BRB No. 99-0937
JERALD K. GOFF )
)
Claimant-Petitioner )
)
v. )
)
INGALLS SHIPBUILDING, )
INCORPORATED ) DATE ISSUED: 06/06/2000
)
and )
)
TRAVELERS INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Compensation Order Award of Attorney's Fees of Jeana F.
Jackson, District Director, United States Department of Labor.
Robin Reid Boswell (Nelson & Boswell, P.A.), Pascagoula, Mississippi,
for claimant.
Traci M. Castille (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
Mississippi, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Compensation Order Award of Attorney's Fees (OWCP No. 6-96430) of District Director Jeana F. Jackson 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 will not be set aside unless shown by the
challenging party to be arbitrary, capricious, an abuse of discretion or not in
accordance with the law. Roach v. New York Protective Covering Co., 16 BRBS
114 (1984); Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Claimant requested authorization for hearing aids from employer on March 19,
1998, and repeatedly sought a change in treating physician to Dr. Gacek. In
response, employer denied claimant's numerous requests for a change in physician,
offered to settle the claim, and in August 1998, allegedly gave initial
authorization for claimant to purchase the hearing aids subject to his submission
of an estimate. Claimant underwent a hearing aid cost analysis and assessment
with Dr. Stanfield on September 23, 1998, and employer authorized claimant to
purchase the hearing aids in a letter dated October 12, 1998.
Claimant's counsel requested a fee for five hours of services rendered on
claimant's behalf between March 18, 1998, and November 30, 1998, at an hourly rate
of $175, plus $6 in expenses, for a total fee of $881. Employer objected, arguing
that it should not be liable for an attorney's fee for services performed after
August 21, 1998, asserting on that date it authorized the purchase of the hearing
aids, or for any time spent in claimant's failed attempt to change his treating
physician. The district director reduced the hourly rate to $100, and disallowed
all of the time requested, 1.375 hours, for work performed after August 21, 1998.
Accordingly, the district director awarded a fee of $362.50, representing 3.625
hours at an hourly rate of $100, payable by employer.
On appeal, claimant contends that employer did not actually authorize payment
until October 12, 1998, as it required claimant to undergo an additional evaluation
prior to final authorization on that date. Counsel asserts that services from
August 27, 1998, to October 5, 1998, are related to obtaining this approval and
services thereafter are related to review of employer's letter and advising
claimant. Counsel's contentions have merit.
In the instant case, the district director did not make a specific finding as
to when employer finalized payment for claimant's hearing aids.[1] A review of the limited record before the Board
indicates two potential dates for authorization, either August 21, 1998, when
employer gave initial authorization, or October 12, 1998, when after claimant
submitted the requested information, employer gave final approval. As it is not
clear that this claim was fully resolved by August 21, 1998, we must remand this
case for further findings. Tait v. Ingalls Shipbuilding, Inc., 24 BRBS
59 (1990).
Moreover, even if employer authorized payment on August 21, 1998, that date
does not automatically cut off a fee for services performed thereafter. In
Everett v. Ingalls Shipbuilding, Inc., 32 BRBS 279 (1998), aff'd on
recon. en banc, 33 BRBS 38 (1999), the Board vacated the district director's
denial of all fees for services performed after the date employer paid benefits,
as the district director rejected all services on the ground that no further
benefits were obtained without first considering the necessity and reasonableness
of time requested as it may relate to services to "wind-up" the case. See also
Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995). On remand, the
Board instructed the district director to provide an adequate discussion of this
time and assess the necessity and reasonableness of the work as counsel is entitled
to a fee for reasonable "wind-up" services payable by employer.[2] See Everett, 32 BRBS at 280.
Thus, on remand in the instant case, after the district director determines
the date when full payment to claimant occurred, she must then consider the
necessity and reasonableness of any time requested for an attorney's fee
subsequent to that date as it may relate to any services performed to "wind-up" this case.[3] Id.
Accordingly, the district director's award of an attorney's fee is vacated,
and the case remanded for further consideration consistent with this opinion.
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 fact, the district director's form order states only that
"[t]he employer's counsel has made several specific objections to the number of
hours submitted. To the extent that the undersigned disallows any time requested,
the objections are sustained. Otherwise the objections are rejected and the hours
requested are found to be reasonable." A list of dates and time disallowed
follows. Compensation Order Award of Attorney's Fees at 1.
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2)Employer argues that in light of the decision by the United
States Court of Appeals for the Fifth Circuit in Wilkerson v. Ingalls
Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150 (CRT) (5th Cir. 1997), it cannot
be liable for an attorney's fee assessed for "wrap-up" time once it has paid
benefits. In Wilkerson, employer began paying claimant compensation, but
claimant thereafter continued to pursue his claim before an administrative law
judge seeking additional benefits, prejudgment interest, a Section 14(e) penalty,
33 U.S.C. §914(e), and an attorney's fee. The Fifth Circuit held that
claimant was not entitled to any additional compensation, or to interest and a
Section 14(e) assessment, and thus concluded that claimant's counsel is not
entitled to recover an attorney's fee for the work performed in pursuing claimant's
unsuccessful claim. Wilkerson, 125 F.3d at 908, 31 BRBS at 153 (CRT). In
contrast to Wilkerson, claimant in the instant case successfully obtained
additional compensation, i.e., costs associated with his hearing aids,
thereby entitling counsel to an attorney's fee.
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3)For instance, even if authorization was provided by employer
as early as August 21, 1998, it appears as though at least some of the time
expended by claimant's counsel subsequent to that date, e.g., review of the
hearing aid estimate and transmission of said estimate to employer, as well as time
spent reviewing employer's subsequent authorization and advising claimant of said
authorization, may qualify as compensable "wind-up" services.
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NOTE: This is an UNPUBLISHED LHCA Document.
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