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                                 BRB No. 99-0582

JOHN NETTER                             )
                                        )
          Claimant-Respondent           )
                                        )
               v.                                 )
                                        )                    
                                             INGALLS SHIPBUILDING,                   )    DATE ISSUED:   03/01/2000
INCORPORATED                            )
                                        )
          Self-Insured                  )
                                                       Employer-Petitioner           )    DECISION and ORDER

          Appeal of the Decision and Order-Awarding Benefits and Order Denying
     Motion for Reconsideration and Supplemental Decision and Order Awarding
     Attorney Fees of Ainsworth H. Brown, Administrative Law Judge, United
     States Department of Labor.

          John G. McDonnell, Biloxi, Mississippi, for claimant.

          Paul M. Franke, Jr. (Franke, Rainey & Salloum, PLLC), Gulfport,
     Mississippi, for self-insured employer.

          Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge. 

          PER CURIAM:

     Employer appeals the Decision and Order-Awarding Benefits and Order Denying
Motion for Reconsideration and Supplemental Decision and Order Awarding Attorney
Fees  (98-LHC-1026, 1027) of Administrative Law Judge Ainsworth H. Brown 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).  We
must affirm the findings of fact and conclusions of law of the administrative law
judge which are rational, supported by substantial evidence, and in accordance with
law.  O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S.
359 (1965); 33 U.S.C. §921(b)(3).  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 law.   See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS
272 (1980).

     Claimant, an electric cable puller, sustained a work-related injury to his
right elbow on March 9, 1993, and again on August 16, 1995.  The administrative law judge
found that claimant could not return to his usual work following the second injury,
and thus awarded claimant temporary total disability benefits from August 16, 1995,
to November, 15, 1996, the date he found claimant's condition became permanent, and
permanent total disability from November 16, 1996, until July 30, 1998, the date
the administrative law judge found employer established the availability of suitable alternate
employment.  The administrative law judge found further that claimant sustained a
28 percent impairment to his upper right extremity, 18 percent of which is caused
by his August 16, 1995 accident.  The administrative law judge therefore awarded
claimant permanent partial disability benefits under the schedule set forth at 33
U.S.C. §908(c)(1).  The administrative law judge thereafter awarded claimant's
counsel an attorney's fee of $4,925.

     On appeal, employer challenges the administrative law judge's finding that it
did not establish the availability of suitable alternate employment until July 31,
1998.  Employer also contends the administrative law judge erroneously awarded claimant's
counsel an attorney's fee without considering its objections to the fee petition. 
Claimant responds, urging affirmance.

     Employer contends that the administrative law judge erred in finding that it
did not  establish suitable alternate employment in February 1997.  Employer
alleges that the  administrative law judge erred in finding that claimant's doctor did not
approve the identified work until July 1998, contending further that such approval
is not required before a job may be found suitable.  Once, as here, the claimant
establishes his inability to return to his usual work, it is employer's burden to
demonstrate the availability of realistic jobs, within  the geographic area where
claimant resides, which claimant, by virtue of his age, education, work experience,
and physical restrictions is capable of performing and for which he can compete and
reasonably secure. See New Orleans (Gulfwide) Stevedores, Inc. v. Turner,
661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also P&M Crane Co. v. Hayes,
930 F.2d 424, 24 BRBS 116(CRT) (5th Cir. 1991), reh'g denied, 935 F.2d
1293 (5th Cir. 1991); Roger's Terminal & Shipping Corp. v. Director, OWCP,
784 F.2d 687, 18 BRBS 79(CRT) (5th Cir. 1986), cert. denied, 479 U.S.
826 (1986).

     Based on Dr.  Crotwell's opinion, the administrative law judge found that claimant
has the following work restrictions: no repetitive right arm work, no lifting more
than 10 pounds frequently or 15 pounds infrequently with the right arm, no
work at or above shoulder level, and no climbing ladders.  Decision and Order at
14-15; Emp.  Ex.  6.  The administrative law judge then stated that these restrictions did
not preclude claimant's performance of the three security guard jobs identified as
available in employer's labor market survey of February 1997.  The administrative law
judge found, nonetheless, that  inasmuch as Dr. Crotwell "expressed a degree of
reservation as to the guard work described to him," employer did not establish
suitable alternate employment at this time.  Decision and Order at 15. The administrative law judge
found that Dr. Crotwell did not unequivocally conclude claimant could perform guard
work until July 16, 1998, and the administrative law judge found that such positions were
available to claimant as of July 31, 1998.[1] 

