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                                 BRB No. 98-1202

CHARLES F. PARKER, JR.                  )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
LOGISTEC OF CONNECTICUT,                )    DATE ISSUED:   05/18/1999
1999 
INCORPORATED                            )
                                        )
     and                                )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order Awarding Attorney's Fee of
     David W. Di Nardi, Administrative Law Judge, United States Department of
     Labor.

     David A. Kelly (Monstream & May), Glastonbury, Connecticut, for
     claimant.

     John F. Karpousis (Freehill, Hogan & Mahar), Stamford, Connecticut, for
     employer/carrier.

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Awarding Attorney's Fee
of Administrative Law Judge David W. Di Nardi (97-LHC-2537, 97-LHC-2538) 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 law. See Muscella v. Sun Shipbuilding & Dry Dock
Co., 12 BRBS 272 (1980).
     Claimant filed a claim for his work-related hearing loss in 1997, and employer
controverted the claim.  At the hearing, the parties stipulated, inter alia,
that claimant had not been paid compensation or medical benefits, and that the
unresolved issues were whether claimant's hearing loss constitutes a work-related
injury, the nature and extent of claimant's disability, the applicable average
weekly wage, the applicability of Section 8(f), 33 U.S.C. §908(f), responsible
employer, and claimant's entitlement to payment of unpaid medical bills.  The
administrative law judge determined that claimant is entitled to compensation for
a work-related 6.8 percent monaural impairment to his right ear pursuant to Section
8(c)(13)(A),  33 U.S.C. §908(c)(13)(A), that employer is responsible for the
payment of claimant's benefits, and that employer is not entitled to Section 8(f)
relief.  The administrative law judge computed claimant's average weekly wage
pursuant to Section 10(a), 33 U.S.C. §910(a), rejecting employer's contention
that Section 10(c), 33 U.S.C. §910(c), applies.  The administrative law judge
further found employer responsible for the payment of Dr. Russi's medical bills as
a necessary litigation expense under Section 28(d), 33 U.S.C. §928(d), and for
future medical benefits for claimant's hearing impairment pursuant to Section 7,
33 U.S.C. §907.  In light of his award, the administrative law judge
determined that employer also is liable for an attorney's fee.

     Subsequently, claimant's counsel filed a petition requesting an attorney's fee
of $11,445.62, representing 37.4 hours of services by lead counsel at $195 per
hour, 22.5 hours of services by associate counsel at $140 per hour, and 4.2 hours
of paralegal services at $45 per hour, plus $792.62 in expenses.  Employer filed
objections to this fee request.  In a supplemental order, the administrative law
judge agreed with employer that the $195 hourly rate requested for lead counsel is
excessive, and, accordingly, reduced the hourly rate for lead counsel to $185.  The
administrative law judge rejected employer's contentions that the fee should be
reduced, first, on the basis of the lack of complexity of the legal issues involved
in this case and, secondly, to reflect the fact that claimant achieved limited
success in the prosecution of his claim.  Lastly, the administrative law judge
rejected each of employer's specific objections to various entries in the fee
petition, finding the tasks reasonable and necessary.  Accordingly, he held
employer liable for an attorney's fee in the amount of $11,071.62.  Employer
appeals the fee award, incorporating by reference the objections it raised below,
and claimant responds, urging affirmance.

     Employer initially argues that the lack of complexity of the instant case
mandates a reduction in the amount of the fee awarded to claimant's counsel.  An
attorney's fee must be awarded in accordance with Section 28 of the Act, 33 U.S.C.
§928, and the applicable regulation, 20 C.F.R. §702.132, which provides
that the award of any attorney's fee shall be reasonably commensurate with the
necessary work performed and shall take into account the quality of the
representation, the complexity of the issues, and the amount of benefits awarded.
See generally Parrott v. Seattle Joint Port Labor Relations Committee of the
Pacific Maritime Ass'n., 22 BRBS 434 (1989).  The administrative law judge in
the instant case specifically recognized that while the complexity of the issues
should be considered, it is only one of the relevant factors. See generally
Thompson v. Lockheed Shipbuilding & Const. Co., 21 BRBS 94 (1988).  As
employer's assertion that the complexity of the legal issues does not warrant the
fee awarded is insufficient to satisfy employer's burden of establishing that the
administrative law judge abused his discretion in his consideration of this factor,
we reject employer's contention that the fee must be reduced on this basis.

     Employer further asserts that the awarded hourly rate of $185 for lead counsel
is excessive, suggesting that an hourly rate of $165 would be more appropriate. 
The administrative law judge determined that the $195 hourly rate sought by
claimant's lead counsel was excessive, and awarded him an hourly rate of $185.  We
hold that employer's assertions are insufficient to meet its burden of establishing
that the hourly rates awarded by the administrative law judge are unreasonable.
See Maddon v. Western Asbestos Co., 23 BRBS 55 (1989).

     Employer additionally makes specific contentions regarding time allowed for
certain entries.  We note that the administrative law judge specifically considered
and rejected the objections made below by employer to these entries.  Because
employer has failed to show an abuse of discretion by the administrative law judge
in this regard, we reject these item-specific contentions.[1]   See Maddon, 23 BRBS at 55. 

