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                                   BRB Nos. 91-1115
                                     and 91-1115A

BILLY M. GRAY                           )
                                        )
          Claimant-Respondent           )
          Cross-Petitioner              )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   06/22/1995
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )
          Cross-Respondent              )    DECISION and ORDER

     Appeals of the Decision Awarding Attorney Fees and the Denial of Motion
     for Reconsideration of Alexander Karst, Administrative Law Judge, United
     States Department of Labor, and the Compensation Order-Award of Attorney
     Fees of Edward B. Bounds, District Director, United States Department of
     Labor.

     John F. Dillon (Maples & Lomax, P.A.), Pascagoula, Mississippi, and
     Phillip J. Myles (Myles & Hanauer), San Diego, California, for claimant.

     Carol L. Powell (Mullen & Filippi), San Francisco, California, for
     employer.   
     Before:  HALL, Chief Administrative Appeals Judge, BROWN and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision Awarding Attorney Fees and the Denial of Motion
for Reconsideration (88-LHC-3631) of Administrative Law Judge Alexander Karst and
the Compensation Order-Award of Attorney Fees (No. 06-113652) of District Director
Edward B. Bounds, and claimant's second attorney, Phillip J. Myles, appeals the
denial of an attorney's fee by Administrative Law Judge Alexander Karst 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).

     Claimant filed a claim for benefits under the Act, contending that he
sustained a noise-induced, work-related binaural impairment.  Claimant initially
was represented by the firm of Maples & Lomax in Mississippi, but subsequent to his
move to California during the pendency of the proceedings was represented by Myles
& Hanauer.  Claimant underwent three audiometric evaluations, and the
administrative law judge credited the last of the three, which Dr. Stanfield
interpreted as demonstrating a 10 percent noise-induced binaural impairment.  The
administrative law judge converted the 10 percent binaural impairment to a 4
percent impairment of the whole man pursuant to the American Medical Association
Guides to the Evaluation of Permanent Impairment (3d ed. 1988)(AMA
Guides), and concluded that claimant is entitled to benefits for 8 weeks (4
percent of 200) under Section 8(c)(13), 33 U.S.C. 908(c)(13).[1]   Additionally, the administrative law judge
stated in his decision that claimant's counsel may file a petition for an
attorney's fee and costs within fifteen days of the service of the decision, with
employer allowed fifteen days thereafter to file a response. 

     Claimant's first counsel, John F. Dillon, timely submitted a fee petition to
the administrative law judge requesting an attorney's fee of $852, representing
6.75 hours of services rendered at $125 per hour and expenses of $8.25.  He also
submitted a fee petition to the district director requesting an attorney's fee of
$919.50, representing 9.13 hours of services rendered at $100 per hour, and
expenses of $6.50.  Employer's attorney sent a letter to the administrative law
judge stating employer was not objecting to the fee petition.  A similar letter was
sent to the district director, and it specifically stated that employer believed
the fee requested was appropriate.  

     In a decision dated March 6, 1991, the administrative law judge awarded Dillon
the requested fee of $852, noting that the fee petition was unopposed.  On the same
day, however, based on the urging of the client, employer's counsel filed
objections to the fee petitions with the administrative law judge and the district
director.  The administrative law judge considered the letter to be a motion for
reconsideration, but he found that employer's objections were untimely and
therefore he denied employer's motion.  The district director, who received
employer's objections prior to the issuance of his Compensation Order, stated that
he noted employer's objections but these objections were not otherwise discussed. 
The district director awarded Dillon the requested attorney's fee of $919.50.

     Claimant's second counsel, Myles, did not submit his petition for an
attorney's fee within the specified 15-day period.  He sought a fee of $831.25,
representing 6.65 hours at $125 per hour, 36 days after service of the
administrative law judge's original decision. The administrative law judge denied,
without explanation, counsel's request to file his fee petition out of time.

     On appeal, employer challenges the administrative law judge's summary
dismissal of its objections as untimely, and the district director's failure to
discuss its objections.  Dillon responds, urging affirmance of the fee awards.  In
his appeal, Myles contends that the administrative law judge erred in denying him
an attorney's fee.  Employer responds, urging affirmance.

