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                                   BRB Nos. 92-0927
                                     and 92-0927A

GARY JENKINS                            )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )    DATE ISSUED:   04/27/1995
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Petitioner              )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Petitioner                    )    DECISION and ORDER

     Appeals of the Decision and Order Awarding Benefits, Decision on Motion
     for Reconsideration, and Supplemental Decision and Order Granting
     Attorney Fees of C. Richard Avery, Administrative Law Judge, United
     States Department of Labor.

     John F. Dillon (Maples & Lomax, P.A.), Pascagoula, Mississippi, for
     claimant.

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

     Carol B. Feinberg (Thomas S. Williamson, Solicitor of Labor; Carol
     DeDeo, Associate Solicitor; Janet Dunlop, Counsel for Longshore),
     Washington, D.C., for the Director, Office of Workers' Compensation
     Programs, United States Department of Labor.

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

     PER CURIAM:

     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order Awarding Benefits and the Decision on Motion for
Reconsideration, and employer cross-appeals the Decision and Order Awarding
Benefits, Decision on Motion for Reconsideration, and Supplemental Decision and
Order Awarding Attorney's Fees (90-LHC-2123) of Administrative Law Judge C. Richard
Avery 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 if they are rational, supported by substantial evidence,
and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  

     Claimant filed a claim for benefits under the Act for a work-related hearing
loss and notified employer of his injury on January 26, 1987.  Previously, on
December 8, 1986, claimant underwent an audiometric evaluation conducted by Dr.
Wold which revealed a 22.1 percent binaural impairment.  On August 2, 1989,
claimant underwent a second audiometric evaluation conducted by Drs. McDill and
Muller which revealed an 8.8 percent binaural impairment.  Employer, on February
17, 1987, filed an LS-202 Form and, thereafter, filed a Notice of Controversion
(Form LS-207) on January 17, 1989.  

     At the formal hearing, the parties stipulated that claimant was a retiree,
that claimant suffered a work-related hearing loss, and that the applicable average
weekly wage for compensation purposes was $302.66.  In his Decision and Order, the
administrative law judge, relying upon the results of Drs. McDill and Muller's
examination, found that claimant has an 8.8 percent binaural impairment, and that
claimant's hearing loss should be compensated pursuant to Section 8(c)(23) of the
Act, 33 U.S.C. §908(c)(23).  Thus, after converting claimant's 8.8 percent
binaural impairment to a 3 percent impairment of the whole person and utilizing the
compensation rate stipulated by the parties, the administrative law judge concluded
that claimant was entitled to a permanent partial disability award of $6.53 per
week.  Next, the administrative law judge found the LS-202 Form filed by employer
did not constitute a controversion, and thus determined that employer was liable
for an assessment under Section 14(e) of the Act, 33 U.S.C. §914(e). Lastly,
the administrative law judge ordered employer to pay claimant's medical expenses
and interest on all compensation due claimant.  In a subsequent Decision on Motion
for Reconsideration, the administrative law judge modified his decision to reflect
claimant's entitlement to permanent partial disability compensation at a rate of
$6.05 per week.

     Thereafter, claimant's counsel submitted a fee petition to the administrative
law judge, requesting an attorney's fee of $3,512.25, representing 27.5 hours of
services rendered at an hourly rate of $125, and $74.75 in expenses.  Employer
filed objections to the fee petition.  In a Supplemental Decision and Order
Awarding Attorney Fees, the administrative law judge considered employer's specific
objections to the fee request, reduced the number of hours sought to 26, reduced
the hourly rate sought to $110, disallowed $29.75 in expenses, and awarded
claimant's counsel an attorney's fee of $2,860, and $45 in expenses.

     On appeal, the Director contends that the administrative law judge erred in
failing to provide a date on which claimant's benefits should commence.  The
Director further argues that the administrative law judge's Decision and Order sets
forth no information as to whether the stipulated compensation rate is the correct
rate in accordance with Ingalls Shipbuilding, Inc. v. Director, OWCP, 898
F.2d 1088, 23 BRBS 61 (CRT)(5th Cir. 1990).  In its cross-appeal, employer contends
that the administrative law judge erred in holding it liable for a Section 14(e)
assessment.  Employer further contests the amount of the attorney's fee awarded by
the administrative law judge to claimant's counsel.  Claimant has responded to
employer's cross-appeal, urging affirmance of the administrative law judge's award
of a Section 14(e) assessment and attorney's fee.

