BRB No. 01-0804
ALFRED BOATWRIGHT )
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Claimant-Respondent )
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v. )
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LOGISTEC OF CONNECTICUT, ) DATE ISSUED: 07/12/2002
INCORPORATED )
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and )
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SIGNAL MUTUAL INDEMNITY )
ASSOCIATION )
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Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Compensation Order-Awarding of Attorney Fees of Marcia D.
Finn, District Director, United States Department of Labor.
David A. Kelly (Monstream and May, L.L.P.), Glastonbury, Connecticut,
for claimant.
Christopher J. Field (Field Womack & Kawczynski, L.L.C.), South Amboy,
New Jersey, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Compensation Order-Awarding of Attorney Fees (OWCP No.
01-148527) of District Director Marcia D. Finn 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 was injured on November 12, 1999, when a beam rolled over onto his
right leg and foot. On November 24, 1999, Employer voluntarily initiated payment
of temporary total disability compensation, which it paid for the period from
November 13, 1999 to September 4, 2000, at the compensation rate of $371.64 per
week. Claimant returned to work in September 2000. He filed a claim for benefits
on October 24, 2000. By letter to employer dated January 2, 2001, claimant's
counsel sought to increase claimant's average weekly wage on the previously paid
benefits. By letter to employer dated February 13, 2001, counsel also sought
permanent partial disability benefits pursuant to Section 8(c)(4) of the Act, 33
U.S.C. §908(c)(4), for a five percent impairment to claimant's right foot.
On March 2, 2001, employer paid the requested permanent partial disability benefits
and increased the compensation rate for the period of temporary total disability
to $413.82 per week.
Subsequently, claimant's counsel filed a petition for an attorney's fee for
work performed before the district director, requesting $640.50, representing 3.7
hours of legal services at the hourly rate of $165, and .60 hours of legal
assistant services at the hourly rate of $50. Employer responded, objecting to its
liability for a fee, on the basis that it paid all benefits voluntarily. The
district director summarily awarded the amount requested after reviewing "the fee
application taking into consideration the complexity of the case, the issues
involved and the results obtained, the actual necessary work performed and other
factors including the expertise of the attorney." Order at 1.
On appeal, employer contends that it is not liable for claimant's counsel's
fee inasmuch as it voluntarily accepted the claim as compensable and tendered
benefits accordingly, and that there were no disputed issues between the parties.
Claimant responds, urging affirmance of the district director's fee award.
Under 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 paid or tendered
by employer. See, e.g., Tait v. Ingalls Shipbuilding, Inc., 24 BRBS 59
(1990); Kleiner v. Todd Shipyards Corp., 16 BRBS 297 (1984). In the present
case, although employer voluntarily commenced paying claimant temporary total
disability benefits based on the average weekly wage of $557.47, claimant contended
that a higher average weekly wage applied. In addition, claimant sought permanent
partial disability benefits pursuant to Section 8(c)(4) for a five percent
impairment to his foot. 33 U.S.C. §908(c)(4). Thus, a controversy arose
after employer voluntarily paid benefits and claimant successfully obtained an
increase in his average weekly wage and permanent partial disability compensation
for a five percent impairment to his right foot. Under such circumstances,
employer is properly held liable for claimant's attorney's fee under Section 28(b),
and we affirm the district director's finding that claimant's attorney is entitled
to a fee award to be assessed against employer.[1]
33 U.S.C. §928(b); see generally Caine v. Washington Metropolitan Area Transit
Authority, 19 BRBS 180 (1986). Inasmuch as employer is liable for claimant's attorney's
fee pursuant to Section 28(b), we need not address employer's contentions
concerning Section 28(a).[2]
Accordingly, the Compensation Order-Awarding of Attorney Fees of the district
director is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) 1We reject employer's contention that Section 28(b) is not
applicable as no informal conference was held in this case. This case arises
within the jurisdiction of the United States Court of Appeals for the Second
Circuit, which has not addressed the issue of whether the absence of an informal
conference is an absolute bar to the imposition of fee liability under Section
28(b). Cf. Pool Co. v. Cooper, 274 F.3d 173, 35 BRBS 109(CRT) (5th Cir. 2001) (Fifth Circuit holds that
informal conference is prerequisite to fee liability under Section 28(b)). Following the decision of the United States
Court of Appeals for the Ninth Circuit in National Steel & Shipbuilding Co. v. United States Dept. of
Labor, 606 F.2d 875, 11 BRBS 68 (9th Cir. 1979), that a written recommendation by the district director is not a
prerequisite to fee liability under Section 28(b), the Board has held that the absence of an informal conference does not
preclude fee liability under Section 28(b) if a controversy arises between the parties after employer voluntarily paid benefits,
and claimant gains additional benefits. Caine v. Washington Metropolitan Area Transit Authority, 19 BRBS 180
(1986).
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2) 2We note however, that in Pool Co. v. Cooper, 274 F.3d 173, 35
BRBS 109(CRT) (5th Cir. 2001), the Fifth Circuit imposed fee liability on employer under
Section 28(a) where employer's voluntary payments preceded the claimant's written
claim for compensation, the employer declined to pay further benefits within 30
days of receiving written notice of the claim from the district director, and the
claimant gained additional benefits. In this case, claimant's claim dated October
24, 2000, was filed after employer's voluntary payments ceased, and employer did
not tender additional benefits until March 2, 2001. It is not clear, however, when
employer received written notice of the claim from the district director.
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NOTE: This is an UNPUBLISHED LHCA Document.
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