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                                 BRB Nos. 92-0675
                                   and 92-0675A

LEROY FERGUSON                          )
                                        )
          Claimant-Respondent           )
          Cross-Petitioner              )
                                        )
     v.                                 )
                                        )
RYAN WALSH, INCORPORATED                )    DATE ISSUED:   01/26/1995
                                        )
     and                                )
                                        )
EMPLOYERS CASUALTY COMPANY              )
                                        )
          Employer/Carrier-             )
          Petitioners                   )
          Cross-Respondents             )    DECISION and ORDER

     Appeals of the Decision and Order Denying Modification and Supplemental
     Order Denying Attorney's Fee Award on Modification of Jeffrey Tureck,
     Administrative Law Judge, United States Department of Labor.

     Alan D. Toporek (Uricchio, Howe, Krell, Jacobson, Toporek & Theos,
     P.A.), Charleston, South Carolina, for claimant.

     Richard P. Salloum and Traci M. Castille (Franke, Rainey & Salloum),
     Gulfport, Mississippi, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order Denying Modification and claimant
cross-appeals the Supplemental Order Denying Attorney's Fee Award on Modification
(86-LHC-1690) of Administrative Law Judge Jeffrey Tureck 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 which are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 F.2d 359 (1965);
33 U.S.C. §921(b)(3).  

     Claimant, on March 16, 1984, injured his back while working for employer as
a longshoreman.  Claimant attempted to return to work in April 1984, but could only
work for one hour due to complaints of pain.  Claimant was subsequently diagnosed
as having degenerative disc disease, aggravated by the work-injury, and was
informed by Dr. Gilmore in December 1985 that the likelihood of his return to heavy
work was poor.  Employer voluntarily paid claimant temporary total disability
compensation from March 17, 1984 through July 20, 1984.  33 U.S.C. §908(b). 
Claimant thereafter filed a claim under the Act seeking permanent total disability
compensation.

     In his Decision and Order, the administrative law judge relied upon the
opinion of Dr. Gilmore, an independent examining physician, and the supporting
medical report of Dr. Brilliant, in determining that claimant was totally disabled
from either longshore or other heavy work.  After further finding that the reports
and testimony of J. Adger Brown, employer's vocational expert, failed to establish
the availability of suitable alternate employment since Mr. Brown stated that
claimant had few transferable skills and that claimant's age and lack of education
rendered him non-competitive, the administrative law judge awarded claimant
temporary total disability compensation from March 16, 1984 through December 19,
1985, the date claimant reached maximum medical improvement, and permanent total
disability compensation thereafter.  33 U.S.C. §908(a), (b).  In a Decision
and Order on Reconsideration dated August 7, 1987, the administrative law judge
found that employer had satisfied all elements necessary for relief pursuant to
Section 8(f) of the Act, 33 U.S.C. §908(f); thus, the administrative law judge
modified his decision to limit employer's liability for permanent total disability
compensation to a period of 104 weeks, commencing on December 20, 1985.

     On April 30, 1990, employer filed a motion for modification pursuant to
Section 22 of the Act, 33 U.S.C. §922.  In seeking modification, employer
contended that there had been a change in claimant's economic condition.  At a
formal hearing held on August 15, 1991, employer submitted into evidence vocational
reports by Patricia Bell which set forth several available light duty jobs which
she opined claimant could perform, 1990 and 1991 medical reports by Dr. Gilmore
which stated that claimant would be at risk if required to do repetitive lifting,
stooping or bending, but should be capable of work which did not require those
activities, and Dr. Gilmore's certification of certain employment descriptions set
forth by Ms. Bell.  Lastly, employer questioned claimant regarding his post-injury
purchase of a limousine and his subsequent efforts to hire out that vehicle.[1]   In his Decision and Order Denying Modification,
the administrative law judge, after determining that neither claimant's physical
nor economic conditions had changed, denied employer's petition for modification.

     Claimant's counsel thereafter submitted a fee petition for work performed
before the administrative law judge regarding the modification proceedings. 
Employer filed objections to the fee petition.  In a Supplemental Order Denying
Attorney's Fee on Modification, the administrative law judge denied claimant's
counsel a fee payable by employer pursuant to Section 28(b), 33 U.S.C.
§928(b), since claimant's benefits did not increase as a result of the denial
of employer's petition for modification.

     On appeal, employer challenges the administrative law judge's denial of its
petition for modification, contending that it had submitted into evidence
sufficient documentation to establish  a change in claimant's post-injury wage-earning capacity.  Claimant responds, urging affirmance of the administrative law
judge's denial of modification.  

     In his cross-appeal, claimant challenges the administrative law judge's denial
of his request for an attorney's fee payable by employer, contending that the
successful defense of employer's petition for modification constituted a successful
prosecution under Sections 28(a) and (b) of the Act, 33 U.S.C. §928(a), (b). 
Employer responds, urging affirmance.

