Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB Nos. 00-0396
                                   and 01-0519


EDWARD NEAL MARKS                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
TRINITY MARINE GROUP                    )
                                        )
     and                                )
                                        )
RELIANCE NATIONAL INDEMNITY             )    DATE ISSUED:   02/07/2002
2002
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeals of the Decision and Order and the Decision and Order on Section
     22 Modification of Lee J. Romero, Jr., Administrative Law Judge, United
     States Department of Labor.

     J. Paul Demarest and Seth H. Schaumburg (Favret, Demarest, Russo &
     Lutkewitte), New Orleans, Louisiana, for claimant.

     Collins C. Rossi and Richard C. Ely, Jr., Metairie, Louisiana, for
     employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order and the Decision and Order on Section
22 Modification (1999-LHC-586) of Administrative Law Judge Lee J. Romero, Jr.,
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 if they 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).

     Claimant, who was employed as a welder for employer, suffered a work-related
back injury on May 2, 1997.  Following his injury, claimant continued to work for
employer in a light duty capacity until he was taken off work by Dr. Fleming, his
treating orthopedist, on June 23, 1997.  Employer voluntarily paid claimant
temporary total disability compensation from June 24, 1997 through September 25,
1998.  33 U.S.C. §908(b).

     In a Decision and Order issued on November 30, 1999, the administrative law
judge found that claimant had not yet reached maximum medical improvement and that
he was unable to return to his former employment duties as a welder for employer. 
The administrative law judge further found that employer, based upon the labor
market survey conducted by Ms. Favaloro, established the availability of suitable
alternate employment  as of May 4, 1999.  Accordingly, the administrative law judge
awarded claimant temporary total disability compensation from May 2, 1997 through
May 3, 1999, and temporary partial disability compensation from May 4, 1999, and
continuing.  The administrative law judge additionally found claimant entitled to
future medical treatment, including the surgical intervention recommended by his
treating physician, Dr. Fleming, for his back condition arising from the May 2,
1997, work injury.

     Employer appealed this decision to the Board. BRB No. 00-0396.  Thereafter,
employer moved that the Board suspend its appeal pending consideration by the
administrative law judge of employer's request for modification under Section 22
of the Act, 33 U.S.C. §922, of the administrative law judge's Decision and
Order.  By Order dated March 13, 2000, the Board dismissed employer's appeal and
remanded the case to the administrative law judge for modification proceedings. 
33 U.S.C. §922; 20 C.F.R. §§725.310, 802.301.

     In the course of modification proceedings before the administrative law judge,
a second hearing was held and evidence submitted with respect to the contested
issues concerning  employer's liability for medical care provided by Dr. Phillips
following the retirement of claimant's authorized physician Dr. Fleming, and
whether there was a change in claimant's physical or economic condition.  In his
Decision and Order on Section 22 Modification issued on January 31, 2001, the
administrative law judge denied employer's modification request in its entirety,
finding employer responsible for the medical treatment provided by Dr. Phillips and
determining that there had been no change in claimant's physical or economic
condition.


     Thereafter, employer filed an appeal of the administrative law judge's denial
of modification and additionally requested that its prior appeal, BRB No. 00-0396,
be reinstated by the Board.  By Order dated March 22, 2001, the Board acknowledged
employer's appeal of the administrative law judge's modification denial, BRB No.
01-0519, reinstated employer's appeal in BRB No. 00-0396, and consolidated the two
appeals for purposes of rendering a decision.  Thus, in the appeals presently
pending before the Board, employer challenges the administrative law judge's
original Decision and Order awarding benefits, as well as the administrative law
judge's Decision and Order denying employer's request for modification.[1]   Claimant responds, urging affirmance of the
administrative law judge's decisions.

