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                                   BRB No. 91-1436

SIDNEY MEYERS                           )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )
RAYMOND FABRICATORS,                    )
INCORPORATED                            )    DATE ISSUED:   01/31/1995
                                        )
       and                              )
                                        )
CONTINENTAL INSURANCE                   )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Order Dismissing Petition for Modification and the
     Supplemental Order Awarding Attorney Fees of Quentin P. McColgin,
     Administrative Law Judge, United States Department of Labor.

     V. William Farrington, Jr. (Cornelius, Sartin & Murphy), New Orleans,
     Louisiana, for employer/carrier.

     Before:  SMITH, BROWN and DOLDER, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Order Dismissing Petition for Modification and the
Supplemental Order Awarding Attorney Fees (91-LHC-277) of Administrative Law Judge
Quentin P. McColgin 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 administrative law judge's
findings of fact and conclusions of law if they are supported by substantial
evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     Claimant injured his right knee on January 3, 1983, during the course of his
employment with employer.  He filed a claim for compensation, and, finding a
hearing unnecessary as there were no undisputed issues, the district director
issued a compensation order awarding benefits on September 13, 1989.  Comp. Order. 
The district director awarded claimant temporary total disability benefits from
August 1, 1983, through April 30, 1987, and permanent total disability benefits beginning May 1, 1987.  Pursuant to
the decision of the United States Court of Appeals for the Fifth Circuit in
Holliday v. Todd Shipyards Corp., 654 F.2d 415, 13 BRBS 741 (5th Cir. 1981),
the district director calculated the Section 10(f), 33 U.S.C. §910(f), annual
cost-of-living adjustments to claimant's compensation.[1]   Because claimant had a pre-existing permanent partial disability, the
district director also awarded employer Section 8(f), 33 U.S.C. §908(f),
relief from continuing liability for compensation, beginning April 28, 1989. Comp.
Order at 1-2.  Additionally, the district director noted employer's agreement to
pay Section 7, 33 U.S.C. §907, medical benefits. Id. at 3.  No party
appealed this decision.

     In 1991, employer filed a motion for modification pursuant to Section 22 of
the Act, 33 U.S.C. §922, for the purpose of recalculating claimant's benefits
in light of the Fifth Circuit's decision in Phillips v. Marine Concrete
Structures, 895 F.2d 1033, 23 BRBS 36 (CRT) (5th Cir. 1990) (en banc).[2]   The Director, Office of Workers' Compensation
Programs (the Director), opposed the motion and sought dismissal of the case. 
Claimant agreed with the Director.  The administrative law judge, in agreement with
the Director, issued an Order dismissing the petition for modification. Order at
1-2.  The administrative law judge found that the district director's Compensation
Order was not appealed and was, therefore, final, and he found that Section 22
modification is not available to employer for the purpose of recalculating benefits
based on a subsequent change in law. Id. at 2.  Thereafter, claimant's
counsel filed a petition for an attorney's fee.  The administrative law judge
awarded counsel the requested fee of $544.50 to be paid by employer.  Supp.
Decision and Order.  Employer appeals the administrative law judge's decisions, and
no party has responded.

     Employer contends that claimant's benefits should be adjusted pursuant to the
Fifth Circuit's decision in Phillips.  Specifically, on appeal, employer
argues that Phillips is to be applied retroactively, and it asks the Board
to modify the district director's award and order the Special Fund to pay benefits
at the reduced rate, or, alternatively, to reverse the administrative law judge's
dismissal of the motion and remand the case for a modification hearing.  In support
of its arguments, employer quotes the Fifth Circuit's statement that:

     as to Phillips and other claimants in this circuit, future payments may
     be adjusted to the amount that would have been calculated absent the
     Holliday formula, although no refund of past excess payments made
     pursuant to Holliday shall be required.

Phillips, 895 F.2d at 1036, 23 BRBS at 39 (CRT).

