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                                    BRB No. 02-0153S

VERNON J. WILLIAMS                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
FRIEDE GOLDMAN OFFSHORE                 )    DATE ISSUED:   06/26/2003
2003
                                        )
     and                                )
                                        )
AIGCS                                   )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order Denying Attorney Fees of
     Richard D. Mills, Administrative Law Judge, United States Department
     of Labor.

     Louis Fondren (Fondren and Fondren), Pascagoula, Mississippi, for
     claimant.

     Michael J. McElhaney, Jr. and  Gina Bardwell Tompkins  (Colingo,
     Williams, Heidelberg, Steinberger & McElhaney, P.A.), Pascagoula,
     Mississippi, for employer/carrier.

     Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
     Administrative Appeals Judges.

     PER CURIAM:
     Claimant appeals the Supplemental Decision and Order Denying Attorney Fees 
(2000-LHC-913) of Administrative Law Judge Richard D. Mills 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. See, e.g., Muscella v. sun
Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
     Claimant worked as a first class electrician for Atlantic Marine/Alabama
Shipyard from the fall of 1996 through April 1998.  On or about May 1, 1998,
claimant commenced employment with employer in that same capacity.  On May 7,
1998, claimant experienced  discomfort in his shoulder and neck while in the
course of his employment.  Claimant declined medical treatment from employer's
medical staff; however, that night claimant was taken to the hospital where he
was diagnosed as having sustained a neck strain with radiculopathy.  Claimant
subsequently underwent a cervical fusion at C5-6 on May 19, 1998. On July 27,
1998, Dr. Middleton, the neurologist who performed the surgical procedure on
claimant's neck, released claimant to return to work.  On March 11, 1999,
claimant filed a claim for benefits under the Act.  Thereafter, on March 31,
1999, employer filed its First Report of Injury.  On September 14, 1999, and
October 27, 1999, employer and claimant respectively filed their pre-hearing
statements listing multiple issues as being unresolved. 
     On January 21, 2000, without an informal conference being held, the
district director transferred claimant's claim to the Office of
Administrative Law Judges.  Thereafter, in an LS-208 Notice of Final
Payment dated June 9, 2000, employer stated that on June 6, 2000, it had
made to claimant a last payment of temporary total disability
compensation, at a weekly rate of $208.94, for the period of May 8, 1998
to July 30, 1998. See Emp. Ex. 22.  
     In his Decision and Order, the administrative law judge found that  claimant reached maximum medical
improvement as of July 27, 1998, and that as of that date claimant was capable of resuming his usual employment
duties.  Accordingly, the administrative law judge awarded claimant temporary total disability compensation from
May 7, 1998, until July 27, 1998, based upon an average weekly wage of $543.40, as well as medical benefits. 

