Please Click on this link to download the original document in WP 6.1 format.

                                        
                                        
                                    BRB No. 02-0706
 
JOSEPH CACCAMO                    )
                                           )
          Claimant-Respondent          )
                                       )
     v.                                )
                                           )
INTERSTATE MAINTENANCE                 )         DATE ISSUED:  
06/17/2003 17, 2003
CORPORATION                            )
                                           )
     and                               )
                                           )
THE STATE INSURANCE FUND                      )
                                       )     
          Employer/Carrier-                 )     
          Petitioners                       )          DECISION and ORDER
          
     Appeal of the Compensation Order Award of Attorney's Fees of Richard V.
     Robilotti, District Director, United States Department of Labor.
 
     John E. Kawczynski (Field Womack & Kawczynski, LLC), 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 Award of Attorney's Fees (Case No. 02-78793) of District Director Richard V. Robilotti 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 injured his back and right leg during the course of his employment
for employer on December 16, 1982.  The employer has paid compensation for
permanent total disability, 33 U.S.C. §908(a), since April 24, 1987.  The
parties' stipulations, signed in August 1987, were formalized in a Compensation
Order issued on September 3, 1987.  At employer's request, Dr. Gilbert examined
claimant on March 28, 2002.  Dr. Gilbert opined that claimant could work four hours
per day in a sedentary job that did not require sitting for more than an hour at
a time.  Thereafter, employer sought to have claimant undergo a vocational
evaluation.  Claimant's counsel objected, and he requested an informal conference
with the district director.  
     In his Memorandum of Informal Conference, the district director noted
employer's position that claimant remains entitled to continuing compensation for
permanent total disability.  The district director found no basis for modification
of the Compensation Order, and he stated that benefits for permanent total
disability will continue.  Employer was reminded that a vocational counselor may
not contact claimant directly but must initiate contact via claimant's attorney.
     Thereafter, claimant's counsel submitted a fee request to the district
director requesting $1,800, representing six hours of attorney services at an
hourly rate of $300.  Employer objected, contending that the tasks enumerated in
the fee petition should have taken no more than three hours, and that, therefore,
$900 would be a more reasonable fee.  Employer also contended that, since it has
continued paying claimant compensation for permanent total disability, it cannot
be held liable for claimant's attorney's fee because claimant did not obtain any
additional benefits.  In his Order, the district director ordered employer to pay
claimant's counsel a fee of $1,250.  The district director did not state whether
he reduced the number of hours or the hourly rate requested, nor did he address
employer's contention that it cannot be held liable for claimant's attorney's fee.
     On appeal, employer challenges its liability for any fee award.  Claimant has
not filed a response brief.
     We vacate the district director's assessment of claimant's attorney's fee against employer as the award is premature
in this case.  At the time of the informal conference, it is undisputed that employer continued to pay claimant compensation
for permanent total disability pursuant to the 1987 Order and had not yet filed a motion for modification pursuant to Section
22, 33 U.S.C. §922.  As the district director stated in his Memorandum of Informal Conference, employer agreed at
that time that claimant is entitled to continuing permanent total disability benefits.  Employer merely attempted to have
claimant meet with a vocational counselor, and the district director's recommendation included only the reminder that
employer must make arrangements for such meetings through claimant's attorney.  Thus, as claimant has not yet defended
his entitlement to permanent total disability benefits, it is premature to hold employer liable for claimant's attorney's fee.
See generally Adkins v. Kentland Elkhorn Coal Corp., 109 F.3d 307 (6th Cir. 1997); Director, OWCP v.
Baca, 927 F.2d 1122 (10th Cir. 1991); Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552 (9th Cir.
1989); Warren v. Ingalls Shipbuilding, Inc., 31 BRBS 1 (1997) (tactical victory does not entitle claimant to an
attorney's fee absent success in terms of obtaining benefits).  Subsequent to employer's filing an appeal in this case,
however, employer filed a motion for modification with the district director, pursuant to Section 22.  If claimant succeeds
in retaining entitlement to permanent total disability benefits, employer may be liable for any services necessary for the
successful defense of claimant's award, including those at issue herein.  Consequently, the district director's fee award of
$1,250 to claimant's counsel payable by employer is vacated as it is premature.
     Accordingly, the district director's Compensation Order Award of Attorney's Fees is vacated.   
     SO ORDERED.
 
 
 
 
                              ____________________________________
                              NANCY S. DOLDER, Chief
                              Administrative Appeals Judge
 
 
 
                              ____________________________________
                              ROY P. SMITH
                              Administrative Appeals Judge
 
 
 
                              ____________________________________
                              BETTY JEAN HALL
                              Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document