     We first address employer's contention that the administrative law judge erred
in denying its request for modification.  Section 22 of the Act, 33 U.S.C.
§922, provides the only means for changing otherwise final decisions. 
Modification of a prior decision is permitted, at any time prior to one year after
the last payment of compensation or the rejection of the claim, based on a mistake
in fact in the initial decision or where claimant's physical or economic condition
has improved or deteriorated. See Fleetwood v. Newport News Shipbuilding & Dry
Dock Co., 776 F.2d 1225, 18 BRBS 12 (CRT)(4th Cir. 1985); Finch v. Newport
News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989).  A request for
modification pursuant to Section 22, therefore, may be based upon a change in a
claimant's wage-earning capacity. See Fleetwood, 776 F.2d at 1225,
18 BRBS at 12 (CRT).  It is well-established that the party requesting modification
has the burden of showing the change in condition. See, e.g., Winston v. Ingalls
Shipbuilding, Inc., 16 BRBS 168 (1984).  Moreover, the Board has held that the
standard for determining disability is the same during Section 22 modification
proceedings as it is during initial adjudicatory proceedings under the Act.
Vasquez v. Continental Maritime of San Francisco, Inc., 23 BRBS 428 (1990). 


     Where, as in the instant case, it in uncontroverted that claimant is incapable
of returning to his former employment duties, claimant has established a prima
facie case of total disability, thus shifting the burden to employer to
demonstrate the availability of suitable alternate employment. See Lentz v. The
Cottman Co., 852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988); Mills v. Marine
Repair Serv., 21 BRBS 115 (1988), modified on other grounds on recon.,
22 BRBS 335 (1989).  In order to meet this burden, employer must show the
availability of a range of job opportunities within the geographical area where
claimant resides which claimant, by virtue of his age, education, work experience,
and physical restrictions, is realistically able to secure and perform. See
Lentz, 852 F.2d at 129, 21 BRBS at 109 (CRT); Bryant v. Carolina Shipping
Co., Inc., 25 BRBS 294 (1992).

     In the instant case, employer, in support of its petition for modification,
submitted to the administrative law judge reports authored by Dr. Gilmore, and the
testimony and reports of Ms. Bell.[2]   Ms. Bell,
although conceding that claimant's age, lack of education, and chronic back pain
were barriers to his re-employment, set forth light duty positions which she
believed were available to claimant.  In denying employer's petition for
modification, the administrative law judge, after acknowledging Ms. Bell's
testimony, implicitly rejected that testimony, finding that the medical evidence
submitted by employer failed to establish a change in claimant's physical
condition,[3]  that there was no evidence of a
change in claimant's educational level, that claimant is five years older, that
there was no evidence in the record to support a finding that claimant's ability
to secure a job had increased, and that no change in the job market had been
established. See Decision and Order Denying Modification at 2, 4.  The
administrative law judge's determination supports the conclusion that employer
failed to demonstrate a reasonable likelihood, given claimant's age, education, and
vocational background, that he could secure and perform any of the positions
identified by Ms. Bell. See Lentz, 852 F.2d at 131, 21 BRBS at 112 (CRT);
see also Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21
BRBS 10 (CRT)(4th Cir. 1988).  The administrative law judge's findings in this
regard are rational and supported by substantial evidence; we therefore affirm the
administrative law judge's implicit finding that employer, on modification, failed
to establish the availability of suitable alternate employment.  

     Employer additionally contends that a change in claimant's post-injury wage-earning capacity is demonstrated by the income claimant received as a result of his
purchase of a limousine.   We disagree.  The Board has held that while income from
a business owned by an employee should not be used to reduce liability
compensation, if the employee performs such extensive services for the business
that the income represents salary rather than profits, the income should be
considered in determining wage-earning capacity. See Seidel v. General Dynamics
Corp., 22 BRBS 403 (1989).  In the instant case, claimant's testimony indicated
that he purchased a limousine for approximately $10,000, that he drove the
limousine for business purposes only five times, that he claimed $1,000 in income
from this activity in 1990 while paying $1,362 in maintenance and $538 in
insurance, and that this venture operated at a loss. See August 15, 1991
transcript at 51-54, 111.  Following claimant's testimony at the formal hearing,
the administrative law judge stated that claimant's limousine venture did not
constitute suitable alternate employment and, furthermore, that this work did not
demonstrate that claimant has a post-injury wage-earning capacity. See id.
at 165.  We therefore reject employer's contention that income claimant received
from his limousine venture increased his post-injury wage-earning capacity.   Based
on the foregoing, we hold that the administrative law judge committed no reversible
error in determining that employer failed to satisfy its burden of proof on
modification.  We therefore affirm the administrative law judge's denial of
employer's petition for modification. See generally O'Keeffe, 380 U.S. at
359.

     In his cross-appeal, claimant challenges the administrative law judge's denial
of his request for an attorney's fee payable by employer.  Specifically, claimant
contends that the successful defense of employer's motion for modification
constituted a successful prosecution of his claim under Section 28(a) and (b) of
the Act, 33 U.S.C. §928(a), (b).  Claimant therefore argues that employer
should be liable for his counsel's fee. 

