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                                 BRB No. 92-0107
    
DAVID M. ANDERSON                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   06/29/1995
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER
                             
     Appeal of the Supplemental Decision and Order Awarding Attorney Fees of
     A.A. Simpson, Jr., Administrative Law Judge, United States Department of
     Labor.

     Rebecca J. Ainsworth (Maples & Lomax), Pascagoula, Mississippi, for
     claimant.

     Paul M. Franke, Jr., and Traci M. Castille (Franke, Rainey & Salloum),
     Gulfport, Mississippi, for self-insured employer.

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

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Awarding Attorney Fees
(88-LHC-3566) of Administrative Law Judge A.A. Simpson, 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).  The amount of 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. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS
272 (1980).

     Claimant, who was exposed to loud noise while working in employer's shipyard,
filed a claim for hearing loss benefits under the Act in November 1986, alleging
that he suffered a 46.5 percent binaural impairment.  Employer controverted the
claim.  The case was subsequently referred to the Office of Administrative Law
Judges for a formal hearing which was held on November 16, 1989.  Claimant and
employer stipulated that the unresolved issues were causation, the nature and
extent of claimant's disability, responsible employer, and employer's liability for
a Section 14(e) penalty, medical benefits, and an attorney's fee.       In his Decision and Order, the administrative law judge awarded claimant
benefits for a 22.5 percent binaural impairment payable by employer, pursuant to
Section 8(c)(13) of the Act, 33 U.S.C. §908(c)(13)(1988).[1]   Employer also was held liable for a Section
14(e) penalty, medical benefits and interest.  Lastly, the administrative law judge
determined that employer is liable for an attorney's fee.

     Subsequently, claimant's counsel filed a petition for an attorney's fee of
$3,914.50, representing 31 hours of services at a rate of $125 per hour, plus
$39.50 in expenses.  Employer filed objections to the fee petition.  In a
Supplemental Decision and Order, the administrative law judge considered employer's
specific objections and reduced the hourly rate for claimant's senior counsel to
$100 and the hourly rate sought by claimant's associate counsel for services
performed in 1989 and 1990 to $80 and $85 respectively.  Next, the administrative
law judge disallowed 15.75 of the 31 hours claimed.  Accordingly, he awarded
claimant's counsel a fee of $1,285.60, representing 2.875 hours of services
rendered at $100 per hour, 1.625 hours of services rendered at $85 per hour, and,
10.75 hours of services rendered at $80 per hour, plus the $39.50 in requested
expenses.   

     On appeal, employer challenges the fee awarded by the administrative law
judge, incorporating the objections it made below into its brief on appeal. 
Claimant responds, urging affirmance.

     Employer initially contends that the lack of complexity of the instant case
mandates a reduction in the amount of the attorney's fee awarded by the
administrative law judge.[2]   We disagree.  An
attorney's fee must be awarded in accordance with Section 28 of the Act, 33 U.S.C.
§928, and the applicable regulation, Section 702.132, 20 C.F.R. §702.132,
which provides that the award of any attorney's fee shall be reasonably
commensurate with the necessary work done, the complexity of the legal issues
involved and the amount of benefits awarded. See generally Parrott v. Seattle
Joint Port Labor Relations Committee of the Pacific Maritime Ass'n, 22 BRBS 434
(1989).  Thus, the complexity of the legal issues is but one factor to be
considered when awarding an attorney's fee. See 20 C.F.R. §702.132;
Thompson v. Lockheed Shipbuilding & Construction Co,, 21 BRBS 94 (1988). 
In the instant case, the administrative law judge considered this specific
objection in reducing counsel's requested hourly rate.  We therefore reject
employer's contention that the awarded fee must be further reduced on this basis.

