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                                 BRB No. 98-1147


JORGE DANIEL                            )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
DODGE ISLAND TERMINAL                   )    DATE ISSUED:   05/20/1999   

CORPORATION                             )
                                        )
     and                                )
                                        )
HARTFORD INSURANCE GROUP                )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Supplemental Compensation Order - Awarding Attorney's Fees Upon Remand of Jeana F.
     Jackson, District Director, United States Department of Labor.

     Clifford R. Mermell (Gillis & Mermell, P.A.), Miami, Florida, for claimant.
     
     Before:  HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and
     NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Supplemental Compensation Order - Awarding Attorney's Fees Upon Remand (6-143977)
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).

     This is the second time this case is before the Board.  To recapitulate the
facts, claimant, a machine operator, suffered an injury to his left foot when it
became caught between a pallet jack and a fork-lift on February 3, 1992.  Employer,
though initially compensating claimant under the Florida Workers' Compensation Act,
subsequently conceded claimant's coverage under the Act and paid claimant three
weeks of temporary total disability benefits, followed by payment of permanent
partial disability benefits on November 23, 1992.  Claimant returned to his usual
employment on June 10, 1992.

     On October 26, 1993, claimant's counsel facsimiled a letter to Dr. Hinds
asking whether the physician believed, to a reasonable degree of medical certainty,
that claimant had lost complete use of his left little toe to the point where it
was the equivalent of a surgical removal of the toe.  Dr. Hinds replied in the
affirmative.  That day, counsel telephoned employer, asserting that claimant was
entitled to additional compensation for the complete loss of use of his little toe. 
Counsel memorialized this conversation in a letter to employer, dated July 8, 1994,
again asserting that claimant was entitled to additional compensation under the
Act.  Employer, on February 6, 1996, paid claimant additional compensation under
the schedule for a 100 percent disability to his little toe.

     Thereafter, claimant's attorney submitted a fee petition to the district
director seeking a fee of $5,250, representing 21 hours of services rendered at an
hourly rate of $250.  The fee petition included entries dated back to February 14,
1992, and thus, counsel's fee request included work with respect to the initial
injury as well as services rendered in gaining claimant's increased disability
compensation.   In response, employer conceded its liability for a fee, but
challenged both the hourly rate and the number of hours sought by counsel.  In her
initial Compensation Order, the district director reduced the hourly rate sought
by counsel to $125, eliminated all hours incurred prior to October 26, 1993, the
date upon which she determined a controversy arose, and disallowed 1.5 hours sought
for preparation of claimant's fee petition.  Accordingly, the district director
awarded counsel a fee of $575, representing 4.6 hours at an hourly rate of $125.

     On appeal, the Board affirmed the district director's reduction in counsel's
hourly rate, but vacated the district director's conclusion that a controversy
arose in the instant matter on October 26, 1993, as the district director did not
provide a rationale for this conclusion, and remanded the case for reconsideration. 
On remand, the district director found that a claim for additional compensation was
made on July 8, 1994, accompanied by the October 26, 1993 opinion supporting the
claim.  As employer had voluntarily paid claimant temporary total disability and
permanent partial disability compensation with regard to the original claim, the
district director again concluded that October 26, 1993 was the date a controversy
arose in the instant matter, and reaffirmed her original award of an attorney's
fee.

     Claimant appeals, challenging the district director's reduction in the number
of hours sought by counsel.  Specifically, claimant contends that the district
director erred in concluding that October 26, 1993 was the date a controversy
arose, asserting that a controversy arose 14 days after claimant's accident of
February 3, 1992, when employer failed to either file a notice of controversion or
commence payment under the Act.  Claimant additionally asserts, for the first time,
that he is entitled to an assessment under Section 14(e) of the Act, 33 U.S.C.
§914(e).  Employer has not responded to this appeal.  For the reasons that
follow, we remand the case to the district director for further consideration.

     The Board, in its initial decision in this matter, remanded the case to the
district director for reconsideration of the date a controversy arose over
claimant's entitlement to compensation benefits under the Act.  Pursuant to 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 employer. See Tait v.
Ingalls Shipbuilding, Inc., 24 BRBS 59 (1990).  In her Supplemental
Compensation Order, the district director found that employer voluntarily paid
temporary total disability and permanent partial disability compensation for the
original February 3, 1992 injury, and that a controversy arose with respect to
claimant's contention of increased disability compensation on October 26, 1993. 
This finding, based on the medical opinion of Dr. Hinds, is supported by
substantial evidence.  

     Nevertheless, claimant contends, as he did in his initial appeal, that a
controversy in the instant matter arose at the time of claimant's initial injury
on February 3, 1992.  While the district director stated that employer made
voluntary payments of temporary total disability compensation from February 25,
1992 through March 9, 1992, the record indicates these payments were initially made
not under the Act but, rather, pursuant to Florida's workers' compensation scheme. 
Moreover, employer did not make any voluntarily payments of permanent partial
disability compensation under the Act until November 1992.[1]   Counsel has requested fees dating back to February 14, 1992, and
thus, the fee request includes work with respect to claimant's initial injury to
his foot on February 3, 1992, as well as for services rendered in obtaining
claimant's increased disability compensation.  Inasmuch as the district director,
on remand, did not make a specific finding as to when a controversy arose with
respect to claimant's initial injury to his left foot, we must vacate the district
director's conclusion that counsel is not entitled to a fee for services performed
before October 26, 1993, the date a controversy arose regarding additional
compensation due claimant.  A determination on this issue requires a specific
finding as to when employer began making voluntary payments of temporary total
disability and permanent partial disability compensation to claimant under the Act
and whether voluntary payments were timely.[2] 

     We reject claimant's request, raised for the first time on appeal, that
employer must be assessed a penalty under Section 14(e) of the Act, 33 U.S.C.
§914(e).  While the issue of liability for a penalty under Section 14(e) may
be raised at any time, see Scott v. Tug Mate, Inc., 22 BRBS 164 (1989),
where, as here, no findings of fact have been made below with respect to this
issue, the Board cannot address claimant's request. See, e.g., Sinclair v.
United Food & Commercial Workers, 23 BRBS 148 (1989)(Board lacks jurisdiction
to address request for Section 14(f) penalty where no findings made below).

          Accordingly, the district director's award of an attorney's fee to
claimant's counsel is vacated, and the case is remanded for further findings in
accordance 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) 1Claimant incorrectly invokes the provisions of Section 14(e), 33 U.S.C. §914(e), for the determination as to when a controversy arose with respect to Section 28, 33 U.S.C. §928. Back to Text
2) 2We note that the Board has held that the fact that an employer has paid compensation pursuant to a state workers' compensation scheme does not alter the fact that it did not pay compensation pursuant to the Act and therefore, Section 28(a) of the Act, 33 U.S.C. §928(a), may be applicable to fees for work before employer commenced payment under the Act. See Butler v. Lemont Shipbuilding & Repair Co., 3 BRBS 429 (1976). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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