     The Director initially contends that the instant case must be remanded for a
determination as to the date claimant's benefits should commence.  Since the
parties filed their briefs on appeal in the instant case, the United States Supreme
Court issued its decision in Bath Iron Works Corp. v. Director, OWCP,    
U.S.    , 113 S.Ct. 692, 26 BRBS 151 (CRT)(1993), which is dispositive of the issue
raised by the Director.  In Bath Iron Works, the Court found that a worker
who sustains a work-related hearing loss suffers disability simultaneously with his
or her exposure to excessive noise.  As a loss of hearing occurs simultaneously
with the exposure to excessive noise, the injury is complete when the exposure
ceases, and the date of last exposure is the relevant time of injury for
calculating a retiree's benefits for occupational hearing loss. See Bath Iron
Works, 113 S.Ct. at 699-700, 26 BRBS at 154 (CRT).  Based on this analysis, the
Court stated that hearing loss cannot be considered "an occupational disease which
does not immediately result in disability," see 33 U.S.C. §910(i), and
held that claims for hearing loss under the Act, whether filed by current employees
or retirees, are claims for a scheduled injury and must be compensated pursuant to
Section 8(c)(13), 33 U.S.C. §908(c)(13), rather than Section 8(c)(23), 33
U.S.C. §908(c)(23).  

     Pursuant to the Supreme Court's decision in Bath Iron Works that the
relevant time of injury for calculating a retiree's hearing loss benefits is the
date of his last exposure to injurious noise levels, we hold that claimant's
benefits must commence on the date of his last exposure to injurious noise levels
while working for employer. Moore v. Ingalls Shipbuilding, Inc., 27 BRBS 76
(1993).  In the instant case, the administrative law judge made no findings as to
the date of claimant's last exposure to injurious noise levels.  Accordingly, we
vacate the administrative law judge's award of benefits and remand the case for the
administrative law judge to determine, in accordance with the holding of Bath
Iron Works, the onset date for the commencement of claimant's benefits.  

     In Moore, the Board held that as the Supreme Court's decision in
Bath Iron Works is dispositive of the Director's appeal of the issue of the
onset date for claimant's award, it would be incongruous to commence a Section
8(c)(23) award on the date of claimant's last exposure with employer and ignore the
Supreme Court's holding that claims for hearing loss benefits under the Act,
whether filed by current employees or retirees, must be compensated pursuant to
Section 8(c)(13) of the Act.  Thus, although no party on appeal has explicitly
challenged the administrative law judge's award of permanent partial disability
benefits pursuant to Section 8(c)(23), in accordance with the holding of Bath
Iron Works, we vacate the administrative law judge's award of hearing loss
benefits pursuant to Section 8(c)(23), and we modify that award to reflect that
claimant is entitled to permanent partial disability compensation pursuant to
Section 8(c)(13) of the Act for an 8.8 percent binaural impairment. 

     The Director additionally contends that the administrative law judge's
Decision and Order is unclear as to whether the stipulated average weekly wage is
in accordance with Ingalls Shipbuilding.  In his Decision and Order, the
administrative law judge accepted the parties' stipulation that the applicable
average weekly wage for calculating claimant's compensation is $302.66.  As neither
claimant nor employer has appealed the administrative law judge's decision to
accept their stipulation, we hold that the administrative law judge committed no
reversible error in accepting that stipulation and using the average weekly wage
of $302.66 to calculate claimant's compensation rate. See Bath Iron Works,
113 S.Ct. at 698 n.12, 26 BRBS at 153 n.12 (CRT).  On remand, in view of the change
in law, the administrative law judge may exercise his discretion to permit the
parties to reopen this issue.

     In its appeal, employer contends that the administrative law judge erred in
holding it liable for a Section 14(e) assessment.  Specifically, employer contends
that its Form LS-202 filed on February 17, 1987, constituted a "controversion"
sufficient to relieve it of liability for a Section 14(e) assessment.  We disagree. 
Employer's argument is identical to that addressed by the Board in Snowden v.
Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991)(Brown, J., dissenting), aff'd
on recon. en banc, 25 BRBS 346 (1992)(Brown, J., dissenting).  In Snowden,
the Board held that an employer's Form LS-202, which was filled out in a manner
identical to the Form LS-202 filed by employer in the instant case, was not the
functional equivalent of a notice of controversion since it was inadequate to meet
the statutory requirements of Section 14(d) of the Act.  For the reasons set forth
in Snowden, we hold that the Form LS-202 filed by employer in this case does
not constitute a notice of controversion for purposes of Section 14(e).  We,
therefore, affirm the administrative law judge's finding that employer is liable
for a Section 14(e) assessment.

