Skip to page content
Benefits Review Board
Bookmark and Share

                                  BRB No. 97-579

KAMEL KADEM                             )
          Claimant-Respondent           )
     v.                                 )
WALASHEK INDUSTRIAL & MARINE            )    DATE ISSUED:   01/15/1998

     and                                )
COMPANY                                 )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Order Approving Settlement of Thomas Schneider,
     Administrative Law Judge, United States Department of Labor.

     William E. Weigand (Law Offices of William E. Weigand, P.S.), Seattle,
     Washington, for claimant.

     Raymond H. Warns, Jr. (Faulkner, Banfield, Doogan & Holmes), Seattle,
     Washington, for employer/carrier.

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


     Employer appeals the Order Approving Settlement (95-LHC-3075) of
Administrative Law Judge Thomas Schneider awarding an attorney's fee 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).  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, e.g., Muscella v. Sun Shipbuilding & Dry  Dock Co., 12 BRBS
272 (1980).

     Claimant injured his back when he slipped and fell while working for employer
on  October 12, 1991.  He was subsequently diagnosed with a herniated disc and
retained the services of attorney Kevin Coluccio on November 11, 1991.  Employer
voluntarily paid claimant  temporary total disability compensation, based on an
average weekly wage of $440,  from October 16, 1991, to July 15, 1992, and from
July 17, 1992, to October 28, 1992, based on an average weekly wage of $262.75. 
33 U.S.C. §908(b).  Employer voluntarily provided medical benefits to claimant
until February 1993. 33 U.S.C. §907.   On March 16, 1993, claimant discharged Mr.
Coluccio and, on April 5, 1993,  retained as his attorney William Weigand.  On
September 15, 1993, Mr. Weigand represented claimant at an informal conference
regarding unpaid medical bills and claimant's entitlement to partial disability
benefits, obtaining payment of approximately $200 in past due bills.  Employer
filed a Notice of Controversion regarding its liability for compensation and
medical benefits on November 11, 1993.  

     On August 29, 1995, claimant requested a formal hearing, which was thereafter
scheduled for September 24, 1996.  On the morning of the hearing, the parties
agreed to a settlement for a sum of $20,000, representing $12,500 in compensation
and $7,500 in lieu of continuing medical benefits for claimant's back injury.  The
parties  also agreed that the administrative law judge would decide the unresolved
attorney fee issue.  Mr. Coluccio requested a fee of $1,160, plus $39.26 in costs,
for services performed on behalf of claimant prior to his discharge in March 1993. 
Mr. Weigand requested a fee of $19,887.50, representing 159.1 hours of services
performed at $125 per hour, plus $3,714.04 in costs.  Employer objected to these
fee requests, contending that Mr. Coluccio did not engage in a successful
prosecution of claimant's claim and asserting 117 specific time objections to the
attorney fee petition of Mr. Weigand, as well as an objection to the hourly rate

     In his Order Approving Settlement, the administrative law judge reduced the
fee requests of Mr. Coluccio and Mr. Weigand by approximately 25 percent. 
Specifically, the administrative law judge found, inter alia, that Mr.
Coluccio's records were used by claimant's later counsel, Mr. Weigand, and thus
awarded him a reduced fee of  $1,000, including costs.   The administrative law
judge next reduced Mr. Weigand's requested hourly rate of $125  to $90 and awarded
a fee of $14,319, representing the 159.1 hours requested at an hourly rate of $90,
plus $2,964.04 in costs.

     On appeal, employer challenges the fees awarded by the administrative law
judge to both attorneys.   Claimant responds, urging affirmance.  

     Employer initially contends that Mr. Coluccio is not entitled to a fee because he did not successfully
prosecute the instant claim on behalf of claimant.  In his Order, the administrative law judge
specifically addressed and rejected employer's contention that Mr. Coluccio did not
engage in a successful prosecution of the claim, finding that Mr. Coluccio
presented a demand of $15,000 to settle the claim in March 1993, which was more
than employer was then offering and only $5,000 less than the $20,000 the case
ultimately settled for.  Moreover, the administrative law judge credited Mr.
Weigand's statement that he used some of the records he received from Mr. Coluccio
after his discharge by claimant in prosecuting claimant's claim.

