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                                 BRB Nos. 97-1217
                                   and 97-1217A

NILES WILLIAMS                          )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/04/1998

          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
I.T.O. CORPORATION OF                   )
BALTIMORE, INCORPORATED                 )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Petitioner              )    DECISION and ORDER

     Appeals of the Decision and Order - Granting Benefits and Supplemental
     Decision and Order Awarding Attorney's Fees of John C. Holmes,
     Administrative Law Judge, United States Department of Labor.

     Myles R. Eisenstein, Baltimore, Maryland, for claimant.

     Robert J. Lynott (Thomas & Libowitz, P.A.), Baltimore, Maryland, for
     self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order - Granting Benefits and employer
appeals the Supplemental Decision and Order Awarding Attorney's Fees (96-LHC-1604,
96-LHC-1605, 96-LHC-1606, 96-LHC-1607) of Administrative Law Judge John C. Holmes
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 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 on February 8, 1991, his right knee on April 4,
1992, and his left knee on January 19, 1994, and May 10, 1994, while working as a
heavy equipment operator for employer.  Claimant sought permanent total disability
benefits for his back and knee injuries.  The administrative law judge awarded
claimant temporary total disability benefits from February 10 through 14, 1991, for
the 1991 back injury, from April 7 through September 30, 1992, for the right knee
injury, and from May 10 through November 16, 1994, for the left knee injury.[1]   Additionally, the administrative law judge
awarded claimant scheduled permanent partial disability benefits for a 40 percent
impairment to the right leg for the 1992 injury, and for a five percent impairment
to the left leg for the 1994 injury, see, 33 U.S.C. §908(c)(2), (19),
and medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907.      

     Claimant's counsel subsequently submitted a fee petition to the administrative
law judge, requesting an attorney's fee of $23,021.62, representing 99.5 hours at
$200 per hour, and $3,121.62 in expenses.  Employer filed objections to the fee
petition to which claimant's counsel replied.  In his Supplemental Decision and
Order Awarding Attorney's Fees, the administrative law judge awarded claimant's
counsel an attorney's fee of $14,821.62, representing 58.5 hours at $200 per hour,
and $3,121.62 in expenses.  

     On appeal, claimant challenges the administrative law judge's finding that he
is limited to scheduled awards for his injuries, asserting that the administrative
law judge erred in entering the schedule awards and that the administrative law
judge erred in denying benefits for claimant's back impairment.  In its appeal,
employer contests the administrative law judge's award of an attorney's fee.    