     Subsequent to the issuance of the administrative law judge's
decision, claimant's counsel submitted a fee petition to the
administrative law judge requesting a fee of $7,110.57, representing
38.375 hours of services rendered at $165 per hour, and $778.70 in
expenses.  Employer submitted objections to this fee petition.  In his
Supplemental Decision and Order Denying Attorney Fees, the administrative
law judge agreed with employer that, as employer voluntarily paid
disability benefits to claimant and no informal conference had been held
in this case, claimant's counsel's fee should not be assessed against
employer pursuant to Section 28(b) of the Act.  Accordingly, the
administrative law judge denied claimant's counsel's request for a fee
payable by employer.  
     Claimant appealed the administrative law judge's decisions to the
Board which, after severing claimant's supplemental appeal of the
administrative law judge's denial of his requested fee, affirmed his
award of disability and medical benefits to claimant in its entirety.
Williams v. Friede Goldman Offshore, BRB No. 02-0153 (Oct. 24,
2002)(unpub.).
     In his present supplemental appeal, claimant challenges the
administrative law judge's determination that his counsel's requested fee
should not be assessed against employer.  Employer responds, urging
affirmance of the administrative law judge's supplemental decision.
     The Act provides two avenues by which a successful claimant's
attorney may recover attorney's fees from the employer or carrier. 
Specifically, Section 28(a) of the Act, 33 U.S.C. §928(a), provides
that:
     If the employer or carrier declines to pay any compensation on or before the thirtieth day after
     receiving written notice of a claim for compensation having been filed from the deputy
     commissioner, on the ground that there is no liability for compensation within the provisions of this
     chapter, and the person seeking benefits shall thereafter have utilized the services of an attorney at
     law in the successful prosecution of his claim, there shall be awarded, in addition to the award of
     compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier
     . . . .
33 U.S.C. §928(a).  Alternatively, Section 28(b) of the Act provides that attorney fees shall be awarded
under the following circumstances:
     If the employer or carrier pays or tenders payment of compensation without an award pursuant to
     section 914(a) and (b) of this title, and thereafter a controversy develops over the amount of
     additional compensation, if any, to which the employee may be entitled, the deputy commissioner
     or Board shall set the matter for an informal conference and following such conference the deputy
     commissioner or Board shall recommend in writing a disposition of the controversy.  If the
     employer or carrier refuse [sic] to accept such written recommendation . . . they shall pay or tender
     to the employee in writing the additional compensation, if any, to which they believe the employee
     is entitled.  If the employee refuses to accept such payment or tender of compensation, and thereafter
     utilizes the services of an attorney at law, and if the compensation thereafter awarded is greater than
     the amount paid or tendered by the employer or carrier, a reasonable attorney's fee . . . shall be
     awarded in addition to the amount of compensation.  
33 U.S.C. §928(b).[1]   
     After reviewing the record in this case, we conclude that the case must
be remanded for further consideration of whether fee liability lies under
Section 28(a), as we cannot determine from the record whether employer
timely paid the benefits due claimant.[2] 
 In support of his contentions on appeal, claimant avers that employer
declined to pay his medical expenses and that thus, pursuant to the decision
of the United States Court of Appeals for the Fifth Circuit in Pool Co.
v. Cooper, 274 F.3d 173, 35 BRBS 109(CRT)(5th Cir. 2001), employer should
be held liable for his counsel's fee pursuant to Section 28(a) of the Act. 
Claimant's position was summarily rejected by the administrative law judge
who, citing Staftex Staffing v. Director, OWCP,  237 F.3d 409, 34
BRBS 105(CRT)(5th Cir. 2000), modifying on reh'g 237 F.3d 407, 34 BRBS
44(CRT)(5th Cir. 2000), thereafter denied claimant's request for a fee
payable by employer based upon a finding that employer voluntarily paid
claimant temporary total disability benefits from May 8, 1998 to July 30,
1998, and that as an informal conference was not held before the district
director, Section 28(b) of the Act bars assessment of a fee against
employer. See Supplemental Decision and Order at 1-2.  However,
employer's LS-208 Final Payment of Compensation form states only that
voluntary payments of disability compensation were last made to claimant on
June 6, 2000; that form and the remaining record are silent as to whether
those voluntary payments commenced in a timely manner as mandated  by the
plain language of Section 28(a) and the first clause in Section 28(b).  If
employer commenced timely voluntary payment of benefits to claimant, then
the administrative law judge is correct that fee liability is governed by
Section 28(b), and employer is not liable under the holding in
Staftex.  However, if employer declined to pay any compensation on
or before the thirtieth day after receiving written notice of the claim
having been filed, employer is liable for a reasonable attorney's fee
pursuant to the express statutory language of Section 28(a) of the Act.
See 33 U.S.C. §928(a); Cooper, 274 F.3d 173, 35 BRBS
109(CRT)(court, referring to the plain language of the statute, states that
Section 28(a) awards attorney's fees where "the employer or carrier declines
to pay any compensation on or before the thirtieth day after receiving
notice of a claim for compensation from the deputy commissioner, on the
ground that there is not liability for compensation"); Nat'l Steel &
Shipbuilding Co. v. U.S. Dept. of Labor, 606 F.2d 875, 11 BRBS 68
(1979).  Although employer made voluntary payments, it is impossible for us
to determine whether its payments were timely and thus whether Section 28(a)
or (b) applies.  Accordingly, we vacate the administrative law judge's
denial of an attorney's fee payable by employer, and we remand this case for
the administrative law judge to consider all of the evidence and address
claimant's contention that Section 28(a) is the applicable subsection to be
utilized in determining employer's liability for his counsel's fee.
     Accordingly, the administrative law judge's Supplemental Decision and Order Denying Attorney Fees is
vacated, and the case remanded for further consideration in accordance with this opinion.
     SO ORDERED.  

                                                                   
                            NANCY S. DOLDER, Chief
                            Administrative Appeals Judge


                                                                   
                            ROY P. SMITH
                            Administrative Appeals Judge


                                                                   
                            PETER A. GABAUER, Jr.
                            Administrative Appeals Judge

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Footnotes.


1) Sections 14(a) and (b) of the Act, referenced in Section 28(b), state: (a) Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer. (b) The first installment of compensation shall become due on the fourteenth day after the employer has been notified pursuant to section 912 of this title, or the employer has knowledge of the injury or death, on which date all compensation then due shall be paid. Thereafter compensation shall be paid in installments . . . . 33 U.S.C. §914(a), (b). Back to Text
2) Although the record contains claimant's claim form and employer's first report of injury form, it does not contain a controversion form by employer. Although the administrative law judge stated that the parties stipulated that employer controverted claimant's claim on March 11, 1999, that is the date entered on claimant's claim form. The parties' respective stipulation forms indicate that employer controverted the claim on April 26, 1999. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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