Skip to page content
Benefits Review Board
Bookmark and Share




                                 BRB No. 98-1013


DONALD SINCLAIR                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   03/04/1999

AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER


     Appeal of the Order - Award of Attorney's Fee of B. E. Voultsides,
     District Director, United States Department of Labor.

     John H. Klein (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

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

     PER CURIAM:

     Claimant appeals the Order - Award of Attorney's Fee (Case No. 5-86694) of
District Director B. E. Voultsides 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's previous counsel in this case, Richard B. Donaldson, Jr., filed an
attorney's fee petition before the office of the district director on January 9,
1998, requesting a total of $1,965 in an attorney's fee for 13.10 hours of services
at an hourly rate of $150.  The district director, in an Order dated March 18,
1998, awarded counsel this sum, and found claimant liable for the payment of the
fee as requested by Mr. Donaldson.  Claimant subsequently obtained the services of
a new attorney and filed this appeal, contending that employer is liable for any
fee owed Mr. Donaldson.  Claimant also contends that the district director failed
to comply with the requirements of 20 C.F.R. §702.132 in that he did not
discuss the regulatory criteria (specifically, the complexity of the issues or the
amount of benefits awarded to claimant) or claimant's ability to pay the fee.  In
addition, claimant contends that Mr. Donaldson's fee petition is inadequate.  

     Under Section 28(a) of the Act, 33 U.S.C. §928(a), if an employer
declines to pay any compensation within 30 days after receiving written notice of
a claim from the district director, and the claimant's attorney's services result
in a successful prosecution of the claim, claimant is entitled to an attorney's fee
payable by employer.  33 U.S.C. §928(a).  Under Section 28(b) of the Act, 33
U.S.C. §928(b), when an employer voluntarily pays or tenders benefits and
thereafter a controversy arises over additional compensation due, the employer will
be liable for an attorney's fee if the claimant succeeds in obtaining greater
compensation than that agreed to by the employer.  33 U.S.C. §928(b).  If
Section 28(a) or (b) does not apply, an attorney's fee may be made a lien upon the
compensation due to claimant pursuant to 33 U.S.C. §928(c).  Under such
circumstances, any fee approved must take into account the financial circumstances
of the claimant.  20 C.F.R. §702.132(a).

     We agree with claimant's contention that the district director failed to
adequately explain the attorney's fee award.  The district director's Order
consists merely of a summary statement approving Mr. Donaldson's attorney's fee
application because claimant did not object to the amount of or responsibility for
the payment of the fee.  The Order does not indicate whether the district director
considered the complexity of the issues in the case or took into consideration the
amount of benefits awarded to claimant or claimant's ability to pay the fee.[1]   20 C.F.R. §702.132(a).  Moreover, there is
no explanation as to why claimant is liable for the attorney's fee.  As the
district director's attorney's fee award is not adequately explained, it must be
vacated and the case remanded for more specific findings in accordance with Section
28 of the Act and 20 C.F.R. §702.132. See generally Thompson v. Lockheed
Shipbuilding & Const. Co., 21 BRBS 94, 97 (1988).  

     Accordingly, the district director's attorney's fee award is vacated and the
case is remanded for proceedings 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

To Top of Document

Footnotes.


1) Claimant's brief states that claimant is unable to pay the fee as he is out of work suffering from not only a right wrist injury, the subject of this claim, but also a subsequent left wrist injury. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document