     We agree with employer, however, that the administrative law judge erred in
not applying the holding of the United States Supreme Court in Hensley v. 
Eckerhart, 461 U.S. 421 (1983), that the attorney's fee awarded should be
commensurate with the degree of success obtained in a given case, when considering
claimant's fee request.  We hold, accordingly, that the administrative law judge's
fee award must be vacated and the case remanded for further consideration of this
issue. 

     In Hensley, a plurality of the Supreme Court defined the conditions
under which a plaintiff who prevails on only some of his claims may recover
attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C. §1988.  Specifically, the Court created a two-prong test focusing on
the following questions:
     First, did the plaintiff fail to prevail on claims that were unrelated
     to the claims on which he succeeded?  Second, did the plaintiff achieve
     a level of success that makes the hours reasonably expended a
     satisfactory basis for making a fee award?

Hensley, 461 U.S. at 434; see also George Hyman Const. Co. v. Brooks,
963 F.2d  1532, 25 BRBS 161 (CRT)(D.C. Cir. 1992); General Dynamics Corp. v.
Horrigan, 848 F.2d 321, 21 BRBS 73 (CRT)(1st Cir. 1988), cert. denied,
488 U.S. 997 (1988).  Where claims involve a common core of facts, or are based on
related legal theories, the Court stated that the district court should focus on
the significance of the overall relief obtained by the plaintiff in relation to the
hours reasonably expended on litigation.  If a plaintiff has obtained "excellent"
results, the fee award should not be reduced simply because he failed to prevail
on every contention raised.  If the plaintiff achieves only partial or limited
success, however, the product of hours expended on litigation as a whole, times a
reasonable hourly rate, may result in an excessive award.  Therefore, the fee award
should be for an amount that is reasonable in relation to the results obtained.
Hensley, 461 U.S. at 435-436.  As the Supreme  Court stated in
Hensley, the most critical factor is the degree of success obtained.
Hensley, 461 U.S. at 437.  Under the Act, the second prong of the
Hensley test requires the administrative law judge to award a reasonable fee
after consideration of employer's objections and the regulatory criteria, 20 C.F.R.
§702.132. See Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90
(1993)(en banc)(Brown and McGranery, JJ., concurring and dissenting),
modified on other grounds on recon. en banc, 28 BRBS 102 (1994), aff'd
mem. sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.3d 66
(5th Cir. 1995).

     In the present case, employer properly raised the applicability of
Hensley before the administrative law judge, arguing that the attorney's fee
awarded must be commensurate with the limited success achieved by claimant. Our
review of the record reflects that the amount of compensation claimant received for
his hearing loss was approximately 25 percent of the amount of compensation he
sought at the hearing; claimant sought compensation for a 7.2 percent binaural
impairment which would have entitled him to 14.4 weeks of compensation pursuant to
Section 8(c)(13)(B), and was awarded compensation for a 6.8 percent monaural
impairment, entitling him to 3.5 weeks of compensation pursuant to Section
8(c)(13)(A).  In rejecting employer's objection regarding claimant's limited
success, the administrative law judge, without addressing the applicability of
Hensley, ruled that there is no requirement that the amount of the fee award
be commensurate with claimant's award of benefits. See Supp. Decision and
Order at 2.  Thus, as the administrative law judge failed to address employer's
specific contention regarding claimant's limited success in accordance with the
applicable legal standards as set forth in Hensley, we vacate the fee award
and remand the case for consideration of the fee petition pursuant to
Hensley.[2]   See generally Ingalls
Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14
(CRT)(5th Cir. 1993);  George Hyman Const. Co., 963 F.2d at 1532, 25 BRBS
at 161 (CRT); Ahmed v. Washington Metropolitan Area Transit Authority, 27
BRBS 24 (1993).

     Accordingly, the administrative law judge's Supplemental Decision and Order 
Awarding Attorney's Fee is vacated, and the case is remanded for further
consideration consistent with this opinion. 

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)We note that, in challenging the number of hours approved for research, preparation and revision of claimant's trial brief from February 18, 1998 through February 23, 1998, employer erroneously states that the administrative law judge approved 18.2 hours for this work. See Emp. Reply Brief at 13-14. In actuality, the administrative law judge approved only the 15.7 hours itemized by claimant's attorney for this work, having noted that employer had mistakenly computed the total time expended on these tasks as 18.2 hours. See Supp. Decision and Order at 2. Back to Text
2)We note, in this regard, that contrary to employer's assertion that the sole issue on which claimant prevailed was the determination of average weekly wage, see Emp. Reply Br. at 3, this was a contested claim in which employer refused to pay compensation or medical benefits. Unresolved issues presented at the hearing on which claimant prevailed included whether claimant's hearing loss constitutes a work-related injury and entitlement to the payment of unpaid medical bills, in addition to the calculation of claimant's average weekly wage. Thus, claimant, in fact, achieved success on all contested issues with the exception of the degree of his hearing loss. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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