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based upon a mistake of fact in the initial decision or a change in
claimant's physical or economic condition.   See Metropolitan Stevedore Co. v. Rambo
[Rambo I], 515 U.S. 291, 30 BRBS 1(CRT) (1995).  It is well-established that the party requesting
modification bears the burden of proof.   Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121,
31 BRBS 54(CRT) (1997); Kinlaw v. Stevens Shipping & Terminal Co., 33 BRBS 68
(1999), aff'd mem., 238 F.3d 414 (4th Cir. 2000)(table).  To reopen the
record under Section 22, the moving party must allege a mistake of fact or change
in condition and assert that the evidence to be produced or of record would bring
the case within the scope of Section 22. See Kinlaw,  33 BRBS 73; Duran
v. Interport Maintenance Co., 27 BRBS 8, 14 (1993).

     Where a party seeks modification based on a change in condition, an initial
determination must be made as to whether the petitioning party has met its burden
of  demonstrating that there has been a change in claimant's condition. See
Jensen v. Weeks Marine, Inc., 34 BRBS 147, 149 (2000); Duran, 27 BRBS
at 14.  This initial inquiry involves consideration of whether the newly submitted
evidence is sufficient to bring the claim within the scope of Section 22.
Jensen, 34 BRBS at 149.  If so, then the administrative law judge must
determine whether modification is warranted by considering all of the relevant
evidence of record to discern whether there was, in fact, a change in claimant's
physical or economic condition from the time of the initial award to the time
modification is sought. Id.  Once the petitioner meets its initial burden
of demonstrating a basis for modification, the standards for determining the extent
of disability are the same as in the initial proceeding. See Rambo II, 521
U.S. 121, 31 BRBS 54(CRT); Jensen, 34 BRBS at 149; Delay v.  Jones
Washington Stevedoring Co., 31 BRBS 197, 204 (1998).

     In the instant case, the administrative law judge determined, consistent with
the Board's decisions in Jensen, 34 BRBS at 149 and Duran, 27 BRBS
at 14, that employer met its burden of offering evidence of a change in condition
sufficient to bring the claim within the scope of Section 22.  Accordingly, the
administrative law judge proceeded to consider all of the relevant record evidence
regarding the issue of employer's liability for medical care rendered by Dr.
Phillips as well as whether claimant's physical or economic condition had changed.

     The administrative law judge first considered the issue of employer's
liability pursuant to Section 7(d) of the Act, 33 U.S.C. §907(d), for the
payment of Dr. Phillips's treatment of claimant.[2] 
 As acknowledged by the administrative law judge, the Board has held that where a
claimant's authorized physician retires from practice and refers his patients to
a new doctor, no new authorization is required and the new doctor must be
considered to be the physician authorized to provide medical treatment. Maguire
v. Todd Shipyards Corp., 25 BRBS 299, 301-302 (1992).  Stating that there was
a factual dispute as to whom Dr. Fleming referred claimant for medical treatment,
the administrative law judge initially examined the record evidence relevant to
this issue.[3]   Specifically, the administrative
law judge first considered the testimonial and written evidence in support of
claimant's position that Dr. Fleming referred him to Dr. Rozas of the Bone and
Joint Clinic, which included the following: that upon reporting to that clinic for
his November 29, 1999, appointment he was under the impression that he was to see
Dr. Rozas; that he was not made aware that his examination was actually conducted
by Dr. Gallagher, another physician practicing in the clinic, until after the
examination by Dr. Gallagher was completed; and that he never considered Dr.
Gallagher to be his choice of treating physician.  The administrative law judge
next considered the contrary evidence offered by employer in support of its
contention that Dr. Fleming referred claimant to Dr. Gallagher, i.e., that
claimant was advised that his appointment was with Dr. Gallagher and that claimant
objected to Dr. Gallagher only after Dr. Gallagher released claimant with no work
restrictions.  After evaluating the evidence of record, the administrative law
judge found, first, that the weight of the credible evidence demonstrates that Dr.
Fleming referred claimant to Dr. Rozas, and, second, that claimant never accepted
Dr. Gallagher as his treating physician. See Decision and Order on
Modification at 17-19.