     The administrative law judge, in his Supplemental Order Denying Attorney's Fee
Award on Modification, stated that while it would be consistent with the purposes
of Section 28 to have employer pay claimant's counsel's fee, Section 28 is
inapplicable in the instant case since claimant is receiving the same amount of
benefits following the denial of modification as he was prior to employer's filing
of its petition.  Specifically, the administrative law judge noted that although
the services of claimant's attorney helped prevent claimant from losing anything,
"he did not increase his compensation or obtain anything additional as a result."
See Supplemental Order at 2.  Thus, the administrative law judge determined
that, under Section 28, a case in which the status quo is maintained is not one in
which payment of claimant's attorney's fee can be imposed on employer; accordingly,
the administrative law judge denied claimant's counsel a fee payable by employer.

     Under Section 28(a) of the Act, if an employer declines to pay compensation
within 30 days after receiving written notice of a claim from the district
director, and claimant's attorney's services result in a successful prosecution of
the claim, claimant is entitled to an attorney's fee payable by employer.  33
U.S.C. §928(a).  Pursuant to Section 28(b) of the Act, 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
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).

     Initially, we need not address claimant's arguments with respect to employer's
liability under Section 28(a), inasmuch as it is uncontroverted that first
employer, then the Special Fund, were paying claimant benefits prior to the filing
of employer's petition for modification; thus, the case at bar is governed by
Section 28(b).  Specifically, when employer filed its petition for modification in
April 1990, it is accurate to state that a controversy developed over additional
compensation due claimant, since employer was effectively controverting claimant's
entitlement to future, ongoing permanent total disability benefits.  Claimant,
thereafter, was forced to utilize the services of an attorney in order to ensure
that his compensation was not reduced; although counsel's services resulted in
claimant's retaining his permanent total disability award, those services
effectively resulted in claimant retaining "greater" compensation than that sought
by employer in its petition for modification.  

     The situation presented in the instant case is analogous to the situation
which occurs when an employee, having been awarded compensation benefits by an
administrative law judge, is required to utilize the services of counsel in order
to defend against an appeal of the award filed by an employer with the Board.  It
is well-established that where claimant's counsel is successful in defending such
an appeal, employer is liable for claimant's attorney's fee for work performed
before the Board. See Canty v. S.E.L. Maduro, 26 BRBS 147 (1992); Mikell
v. Savannah Shipyard Co., 24 BRBS 100 (1990), aff'd on recon., 26 BRBS
32 (1992); 33 U.S.C. §928; 20 C.F.R. §802.203.  Similarly, in Bakke
v. Duncanson-Harrelson Co., 13 BRBS 276 (1980), the Board held that where
employer was still disputing the extent of the claimant's disability in an
additional hearing, and the legal services provided at this additional hearing were
necessary to protect the claimant's interest, employer was liable for claimant's
attorney's fee for work performed at the second hearing. See also Landrum v. Air
America, Inc., 1 BRBS 268 (1975).  We hold therefore that since claimant's
counsel's services were necessary to protect claimant's entitlement to ongoing
payments of permanent total disability compensation, and those services resulted
in the successful defense of employer's petition for modification which sought to
reduce those benefits, thereby guaranteeing claimant's entitlement to ongoing
payments of compensation greater than those asserted by employer, employer is
liable for claimant's attorney's fee under Section 28(b) of the Act.  The
administrative law judge's denial of an attorney's fee payable by employer is thus
reversed, and the case remanded for consideration of claimant's counsel's fee
request pursuant to Section 28(b) and Section 702.132 of the regulations, 20 C.F.R.
§702.132.

     Accordingly, the Decision and Order Denying Modification of the administrative
law judge is affirmed.  The Supplemental Order Denying Attorney's Fee Award on
Modification of the administrative law judge is reversed, and the case is remanded
for the administrative law judge to consider claimant's counsel's fee request
consistent with this opinion.

     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)At the hearing, employer indicated that it was seeking a credit for the overpayment of benefits commencing January 1990, at which time it allegedly established the availability of suitable alternate employment. See 1991 Transcript at 8. Since, pursuant to the administrative law judge's Decision and Order on Reconsideration dated August 7, 1987, the Special Fund commenced paying claimant's benefits in December 1987, employer's relief in seeking modification, if successful, would apparently be a reduction in its assessment to the Special Fund. See 33 U.S.C. §944. Back to Text
2)Although the administrative law judge, in denying employer's petition, stated that "it would be unjust to reopen the record," see Decision and Order Denying Modification at 4, we note that a formal hearing on employer's petition for modification was held on August 15, 1991, at which time four witnesses testified and evidence was submitted into the record. See August 15, 1991 transcript. Employer thus had been allowed to produce evidence in support of its modification petition. See Blake v. Ceres Inc., 19 BRBS 219 (1987). Back to Text
3)Employer conceded at the hearing that claimant's physical condition had not changed. See August 15, 1991 transcript at 158. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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