     Claimant first contends that the administrative law judge erred in denying him
permanent total disability benefits.  To establish a prima facie case of
total disability, claimant must establish that he is unable to return to his usual
employment due to his work-related disability. See, e.g., Harrison v. Todd
Pacific Shipyards Corp., 21 BRBS 339 (1988).  Once claimant establishes an
inability to perform his usual employment because of a job-related injury, the
burden shifts to employer to establish the availability of other jobs that claimant
can perform given, inter alia, his age, medical restrictions and education.
See Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119 (CRT)(4th
Cir. 1997); Lentz v. The Cottman Co., 852 F.2d 129, 21 BRBS 109 (CRT)(4th
Cir. 1988).  Although the  administrative law judge recited these legal principles,
he did not consider claimant's claim for permanent total disability benefits in
light of the medical evidence of record. Consequently, we remand this case to the
administrative law judge to discuss all relevant medical evidence of record and
determine whether claimant established his prima facie case of total
disability due to the right knee injury, the left knee injury, or the injuries to
both knees in combination.[2]   If claimant
establishes his prima facie case, the burden shifts to employer to establish
suitable alternate employment.[3]   See
Moore, 126 F.3d at 256, 31 BRBS at 119 (CRT); Lentz, 852 F.2d at 129,
21 BRBS at 109 (CRT).  If employer does not establish suitable alternate
employment, claimant is entitled to permanent total disability benefits and is not
limited to scheduled awards.[4]   PEPCO v.
Director, OWCP, 449 U.S. 268, 277 n. 17, 14 BRBS 363, 366-367 n. 17 (1980);
Lentz, 852 F.2d at 129, 21 BRBS at 109 (CRT).  If employer establishes
suitable alternate employment, claimant is limited to two scheduled awards for his
knee impairments.[5]   PEPCO, 449 U.S. at
268, 14 BRBS at 363; Byrd v. Toledo Overseas Terminal, 18 BRBS 144 (1986);
Brandt v. Avondale Shipyards, Inc., 16 BRBS 120 (1984); 33 U.S.C.
§908(c)(22).
     Assuming the administrative law judge again awards claimant benefits under the
schedule, we address claimant's contention that the administrative law judge erred
in finding he has only a 40 percent impairment to the right leg.  With regard to
the right knee injury, the administrative law judge discussed and weighed the
opinions of Drs. Hunt, Honick, and Reahl, who found that claimant suffered an
impairment to the right leg of 50 percent, 45 percent, and 35 percent,
respectively.  Decision and Order at 11-12; Cl. Ex. 9; Emp. Exs. 4, 11.  The
administrative law judge found that 50 percent seemed a little high, and that a
rating of 40 percent represented a reasonable approximation of impairment to
claimant's right leg, after noting that he was not bound to accept any physician's
report as definitive.  Decision and Order at 12.  The administrative law judge,
however, did not discuss and weigh the relevant opinion of Dr. O'Hearn that
claimant has a 60 percent impairment to the right leg.  Cl. Ex. 7.  We, therefore,
vacate the administrative law judge's determination that claimant suffered a 40
percent permanent partial impairment to the right leg.  If, on remand, the
administrative law judge finds that employer established suitable alternate
employment, the administrative law judge must discuss and weigh Dr. O'Hearn's
opinion with the opinions of Drs. Hunt, Honick, and Reahl, before determining the
percentage permanent partial impairment claimant has to his right leg. See
generally Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154 (1993);
Bachich v. Seatrain Terminals of California, 9 BRBS 184 (1978); Mazze v.
Frank J. Holleran, Inc., 9 BRBS 1053 (1978).    

     Claimant also contends that the administrative law judge erred in awarding him
benefits for only a five percent impairment to the left leg.  Contrary to
claimant's contention, however, the administrative law judge acted within his
discretion in crediting Dr. Hunt's opinion that claimant has a five percent
impairment after noting that Dr. Reahl, who provided the other relevant opinion of
record, did not explain his reason for concluding that claimant suffered a 28
percent impairment to the left knee.  Decision and Order at 12; Cl. Ex. 9; Emp. Ex.
4.  Consequently, we affirm the administrative law judge's award of permanent
partial disability benefits to claimant's left leg if on remand the administrative
law judge finds that employer established suitable alternate employment.     

     Claimant additionally contends that the administrative law judge abused his
discretion in considering Dr. Halikman's reports as to the date claimant was able
to return to work from  his left knee injury, as they were not admitted into the
record.  At the hearing before the administrative law judge, a dispute arose
between the parties as to the amount of compensation paid claimant for the left
knee injury.  Tr. at 17-27.  Employer offered to take the post-hearing deposition
of Mr. Wessel, employer's assistant vice-president, to clarify the amount paid
claimant.  Tr. at 42-44, 287.  At Mr. Wessel's post-hearing deposition, over
objection by claimant's counsel, employer submitted Dr. Halikman's reports to
explain why employer stopped paying claimant temporary total disability benefits
on November 16, 1994, for the left knee injury.  Emp. Ex. 16 at 8-10.  In his
decision, the administrative law judge relied on Dr. Halikman's reports, see
discussion, infra, but never formally admitted them. See Decision
and Order at 13.  Although claimant's counsel objected to Dr. Halikman's reports
at the post-hearing deposition of Mr. Wessel, claimant's counsel never presented
his objections before the administrative law judge in his post-hearing memorandum
or in a motion for reconsideration.  Consequently, we hold that claimant's counsel
failed to preserve his objection to Dr. Halikman's reports. See generally Long
v. Director, OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th Cir. 1985);
Vonthronsohnhaus v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1990); Cl. Exs.
4 and 5 to Emp. Ex. 16; Emp. Exs. 2 and 5 to Emp. Ex. 16.  Nevertheless, we note
that the administrative law judge should formally admit Dr. Halikman's reports into
the record on remand.  