     Although employer argues on appeal that the accounts of events provided by
claimant and his wife are contradicted by various pieces of documentary evidence
and by the testimony of Dr. Gallagher and medical assistant Ms. Patai, we conclude
that the competing characterization of the record evidence and assessment of the
witnesses' credibility offered by employer does not provide a basis for overturning
the administrative law judge's credibility determinations and evaluation of the
evidence.  We note, in this regard, that an administrative law judge is entitled
to evaluate the credibility of all witnesses, and has considerable discretion in
evaluating the evidence of record. See James J. Flanagan Stevedores, Inc. v. Gallagher,
219 F.3d 426, 34 BRBS 35(CRT) (5th Cir. 2000); Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th
Cir. 1962), cert. denied, 373 U.S. 954 (1963).  Moreover, the administrative law judge is entitled to draw
his own inferences from the evidence, and his selection among competing inferences must be affirmed if supported
by substantial evidence and in accordance with law. See Gallagher, 219 F.3d at 430, 34
BRBS at 37(CRT); Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 29 BRBS
79(CRT) (5th Cir. 1995).  As the administrative law judge's assessment of the
credibility of each of these witnesses and his inferences drawn from the record
evidence are rational, they are affirmed. Id. 


     Having affirmed the administrative law judge's finding that following the
retirement of Dr. Fleming, Dr. Rozas was to be considered claimant's authorized
treating physician, we also affirm his further finding that upon the unavailability
of Dr. Rozas to provide medical treatment to claimant, claimant was presented with
the opportunity to choose a new treating physician.  We further affirm the
administrative law judge's determination that employer's refusal to consent to
claimant's request to select Dr. Phillips as his treating physician released
claimant from his obligation to continue to seek approval for his subsequent
treatment,[4]  as well as his finding that claimant
thereafter satisfied the requirement of establishing that the treatment he
subsequently procured from Dr. Phillips on his own initiative was reasonable and
necessary. See Ezell v. Direct Labor, Inc., 33 BRBS 19, 28 (1999); Schoen
v. U.S. Chamber of Commerce, 30 BRBS 112 (1996); Anderson v. Todd Shipyards
Corp., 22 BRBS 20 (1989).  Accordingly, the administrative law judge's
determination that employer is responsible for claimant's medical treatment
provided by Dr. Phillips is affirmed. Id.  

     After determining that Dr. Phillips is claimant's choice of treating
physician, the administrative law judge next considered whether the medical and
vocational evidence submitted in the modification proceeding established a change
in claimant's physical condition or residual wage-earning capacity.  In
subsequently rejecting employer's contention that claimant's physical condition had
improved following the issuance of his original Decision and Order, the
administrative law judge credited Dr. Phillips's opinion, which he found consistent
with Dr. Fleming's opinion that claimant's work-related disability precludes his
return to his former employment. See 2d EX-N, p.18.  On appeal, employer
contends that the administrative law judge should have discounted the opinion of
Dr. Phillips and, rather, should have found persuasive Dr. Gallagher's opinion that
claimant is capable of returning to his previous employment duties with employer. 
Employer requests, in this regard, that the Board take judicial notice of the
ruling of a Louisiana state workers' compensation judge in the matter of Paul
J. Simmons v. Lowes Home Imp. Center, wherein Dr. Phillips was cited for being
in violation of LSA-R.S. 23:1208 and his medical opinion was discounted in its
entirety.  We decline to disturb the administrative law judge's credibility
determinations and weighing of the evidence on the basis urged by employer.  The
state adjudicator's evaluation of Dr. Phillips's medical opinion in a case
involving a different claimant and medical evidence does not affect the
administrative law judge's authority to weigh the evidence in this case.[5]   It is well-established, moreover, that the Board
does not have the authority to engage in a de novo review of the evidence
or to substitute its credibility determinations for those of the administrative law
judge.    See Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944, 25
BRBS 78, 80(CRT)(5th Cir. 1991); see also Gallagher, 219 F.3d at 430, 34
BRBS at 37(CRT); Mendoza, 46 F.3d at 500-501, 29 BRBS at 80-81(CRT).  In
addition, the United States Court of Appeals for the Fifth Circuit, wherein this
case arises, has declined to adopt a rule that an administrative law judge must
specifically discuss the evidence that is being  rejected. See Gallagher,
219 F.3d at 430, 34 BRBS at 37(CRT); Falco v. Shalala, 27 F.3d 160, 163 (5th
Cir. 1994).  As the administrative law judge's credibility determinations in this
case are rational and the credited opinions of Drs. Phillips and Fleming constitute
substantial evidence in support of the administrative law judge's finding that
claimant remains unable to perform his former employment, the administrative law
judge's conclusion that claimant's physical condition has not changed since the
issuance of the original Decision and Order is affirmed. See Gallagher, 219
F.3d at 430, 34 BRBS at 37(CRT); Mendoza, 46 F.3d at 500-501, 29 BRBS at 80-81(CRT). 

