BRB No. 99-0945
CEOLA WITHERSPOON )
)
Claimant-Petitioner ) DATE ISSUED: 06/06/2000
)
v. )
)
INGALLS SHIPBUILDING, )
INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Compensation Order Award of Attorney's Fees of Jeana F.
Jackson, District Director, United States Department of Labor.
Scott O. Nelson (Nelson & Boswell), Pascagoula, Mississippi, for claimant.
Traci M. Castille (Franke, Rainey & Salloum), Gulfport, Mississippi, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Compensation Order Award of Attorney's Fees (Case No. 6-157292) 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 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 filed a claim for benefits under the Act for a work-related hearing
loss, and employer voluntarily paid benefits in 1994. Thereafter, claimant
requested authorization for hearing aids from employer, and additional compensation
based on her calculation of her average weekly wage. Employer, on July 19, 1995,
accepted liability and voluntarily paid the requested additional compensation and
medical expenses, prior to any formal adjudication. Claimant's counsel thereafter
filed an attorney's fee petition before the district director seeking a total fee
of $1,688, representing 9.25 hours at hourly rates of $125 and $150, plus $69.25
in expenses. In her Compensation Order Award of Attorney's Fees, the district
director reduced the number of hours sought by counsel to 4.5, reduced the hourly
rate sought by counsel to $100, and thereafter awarded claimant's counsel an
attorney's fee of $450, plus $55 in expenses. Specifically, the administrative law
judge disallowed the 1.125 hours requested for services rendered after July 19,
1995, the date employer paid additional benefits.
On appeal, claimant challenges the district director's denial of an attorney's
fee for the 1.125 hours of services rendered after July 19, 1995. Employer
responds, urging affirmance.
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 an attorney's fee for services performed after the date that the employer
paid benefits, October 24, 1994, as the district director rejected all of these
services on the ground that no further benefits were derived from services rendered
subsequent to that date without first considering the necessity and reasonableness
of the time requested as it may relate to any services performed to "wind-up" this
case. On remand, the Board instructed the district director that she must provide
an adequate discussion of the time requested and services rendered by claimant's
counsel after October 24, 1994, and assess the necessity and reasonableness of the
work involved, in order to discern whether these entries represent "wind-up"
services for which counsel may be entitled to a fee, payable by employer. See
also Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995). In the
instant case, the district director disallowed the entire 1.125 hours of services
rendered after July 19, 1995, the date employer paid additional benefits, without
providing an assessment of the necessity and reasonableness of the work involved.
Therefore we must remand the case to the district director to consider the
necessity and reasonableness of the time requested for an attorney's fee subsequent
to July 19, 1995.[1] Everett, 32 BRBS at
279; Nelson, 29 BRBS at 90.
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
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)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, thereby entitling counsel to an attorney's fee.
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NOTE: This is an UNPUBLISHED LHCA Document.
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