     Claimant next contends that the administrative law judge erred in stopping his
temporary total disability benefits for the left leg on November 16, 1994.  We
reject this contention as the administrative law judge rationally relied on the
opinion of Dr. Halikman, that claimant's left knee had recovered sufficiently by
that date so that he could return to his job, as supported by the opinions of Drs.
Hunt and Matz, that claimant could return to work from the left leg injury absent
the degenerative right knee.[6]   Decision and
Order at 13-14; Emp. Exs. 3, 4; Emp. Ex. 2 to Emp. Ex. 16.  We, therefore, affirm
the administrative law judge's cessation of temporary total disability benefits for
the left knee injury on November 16, 1994.                       

     Claimant lastly contends that the administrative law judge erred in denying
him benefits for his back injury.  Section 20(a) applies to the issue of whether
claimant's injury or disability is work-related. Kubin v. Pro-Football,
Inc., 29 BRBS 117 (1995).  The presumption is invoked if claimant establishes
his prima facie case--the existence of a harm and working conditions that
could have caused the harm. Kelaita v. Triple A Machine Shop, 13 BRBS 326
(1981).  Once the Section 20(a) presumption is invoked, the burden shifts to
employer to rebut the presumption with substantial evidence that claimant's
condition is not caused or aggravated by his employment. See Bridier v. Alabama
Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995); Sam v. Loffland Bros.,
19 BRBS 288 (1987).  If the administrative law judge finds that the Section 20(a)
presumption is rebutted, it falls out of the case and claimant must establish a
causal relationship based on the record as a whole. See Moore, 126 F.3d at
256, 31 BRBS at 119 (CRT).  

     Although the administrative law judge in this case did not analyze the
evidence in terms of the Section 20(a) presumption, any error is harmless as the
administrative law judge's finding that claimant's impairment to his low back is
not work-related is supported by substantial evidence. Bass v. Broadway
Maintenance, 28 BRBS 11 (1994).  In concluding that claimant's injury to his
low back was not work-related, the administrative law judge discussed and weighed
the relevant opinions of Drs. Oleynick, Fiore, Hunt, and Matz, that claimant's back
injury was not caused or aggravated by his employment, and gave these opinions
greater weight than the contrary opinions of Drs. Reahl, O'Hearn, and MacGibbon.[7]   Decision and Order at 9-11; Emp. Exs. 1, 3, 4,
6; Tr. at 183-187.  As this finding is within his discretion, see Uglesich v.
Stevedoring Services of America, 24 BRBS 180, 183 (1991),  we affirm the
administrative law judge's denial of benefits for claimant's back injury.        
  

     Turning to employer's appeal of the administrative law judge's award of an
attorney's fee to claimant's counsel, we hold that the administrative law judge's
reduction in the number of hours from 99.5 to 58.5 is reasonable in light of the
amount of the award of benefits.  Moreover, by virtue of our remand herein,
claimant's success may increase.  See Hensley v. Eckerhart, 461 U.S. 424
(1983); see also George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 25 BRBS
161 (CRT)(D.C. Cir. 1992).  In addition, contrary to employer's contention, the fee
petition comports with the requirements of 20 C.F.R. §702.132.  We reject
employer's challenge to the administrative law judge's award of the requested
hourly rate of $200 as employer has failed to establish that the administrative law
judge abused his discretion in this regard.[8]  
See Canty v. S.E.L. Maduro, 26 BRBS 147 (1992).  We, therefore, affirm the
administrative law judge's award of an attorney's fee.  
     Accordingly, the administrative law judge's decision denying total disability
benefits, and his finding that claimant has a 40 percent impairment to the right
leg are vacated, and the case is remanded to the administrative law judge for
further consideration consistent with this opinion.  In all other respects, the
Decision and Order - Granting Benefits is affirmed.  The administrative law judge's
Supplemental Decision and Order Awarding Attorney's Fees is affirmed.      