     We affirm the fee awards of the administrative law judge and the district
director to Dillon, as employer has not demonstrated that they abused their
discretion in awarding the fees requested in light of employer's initial refusal
to object to the fee petitions.[2]   See
generally Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Corcoran v.
Preferred Stone Setting, 12 BRBS 201 (1980).  In fact, in its letter to the
district director, employer specifically stated it believed the fee requested to
be appropriate.  Moreover, the district director noted employer's later-filed
objections in his order.      

     We agree, however, with Myles that the case must be remanded to the
administrative law judge for consideration of his fee petition.  Based on the facts
of this case, the administrative law judge abused his discretion in denying all
attorney's fees to Myles for failure to submit a timely application, i.e.,
within 15 days from the February 12, 1991, date of service.  On March 20, 1991,
Myles moved for leave to submit his petition out of time, stating that although the
Decision and Order was received in his office on February 20, 1991, the fact that
he was required to file a fee petition within 15 days of the decision's service did
not come to his attention until he received the correspondence concerning Dillon's
attorney's fee.  Myles attached his fee petition to the motion.  The administrative
law judge stamped "Denied" on the motion.    

     The Act contains no time limit for an application for an attorney's fee.
Baker v. New Orleans Stevedoring Co., 1 BRBS 134 (1974); 33 U.S.C.
§928.  The regulation at 20 C.F.R. §702.132 states that the fee
application "shall be filed...within the time limits specified by ... [the]
administrative law judge...."  Nonetheless, the loss of an attorney's fee is a
harsh result and should not be imposed on counsel as a penalty except in the most
extreme cases.  In the instant case, the delay was not extreme, was apparently
unintentional and was rectified promptly. See Paynter v. Director, OWCP, 9
BLR 1-190 (1986) (Ramsey, C.J., dissenting) (Board holds that district director abused his discretion in denying a fee where
petition was filed one month after time limit and the time limit was in the
"Findings" and not in the "Order"); cf. Bankes v. Director, OWCP, 7 BLR 1-102 (1984), aff'd, 765 F.2d, 8 BLR 2-1 (6th Cir. 1985) (denial of fee
affirmed where counsel did not file a fee petition for over a year after the
deadline and had been warned of the sanction for failure to comply).   We therefore
reverse the administrative law judge's denial of an attorney's fee to Myles and
remand the case for consideration of his fee petition and any objections thereto.

     Accordingly, the administrative law judge's Decision Awarding Attorney Fees
and the Denial of Motion for Reconsideration are affirmed.  The district director's
Compensation Order is affirmed.  The administrative law judge denial of an
attorney's fee to Myles is reversed, and the case is remanded for further
proceedings consistent with this opinion.

     SO ORDERED.




                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge 
                        


                                                                        

                         JAMES F. BROWN                                    Administrative Appeals Judge            



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge 

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Footnotes.


1)This hybrid award was not appealed. At the time the administrative law judge's decision was issued, the law in the Fifth Circuit, in whose jurisdiction this case arose, was that a retiree's hearing loss benefits were to be calculated pursuant to Section 8(c)(23), 33 U.S.C. §908(c)(23). Ingalls Shipbuilding, Inc. v. Director, OWCP [Fairley], 898 F.2d 1088, 23 BRBS 61 (CRT) (5th Cir. 1990). An award under Section 8(c)(23) is payable during the continuance of the impairment and is based on the applicable percentage impairment under the AMA Guides multiplied by two-thirds of the applicable average weekly wage; it does not run for a specified number of weeks as does a scheduled award. The Fifth Circuit's decision in Fairley was rejected by the Supreme Court in Bath Iron Works Corp. v. Director, OWCP, ___ U.S. ___, 113 S.Ct. 692, 26 BRBS 151 (CRT) (1993), wherein the Court held that all occupational hearing loss is to be compensated under Section 8(c)(13). Back to Text
2)In view of this disposition, Dillon's Motion to Strike is moot. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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