     Employer next asserts that the hourly rates awarded by the administrative law
judge to claimant's counsel are excessive.  In support of its contention, employer
suggests that a rate of $75 to $80 per hour would be more reasonable.  We disagree. 
The administrative law judge determined that the hourly rate of $125 sought by
claimant's counsel was excessive, and awarded claimant's senior counsel an hourly
rate of $100, and claimant's associate counsel $80 per hour for services performed
in 1989 and $85 per hour for services performed in 1990.  As employer's mere
assertion that the awarded rates do not conform to the reasonable and customary
charge in the area where this claim arose is insufficient to meet its burden of
proving that the rates are excessive, we affirm the rates awarded by the
administrative law judge to claimant's counsel. See Maddon v. Western Asbestos
Co., 23 BRBS 55 (1990).

     Employer also objects to counsel's minimum quarter-hour billing method.
Although counsel submitted a fee petition using this method of billing, the
administrative law judge's decision to reduce entries for time spent reviewing
routine correspondence on nine different dates from one-quarter to one-eighth of
an hour is in compliance with the unpublished fee order of the United States Court
of Appeals for the Fifth Circuit in Ingalls Shipbuilding, Inc. v. Director, OWCP
[Fairley], No. 89-4459 (5th Cir. July 25, 1990).[3]   See also Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs],
No. 94-40066 (5th Cir. Jan. 12, 1995) (unpublished).  We therefore decline to
further reduce these entries on this basis. See Ross v. Ingalls Shipbuilding,
Inc., 29 BRBS 42 (1995).

     Finally, employer challenges the number of hours requested by counsel and
approved by the administrative law judge.  In this regard, employer contends that
the time spent in certain discovery-related activity, in trial preparation, and in
reviewing and preparing various legal documents was either unnecessary or
excessive, or clerical in nature.  After evaluating claimant's fee request in light
of the regulatory criteria of 20 C.F.R. §702.132 and employer's specific
objections, the administrative law judge disallowed 15.75 hours sought by counsel,
a reduction of approximately 50 percent, and found the remaining itemized services
to be reasonable and necessary.  We decline to further reduce or disallow the hours
approved by administrative law judge, as employer's assertions are insufficient to
meet its burden of proving that the administrative law judge abused his discretion
in this regard. See Maddon, 23 BRBS at 55; Cabral v. General Dynamics
Corp., 13 BRBS 97 (1981).  We note, however, that the amount of requested time
and the hourly rates approved by the administrative law judge result in a total fee
of $1,285.60 as the administrative law judge stated in the body of his decision;
the administrative law judge's order, however, directs employer to pay a fee of
$1,445.50.  We therefore modify the administrative law judge's attorney's fee order
to reflect employer's liability for a fee of $1,285.60, representing 2.875 hours
of approved services rendered at an hourly rate of $100, 1.625 hours of approved
services rendered at an hourly rate of $85, and 10.75 hours of approved services
rendered at an hourly rate of $80.

     Accordingly, the administrative law judge's Supplemental Decision and Order
Awarding Attorney Fees is modified to reflect employer's liability for an
attorney's fee of $1,285.60; in all other respects the administrative law judge's
fee award is affirmed. 

     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)The administrative law judge credited the most recent audiogram of record to reach his conclusion that claimant has a 22.5 percent binaural impairment. Decision and Order at 2; CX 2; EX 4. Back to Text
2)Employer additionally contends that counsel's fee should be reduced since the case was "a routine and uncontested hearing loss claim." We note that, contrary to this assertion, our review of the record reveals that before the administrative law judge employer controverted causation, the extent of claimant's disability, medical benefits, and its liability for a Section 14(e) penalty. Back to Text
3)The administrative law judge allowed one-quarter hour for writing letters, and the Fifth Circuit has stated that this is a reasonable amount of time for a one-page letter. See Fairley, slip op. at 2. He also properly allowed the .5 hours requested on May 12, 1989 for receipt and review of employer's responses to claimant's requests for admissions as this was a multi-page document which would require comparison with claimant's multi-page request to have any meaning. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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