     Under Section 28(a) of the Act, 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, the claimant is entitled to an attorney's fee award
payable by the employer.  33 U.S.C. §928(a).  Under Section 28(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). See, e.g., Tait v. Ingalls Shipbuilding,
Inc., 24 BRBS 59 (1990); Kleiner v. Todd Shipyards Corp., 16 BRBS 297
(1984).   In order to be entitled to fee under Sections 28(a), and (b), claimant's
attorney must engage in the successful prosecution of the claim. See, e.g.,
Kinnes v. General Dynamics Corp., 25 BRBS 311 (1992).

      In the instant case, although claimant discharged Mr. Coluccio prior to entering into a 
settlement agreement with employer, he performed services in good faith on behalf of claimant in furtherance
of claimant's claim for benefits under the Act.  Moreover,  it is uncontested that claimant's claim
was successfully prosecuted, as claimant received a $20,000 settlement, and the
credited statement of Mr. Weigand that he relied in part on Mr. Coluccio's work product to ultimately
settle the claim constitutes substantial evidence in support of the administrative law
judge's  finding that Mr. Coluccio contributed to the  successful prosecution of
the claim.  We therefore  hold that Mr. Coluccio is entitled to a fee under Section
28 of the Act. See Mayberry v. Walters, 862 F.2d 1040, 1043 (3d Cir. 1988). 
Accordingly, we affirm the administrative law judge's award of a fee to Mr.

      Employer next argues that the administrative law judge erred by not addressing its 117 specific
objections to time entries contained in Mr. Weigand's fee petition.   Employer divided its objections
into 5 categories: 37.3 hours for research; 38 hours for conferring with claimant;
4.3 hours to draft a settlement agreement; 19 hours devoted to the average weekly
wage issue; and 14.5 hours to prepare for the formal hearing.  In his Order
Approving Settlement, the administrative law judge summarized employer's objections
as asserting that "this was a simple case, involving only average weekly wage, and
that it was ultimately settled for an amount that was little more than nuisance
value."  See Order at 2.  Next, the administrative law judge acknowledged
claimant's responses to employer's objections, contained in a 36 page memorandum,
finding these responses persuasive regarding the 159.1 hours requested.[1]   Specifically, the administrative law judge found
that claimant's foreign nationality required greater contact with counsel, as
claimant was unfamiliar with the legal system and is not fluent in English. 
Finally, the administrative law judge took into consideration the fact that
employer did not settle the claim until the morning of the formal hearing.  He thus
awarded the time requested by Mr. Weigand.  However, the administrative law judge
agreed with employer that a more experienced practitioner would have used his time
more efficiently, and he therefore reduced the hourly rate sought by Mr. Weigand
to $90.  Accordingly, the administrative law judge reduced the fee requested by Mr.
Weigand from  $19,887.50 to $14,319.

     We affirm the $14,319 attorney's fee awarded to Mr. Weigand by the
administrative law judge.  In the instant case, the administrative law judge
considered employer's  objections to counsel's fee request as well as counsel's
response.  In considering the  fee petition, the administrative law judge accepted
counsel's responses to employer's objections to  the time requested, but he reduced
the hourly rate sought by approximately 28 percent, to $90 per hour, as he agreed
with employer that the amount of time spent indicated that counsel's expertise did
not justify a higher rate.  Pursuant to Section 702.132, 20 C.F.R. §702.132,
a fee award shall be reasonably commensurate with the necessary work done. See
Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific Maritime
Ass'n., 22 BRBS 434 (1989).  Moreover, a fee award should be for an amount that
is reasonable in relation to the results obtained. See Hensley v. Eckerhart,
461 U.S. 424 (1983).  In this case, the administrative law judge adequately
addressed employer's objections, and employer's assertions on appeal are
insufficient to meet its burden of proving that the administrative law judge abused
his discretion in determining the amount of the fee.  As the administrative law
judge committed no reversible error, his attorney's fee award is affirmed.

     Accordingly, the administrative law judge's Order Approving Settlement is


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

To Top of Document


1)Mr. Weigand responded, inter alia, that medical care was also at issue, and that information had to be obtained from claimant's prior residence in Algeria, a country which was experiencing a civil war. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document