     The Board recently addressed these Section 10(f) and Section 22 issues in its
decision in Ryan v. Lane & Co., 28 BRBS 132 (1994).  In that case, the Board
rejected the employer's argument that Phillips should be applied
retroactively.  It noted that the administrative law judge reasonably inferred that
the reference to "other claimants in this circuit" refers to those claimants whose
cases are properly pending, and not those whose claims are, as in the instant case,
the subject of a final compensation order.  The Board also noted that retroactive
application of Phillips to such final decisions would be contrary to the
decision of the Supreme Court of the United States in Pittston Coal Group v.
Sebben, 488 U.S. 105, 12 BLR 2-89 (1988).  In Sebben, the Court held
that it would not order the re-adjudication of black lung claims decided under
erroneous standards where the cases had already become final by reason of the
claimants' failure to pursue administrative remedies or appeals to the courts
within the prescribed time. See Ryan, 28 BRBS at 135.  As the district
director's compensation order in this case is final, we reject employer's argument
that the Fifth Circuit's decision in Phillips may be applied to it, for the
reasons stated in Ryan.  

     Similarly, we reject employer's contention that the administrative law judge
erred in dismissing its motion for modification.  In order to modify a final
decision, the party seeking modification must demonstrate a change of condition or
a mistake in a determination of fact. 33 U.S.C. §922; Swain v. Todd
Shipyards Corp., 17 BRBS 124 (1985).  Employer, however, has not raised any
mistake in fact or change in condition with regard to the initial award of
benefits, including the Section 10(f) adjustments.  Instead, it argues that the
concept of "mistake in a determination of fact" includes mixed questions of law and
fact, see Presley v. Tinsley Maintenance Service, 9 BRBS 588 (1979), and
that the issue it raises before the Board presents such a question.  Contrary to
employer's argument, it has not introduced a mixed question of fact and law;
rather, it seeks to re-open this case because of the Fifth Circuit's subsequent
legal interpretation of Section 10(f) of the Act. Ryan, 28 BRBS at 135. 
Section 22 does not apply to an issue involving legal interpretation which is
decided against a party, as legal issues must be timely appealed under Section 21
of the Act, 33 U.S.C. §921. O'Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254 (1971); Ryan, 28 BRBS at 135; Maples v. Marine
Disposal Co., 16 BRBS 241 (1984).  As employer has not justified its request
to re-open this case, we affirm the administrative law judge's determination that
no valid basis exists for granting modification in this case. See Ryan, 28
BRBS at 135; see also Sebben, 488 U.S. at 105, 12 BLR at 2-89; General
Dynamics Corp. v. Director, OWCP, 673 F.2d 23, 14 BRBS 636 (1st Cir. 1982).



     Finally, employer maintains it is not liable for claimant's attorney's fee. 
It does not, however, challenge the amount of the fee award.  Claimant participated
in the proceedings before the administrative law judge, agreeing with the
Director's position.  The administrative law judge determined that counsel's
participation resulted in a "successful defense" of the award and "is tantamount
to the `successful prosecution of the claim.'"  Supp. Decision and Order at 1;
see also 33 U.S.C. §928.  Consequently, he concluded that employer is
liable for counsel's fee, and that the requested fee of $544.50 is reasonable.
Id. at 2.  As claimant's counsel mounted a successful defense against
employer's attempt to re-open the case and recalculate claimant's award, we affirm
the administrative law judge's fee award of $544.50, assessed against employer.
See generally Hensley v. Washington Metropolitan Area Transit Authority, 690
F.2d 1050, 15 BRBS 43 (CRT) (D.C. Cir. 1982);  Canty v. S.E.L. Maduro, 26
BRBS 147 (1992).

     Accordingly, the administrative law judge's decisions are affirmed.

     SO ORDERED.



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)In Holliday, the Fifth Circuit held that claimants, upon becoming permanently totally disabled, are entitled to an increase in payments reflecting cost-of-living adjustments that accrued during previous periods of temporary disability. Holliday, 654 F.2d at 415, 13 BRBS at 741. Back to Text
2)In Phillips, the Fifth Circuit overruled its decision in Holliday and held that claimants are not entitled to Section 10(f) adjustments during previous periods of temporary total disability. Phillips, 895 F.2d at 1035, 23 BRBS at 38 (CRT); see also 33 U.S.C. §910(f) (1988). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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