     Next, the administrative law judge determined that the vocational evidence
submitted by employer in the modification proceeding failed to demonstrate a change
in claimant's residual wage-earning capacity.  Specifically, the administrative law
judge credited Dr. Phillips's opinion that claimant could perform the physical
requirements of three of the jobs listed in Ms. Favaloro's labor market survey:
unarmed security officer, dispatcher, and checker.  Thus, the administrative law
judge found that employer established the availability of suitable alternate
employment with these three positions.  Averaging the hourly wage rate ranges for
these three positions,[6]  the administrative law
judge determined that claimant's residual weekly wage-earning capacity is $267.60,
an amount substantially similar to the $270.40 residual weekly wage-earning
capacity figure reached in his original Decision and Order in this case. See
33 U.S.C. §908(h).


     Employer challenges the administrative law judge's post-injury wage-earning
capacity calculation on the basis that the administrative law judge failed to
consider in his calculation the shop welder and courier positions listed in Ms.
Favaloro's labor market survey as suitable alternate employment available to
claimant.  Contending that other evidence indicates that claimant could perform the
shop welder and courier positions, employer argues that the administrative law
judge erred in discounting these two jobs which were disapproved by Dr. Phillips. 
Specifically, employer first contends that Dr. Phillips's disapproval of the shop
welder position on the basis that claimant could not lift up to 50 pounds is
unsupported by the record.  However, contrary to employer's assertion, in her
letters to Dr. Gallagher dated August 1, 2000 and August 17, 2000, Ms. Favaloro
described the shop welder job requirements as including occasional lifting of up
to 50 pounds. See 2d EX-J, pp. 1, 4.  With respect to the courier position,
employer avers that Dr. Phillips's deposition testimony that claimant would be
required to lift 40 pounds is inconsistent with the job requirements provided by
Ms. Favaloro.[7]   In expressing his concern about
claimant's ability to perform the courier position identified by Ms. Favaloro,
however, Dr. Phillips mentioned not only the lifting involved but also the fact
that a courier would be required to get in and out of the car all day. See
2d D&O at 10; 2d EX-N, p. 21.  Thus, the administrative law judge's  implicit
determination that the shop welder and courier positions offered by employer were
unsuitable for claimant is rational and supported by substantial evidence. See
generally Mijangos, 948 F.2d 941, 25 BRBS 78(CRT); New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  As the
administrative law judge's determination, on modification, of claimant's post-injury wage-earning capacity is reasonable, see Avondale Industries, Inc. v.
Pulliam, 137 F.3d 326, 32 BRBS 65(CRT) (5th Cir. 1998), his conclusion that
employer failed to establish a change in claimant's economic condition is affirmed.
See generally Jensen, 34 BRBS 147.

     Lastly, we address claimant's counsel's request for an attorney's fee for work
performed before the Board in connection with his defense of employer's multiple
appeals.  Claimant's counsel initially requested a fee of $6,669.65, representing
2 hours of legal services performed by J. Paul Demarest at the hourly rate of $175
and 39.9 hours of legal services performed by Seth H. Schaumberg at the hourly rate
of $150, as well as expenses of $334.65, for work performed in regard to BRB No.
00-0396.  Employer submitted objections to this fee petition, challenging its
liability for a fee and the adequacy of the fee petition.  In addition, employer
contended that the hourly rates and the number of hours claimed are excessive. 
Employer also challenged specific entries by claimant's counsel as reflecting
either uncompensable clerical work or excessive time.  Lastly, employer objected
to the request for $334.65 in expenses.  Thereafter, claimant's counsel filed a
response memorandum to employer's objections, and additionally submitted a
supplemental fee petition, in which counsel deleted his previous request for
expenses of $334.65 and requested an additional fee in the amount of $227.50, for
itemized services by Attorney Demarest performed from July 23, 2001 through August
27, 2001, which were not included in his original fee request.  In all other
respects, counsel's supplemental fee petition is identical to the original petition
filed with the Board.