     We vacate the administrative law judge's finding that employer did not establish
suitable alternate employment until July 31, 1998, and we remand this case for further
consideration.  Employer correctly asserts that a treating physician need not be
asked whether specific employment opportunities are indeed suitable for
claimant, but the administrative law judge also acts within his discretion in
finding positions suitable or unsuitable based on the opinion of a credited
physician. See generally Armfield v.  Shell Offshore, Inc., 30 BRBS 122
(1996).  Nonetheless, the fundamental issue, which the administrative law judge is
required to resolve, is whether the alternate positions identified by employer are
within the restrictions on claimant's employability, as determined by the
administrative law judge based on the evidence of record. See, e.g., Moore v. 
Universal Maritime Corp., 33 BRBS 54 (1999); Hernandez v.  Nat'l Steel &
Shipbuilding Co., 32 BRBS 109 (1988).  On the facts of the instant case,
employer is correct that it is contradictory for the administrative law judge to
state that claimant's restrictions did not preclude his performance of the security
guard work identified as available in February 1997, yet to find that suitable alternate
employment was not established due to Dr.  Crotwell's "reservations" about this job. 
Dr. Crotwell stated in a chart note dated April 28, 1997, that "Guard duty is a
possibility as long as they fall within the restrictions that have been outlined."
Emp.  Ex.  6 at 27.  On May 22, 1997, Dr.  Crotwell wrote that he "okayed [a job
description] for guard duty as long as it fell within [claimant's] restrictions."
Id.  at 28.  As the only reservation expressed by Dr. Crotwell was that the
jobs must be within claimant's physical restrictions, and as it is the administrative
law judge's responsibility to determine whether identified jobs are indeed
appropriate given the claimant's physical restrictions, as well as his other
vocational factors, we hold that the administrative law judge erred in determining that
suitable alternate employment was not established on the basis of Dr. Crotwell's
"reservation."  Consequently, we vacate the administrative law judge's finding that
employer established suitable alternate employment only as of July 31, 1998, and
we remand the case to the administrative law judge to consider whether positions
found by employer's vocational consultant prior to July 30, 1998, are suitable
given claimant's physical restrictions and other vocational factors.    
     Remand is also required because employer correctly contends that the
administrative law judge erred in failing to consider its timely filed objections
to claimant's counsel's fee petition.  In the instant case, counsel filed his
original fee petition on February 2, 1999, and employer objected that counsel
failed to list the dates on which he performed work. Employer  reserved its right
to file further objections if the petition was resubmitted with the required dates.
The administrative law judge issued a Show Cause Order on February 18, 1999,
providing counsel fifteen days to provide the appropriate information. Counsel
submitted his amended fee petition to the administrative law judge on  February 19,
1999, with service on employer.  In his Supplemental Order dated March 18, 1999,
the administrative law judge awarded claimant's counsel the requested fee of $4,925,
representing 39.4 hours at $125 per hour, stating that employer had voiced no
further objections. Nonetheless, as employer contends, the administrative file
contains objections dated March 2, 1999, and date stamped March 5, 1999, which
employer timely submitted to the administrative law judge  in response to the amended fee
petition.[2]   See 20 C.F.R.
§702.132.  Upon receiving employer's motion for reconsideration of the
attorney's fee issue, along with another  copy of its objections, the administrative
law judge stamped "Denied" on the document.  Inasmuch as it is an abuse of discretion
to not consider timely filed objections, see generally Codd v.  Stevedoring
Services of America, 32 BRBS 143 (1998), we vacate the administrative law judge's
attorney's fee award, and remand so that he may consider employer's objections
prior to entering a fee award.

     Accordingly, we vacate the administrative law judge's finding that employer
established suitable alternate employment on July 31, 1998, and the administrative
law judge's award of attorney's fees.  The case is remanded to the administrative
law judge for reconsideration of these issues consistent with this decision.  In
all other respects, the administrative law judge's decisions are affirmed.

     SO ORDERED.



                                                                                                      
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                                                      
                         JAMES F. BROWN
                         Administrative Appeals Judge




                                                                                                      
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)In denying employer's motion for reconsideration, the administrative law judge denied that his initial decision stood for the proposition that the attending physician must approve positions before suitable alternate employment can be found. The administrative law judge stated that he was simply indicating that Dr. Crotwell's assessment was the most probative in the record, and he therefore denied employer's motion for reconsideration. Back to Text
2)As the administrative law judge gave claimant's attorney 15 days to correct his fee petition, it cannot be said that employer's objections, dated 11 days after the date counsel mailed his amended fee petition, were untimely filed. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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