifth Circuit in Phillips v. Marine Concrete Structures,
Inc., 895 F.2d 1033, 23 BRBS 36 (CRT)(5th Cir. 1990) (en banc). The
Director contends that claimant's entitlement to Section 10(f) adjustments
commences on October 1, 1990 in this case.[1] BRB
No. 95-728. Claimant and employer have responded to this appeal by agreeing that
claimant is entitled to Section 10(f) adjustments only as of October 1, 1990. In
its appeal, employer challenges the administrative law judge's award of an
attorney's fee. BRB No. 95-728A. Claimant responds, urging affirmance of the fee
award.
Initially, we hold that the administrative law judge erred in applying the
holding of Holliday to this case. In Holliday, the Fifth Circuit
held that claimants, upon becoming permanently totally disabled, are entitled to
an increase in payments reflecting cost-of-living adjustments that accrued during
prior periods of temporary disability. Subsequently, the Fifth Circuit overruled
its decision in Holliday and held that claimants are not entitled to Section
10(f) adjustments during previous periods of temporary total disability.
Phillips, 895 F.2d at 1033, 23 BRBS at 36 (CRT). Accord Bowen v.
Director, OWCP, 912 F.2d 348, 24 BRBS 9 (CRT) (9th Cir. 1990); Lozada v.
Director, OWCP, 903 F.2d 168, 23 BRBS 78 (CRT)(2d Cir. 1990); contra
Director, OWCP v. Hamilton, 890 F.2d 1143 (11th Cir. 1989); Brandt v.
Stidham Tire Co., 785 F.2d 329, 18 BRBS 73 (CRT) (D.C. Cir. 1986). As this
case arises within the jurisdiction of the Fifth Circuit, claimant's entitlement
to Section 10(f) adjustments commences on October 1, 1990, which is the first
October 1 after claimant became entitled to permanent total disability benefits.
33 U.S.C. §910(f). The administrative law judge's decision and order is
accordingly modified.
In its appeal, employer contends the administrative law judge erroneously held
it liable for claimant's attorney's fee because claimant did not successfully
prosecute his claim in that the only issue at the hearing was employer's
entitlement to Section 8(f) relief. Additionally, employer contends that the
attorney's fee petitions were not sufficiently specific, that time spent on certain
entries was excessive, that claimant was erroneously reimbursed for entries dated
July 10 and July 11, 1994 which included review of employer's Section 8(f)
applications, and that the administrative law judge erroneously determined that
employer is responsible for the fees of two attorneys at the formal hearing.[2] Claimant responds that employer failed to object
to the fee petitions before the administrative law judge and cannot raise
objections for the first time on appeal. Employer replies, contending that
regardless of whether it submitted objections below, claimant cannot receive an
award of an attorney's fee where, as here, claimant has not successfully prosecuted
his claim. In response, claimant contends that his attorney's services were
necessary because it was only one week before the formal hearing that the parties
agreed that only Section 8(f) would be litigated, and that if Section 8(f) relief
were denied, the other issues would be litigated. Claimant also states that
employer ceased paying compensation at the end of July 1993.
Under Section 28(b), 33 U.S.C. §928(b), when employer pays or tenders
compensation without an award, employer remains liable for an attorney's fee if the
employee successfully obtains greater compensation than that originally paid or
tendered by employer. Caine v. Washington Metropolitan Area Transit
Authority, 19 BRBS 180 (1987). In order to preserve an issue for appeal,
employer must first raise objections to the fee request before the administrative
law judge. Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42, 43 (1995);
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 in pertinent part
mem. sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.3d 66
(5th Cir. 1995). As employer did not object to the fee requests before the
administrative law judge, we decline to address employer's contentions on appeal.
Id. We note, however, that employer ceased compensation payments on July
30, 1993, Cl. Ex. 1 at 4, and that, despite their stipulations, the parties agreed
that the issues of the nature and extent of claimant's disability would require
further litigation if employer's claim for Section 8(f) relief were denied. See
Cl. Ex. 9 at 1; Tr. at 17, 24-25. The case before the administrative law judge
therefore was not necessarily limited to the issue of Section 8(f), and claimant's
counsel was successful in obtaining benefits greater than that previously paid by
employer. See Boland Marine & Manufacturing Co. v. Rihner, 41 F.3d 997, 29
BRBS 43 (CRT) (5th Cir. 1995); 33 U.S.C. §928(b). We therefore affirm the
Supplemental Decision and Order Awarding Attorney Fees.[3]
Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is modified with regard to claimant's entitlement to Section 10(f)
adjustments, and is otherwise affirmed. The Supplemental Decision and Order
Awarding Attorney Fees is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)In response to a Show Cause Order issued by the Board on July 7,
1995, the Director submitted a "Motion for Summary Reversal in Lieu of Brief." We
accept this response to the Show Cause Order, and we will consider the contentions
as her brief in support of her appeal.
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2)Employer apparently refers to the fact that at the July 18, 1994
hearing attorneys William S. Vincent and William Delsa were present on claimant's
behalf. In the fee petition, however, only Mr. Vincent's name is mentioned.
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3)Claimant's motion for sanctions against employer is denied.
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NOTE: This is an UNPUBLISHED LHCA Document.
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