     SO ORDERED.



                                                                           
                           BETTY JEAN HALL, Chief  
                         Administrative Appeals Judge



                                                                           

                         ROY P. SMITH   
                         Administrative Appeals Judge


                                       
                                                                           

                         JAMES F. BROWN   
                         Administrative Appeals Judge




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Footnotes.


1)There was no time lost due to the January 19, 1994 left knee injury. Back to Text
2)The administrative law judge noted that there was no apparent dispute that claimant cannot go back to his usual longshore work but found that claimant could not go back to work due to his disability retirement award rather than any actual medical disability. Decision and Order at 9. Contrary to the administrative law judge's finding, however, the fact that claimant retired on disability is not relevant to the issue of whether claimant's work injury precludes his return to usual work. Harmon v. Sea-Land Service, Inc., 31 BRBS 45 (1997). Back to Text
3) The administrative law judge incorrectly stated in his decision that, "It was unnecessary, therefore, for Employer to conduct a job market survey, although given the liberality of the Act and the unusual fact situation here, Employer was fully justified in doing so in order to protect its own interests." Decision and Order at 14. Back to Text
4)However, claimant cannot be awarded a permanent total disability award for one knee and a scheduled award for the other knee. Rupert v. Todd Shipyards Corp., 239 F.2d 273 (9th Cir. 1956); Turney v. Bethlehem Steel Corp., 17 BRBS 232 (1985). Back to Text
5)Although claimant injured both legs, he is not presumed to be permanently totally disabled under Section 8(a) of the Act, 33 U.S.C. §908(a), because he did not sustain a total loss of use of both legs. See Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979). Moreover, we reject claimant's contention that he should receive a permanent total disability award on his two scheduled knee injuries based on a "multiple impairment principle," i.e., a claimant with multiple injuries can be permanently totally disabled, even though each individual injury alone would be subject to the schedule, as there is no authority under the Act for such an award. Back to Text
6)Claimant's remaining contentions with regard to this issue lack merit. The administrative law judge was not required to award claimant temporary total disability benefits until he completed the vocational rehabilitation process on September 8, 1995. Price v. Dravo Corp., 20 BRBS 94 (1987); 33 U.S.C. §939(c)(2); 20 C.F.R. §§702.501-702.508. Despite the administrative law judge's assertion that claimant's attendance at the Apple Butter Festival could indicate an intervening cause of claimant's left knee disability, the administrative law judge did not rely on this reasoning in ceasing temporary total disability benefits. Decision and Order at 13; Cl. Ex. 7. Also, the administrative law judge did not rely on his observation that surgery on the left knee was unnecessary to cease temporary total disability benefits, but rather relied on Dr. Halikman's reports as supported by the opinions of Drs. Hunt and Matz. Decision and Order at 12-13. Back to Text
7)Claimant alleged that his back injury was caused or aggravated by his work-related knee injuries. Back to Text
8) We deny claimant's motion to dismiss employer's appeal as claimant did not file the motion in a separate document as required by the regulations and as we accept employer's memorandum of law in support of its appeal as employer's petition for review and brief as within our discretionary authority. 20 C.F.R. §§802.211(d); 802.219(b). We will not address employer's challenge to counsel's use of the quarter-hour minimum billing method for the first time on appeal as employer did not raise it below. See Ross v. Ingalls Shipbuilding, Inc, 29 BRBS 42 (1995). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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