     As an initial matter, employer's general objection to its liability for a fee
is rejected.  As claimant has successfully defended his award on appeal, his
attorneys are entitled to a fee reasonably commensurate with the work performed
before the Board. See Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990),
aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom. Argonaut Ins. Co.
v. Mikell, 14 F.3d 58 (11th Cir. 1994); Downey v. General Dynamics
Corp., 22 BRBS 203 (1989); 33 U.S.C. §928; 20 C.F.R. §802.203. 
Moreover, after reviewing counsel's fee petitions, we disagree that the petitions
are inadequate.  With the exception of certain entries discussed hereafter,
counsel's fee petitions contain sufficient information to satisfy the regulatory
requirements set forth at 20 C.F.R. §§702.132 and 802.203. See
generally Forlong v. American Security & Trust Co., 21 BRBS 155 (1988).  We
further reject employer's objection to the hourly rates sought by claimant's
attorneys.  We consider the $175 and $150 hourly rates requested by counsel to be
reasonable and commensurate with the rates the Board has previously awarded in the
geographic area in which this case arises for similarly complex cases. See
Hargrove v. Strachan Shipping Co., 32 BRBS 224 (1998), aff'g on recon.
32 BRBS 11 (1998); Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996).  

     Employer next objects to the charges itemized in Entry Nos. 5 and 6, involving
the organization of exhibits and pleadings. See Clt's Fee Petition at 1. 
We agree that this work appears to be clerical in nature; as time spent on
traditional clerical duties by an attorney is not compensable, we disallow the 1.3
hours itemized in Entry Nos. 5 and 6. See Quintana v. Crescent Wharf & Whse.
Co., 18 BRBS 254 (1986); Staffile v. International Terminal Operating Co.,
Inc., 12 BRBS 895 (1980).

     Employer also challenges, as excessive, the time sought for the preparation
of claimant's response brief.[8]   Specifically,
employer first challenges the amount of time itemized for review of the file and
for preparation of the Statement of Facts and Statement of the Case.[9]   We consider the 4.3 hours
itemized in Entry Nos. 13 through 22 involving review of the file to be reasonable,
and therefore approve these entries.  We agree with employer, however, that the 8.8
hours itemized in Entry Nos. 23 through 27 and 33 for preparation of the Statement
of Facts and Statement of the Case are excessive, and reduce the time itemized in
these entries to 6.8 hours.  Employer next challenges, as excessive, the 9.6 hours
itemized in Entry Nos. 30 through 32, 34 through 40, and 43 for preparation of the
argument regarding choice of physician presented in claimant's response brief.  In
view of the complicated set of facts and the complexity of the legal issues with
respect to counsel's choice of physician argument, we do not agree that the 9.6
hours spent by counsel in preparing this argument is excessive.  We do agree with
employer, however, that the 4.7 hours itemized in Entry Nos. 49, 50 and 53 for
review and proofreading of claimant's response brief is excessive, and reduce the
time for that activity to 2.7 hours.  Lastly, we disallow Entry Nos. 55 through 59,
representing 1.05 hours, which involve correspondence related to claimant's
attempts to secure payment for claimant's past medical treatment, as well as a
request for an informal conference with the district director.  These services are
not related to the proceedings before the Board, and counsel should seek approval
for this legal work from the district director. See 33 U.S.C.
§§918, 928(c); Lewis v. Todd Pacific Shipyards Corp., 30 BRBS 154,
160 (1996).  Consequently, we approve a fee of $5,231.25, representing .75 hour at
a rate of $175 per hour and 34 hours at a rate of $150 per hour, payable by
employer. 

     Accordingly, the Decision and Order and the Decision and Order on Section 22
Modification of the administrative law judge are affirmed.  Claimant's attorneys
are awarded a fee of $5,231.25 for work performed before the Board to be paid
directly to counsel by employer.

     SO ORDERED.


                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)Employer notes, with respect to its appeal of the administrative law judge's original Decision and Order, that the retirement of Dr. Fleming has rendered moot the issue of Section 7, 33 U.S.C. §907, medical benefits for any surgical treatment recommended by Dr. Fleming. See Emp. brief at 2. Although employer, in its consolidated Petition for Review and brief, does not request that its appeal of the administrative law judge's original Decision and Order, BRB No. 00-0396, be dismissed, the arguments presented in its brief are directed to the administrative law judge's denial of modification. Accordingly, it is these arguments which will be considered by the Board. See 20 C.F.R. §802.211. Back to Text
2)Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth the prerequisites for an employer's liability for payment or reimbursement of medical expenses incurred by claimant. The Board has held that Section 7(d) requires that a claimant request his employer's authorization for medical services performed by an physician, including the claimant's initial choice. Ezell v. Direct Labor, Inc., 33 BRBS 19, 28 (1999); Maguire v. Todd Shipyards Corp., 25 BRBS 299 (1992); Shahady v. Atlas Tile & Marble, 13 BRBS 1007 (1981)(Miller, J., dissenting), rev'd on other grounds, 682 F.2d 968 (D.C. Cir. 1982), cert. denied, 459 U.S. 1146 (1983). Where a claimant's request for authorization is refused by the employer, claimant is released from the obligation of continuing to seek approval for his subsequent treatment and thereafter need only establish that the treatment he subsequently procured on his own initiative was reasonable and necessary in order to be entitled to such treatment at employer's expense. See Ezell, 33 BRBS at 28; Schoen v. U.S. Chamber of Commerce, 30 BRBS 112, 113 (1996); Anderson v. Todd Shipyards Corp., 22 BRBS 20, 23 (1989). Back to Text
3)The administrative law judge correctly found that the record in this case contains neither documentation of Dr. Fleming's referral nor testimony by Dr. Fleming. See Decision and Order on Section 22 Modification at 16-17. Back to Text
4)In this regard, we also uphold the administrative law judge's rejection of employer's contention that claimant's delay in requesting treatment by Dr. Phillips resulted in a waiver of his right to choose Dr. Phillips as his treating physician. Back to Text
5)In the case cited by employer, the adjudicator rejected Dr. Phillips's opinion, finding that his findings and decision to perform surgery on claimant's back were based on claimant's subjective complaints. The judge found, however, that claimant's credibility was flawed as he engaged in symptom magnification, malingering, and exaggerations of pain and false statements to his doctors. Thus, the judge credited the opinions of three competent surgeons who stated that surgery was unnecessary. Back to Text
6)The United States Court of Appeals for the Fifth Circuit has upheld the calculation of post-injury wage-earning capacity on the basis of averaging the range of salaries identified for suitable alternate employment. See Avondale Industries, Inc. v. Pulliam, 137 F.3d 326, 32 BRBS 65(CRT) (5th Cir. 1998); Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318, 31 BRBS 129, 133(CRT) (5th Cir. 1997). Employer does not challenge on appeal the administrative law judge's use of averaging in the instant case. Back to Text
7)Ms. Favaloro indicated that the courier position involved the lifting of less than 20 pounds. 2d EX-J, p.6. Back to Text
8)In addition, employer challenges the 1.2 hours claimed for reviewing the administrative law judge's February 2, 2001 Decision and Order. See Clt's Fee Petition, Entry No. 12. We consider the 1.2 hours itemized on this date a reasonable amount of time spent in the necessary task of reviewing the Decision and Order in order to prepare claimant's response brief. Back to Text
9)In this regard, we disallow the 1.8 hours itemized in Entry Nos. 8, 9, 10, 28 and 29, related to preparation of a motion to strike exhibit. As such motion was not filed with the Board, and as counsel has not demonstrated why performance of this work was viewed as necessary to a successful defense of employer's appeal, these entries are disallowed. We further disallow the .5 hour itemized in Entry 11 because the nature of that work is not adequately described. See 20 C.F.R. §§702.132, 802.203. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document