     Lastly, we address employer's appeal of the administrative law judge's award
of an attorney's fee.  An award of an attorney's fee 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).


     Employer contends that the lack of complexity of the instant case mandates a
reduction in the amount of the fee awarded to claimant's counsel.[1]   An attorney's fee must be awarded in accordance
with Section 28 of the Act, 33 U.S.C. §928, and the applicable regulation, 20
C.F.R. §702.132, which provides that the award of any attorney's fee shall be
reasonably commensurate with the necessary work performed and shall take into
account the quality of the representation, the complexity of the issues, 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).  While
the complexity of the issues should be considered by the administrative law judge,
it is only one of the relevant factors. See generally Thompson v. Lockheed
Shipbuilding & Construction Co., 21 BRBS 94 (1988).  In this case, the
administrative law judge considered this specific objection in reducing counsel's
requested hourly rate from $125 to $110; we therefore reject employer's contention
that the awarded fee must be reduced on this basis.[2]   Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179, 181
(1993), aff'd mem., No. 93-4367 (5th Cir. Dec. 9, 1993); LeBatard v.
Ingalls Shipbuilding Div., Litton Systems, Inc., 10 BRBS 317 (1979).

     Employer also asserts that the awarded hourly rate is excessive.  The
administrative law judge determined that the hourly rate of $125 sought by
claimant's counsel was excessive, and thereafter awarded counsel an hourly rate of
$110, finding this rate to be fair and reasonable in the area where this claim
arose.  As employer's mere assertion that the awarded rate does not conform to the
reasonable and customary charges in the area where this claim arose is insufficient
to meet its burden of proving that the rate is excessive, we affirm the rate
awarded by the administrative law judge to counsel. See Welch v. Penzoil
Co., 23 BRBS 395 (1990); Maddon v. Western Asbestos Co., 23 BRBS 55
(1989).

     Employer additionally challenges the number of specific hours requested by
counsel and approved by the administrative law judge.  In considering counsel's fee
petition, the administrative law judge set forth employer's specific objections and
thereafter reduced the number of hours requested.  Employer's assertions on appeal
are insufficient to meet its burden of proving that the administrative law judge
abused his discretion in this regard and we decline to reduce or disallow the hours
approved by the administrative law judge.[3]  
See Maddon, 23 BRBS at 62; Cabral v. General Dynamics Corp., 13 BRBS
97 (1981).

     Employer also objects to counsel's use of the quarter-hour minimum billing
method.  Claimant's counsel utilized this method in his petition for a fee, and the
administrative law judge specifically found that minimum billing in increments of
one-quarter or one-half hour is permissible.  The United States Court of Appeals
for the Fifth Circuit has recently held that its unpublished fee order rendered in
Ingalls Shipbuilding, Inc. v. Director, OWCP [Fairley], No. 89-4459 (5th
Cir. July 25, 1990), is considered circuit precedent which must be followed.
Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], No. 94-40066 (5th Cir.
Jan. 12, 1995).  In Fairley, the court held that attorneys, generally, may
not charge more than one-eighth hour for reading a one-page letter and one-quarter
hour for preparing a one-page letter. See Fairley, slip op. at 2.  As the
administrative law judge did not ascertain whether the individual tasks billed at
the quarter-hour minimum warranted that amount of time in this case, we must remand
the case for reconsideration of the fee award in light of the Fifth Circuit's
decisions in Fairley and Biggs.

     Accordingly, in accordance with the Supreme Court's holding in Bath Iron
Works, the administrative law judge's award of permanent partial disability
benefits pursuant to Section 8(c)(23) is vacated and modified to reflect claimant's
entitlement to an award pursuant to Section 8(c)(13), and the case is remanded to
the administrative law judge for determination of the onset date for the commencement of claimant's benefits.  The administrative
law judge's award of a Section 14(e) assessment is affirmed.  The administrative
law judge's fee award is vacated, and the case is remanded for reconsideration in
accordance with this opinion; the hourly rate awarded is affirmed.

     SO ORDERED.



                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)We decline to address employer's contention that the awarded fee should be reduced because the amount of benefits awarded in this case was nominal, since employer did not raise this argument before the administrative law judge and is not permitted to raise it now for the first time on appeal. Ross v. Ingalls Shipbuilding, Inc., ___ BRBS ___, BRB No. 92-2247 (Feb. 22, 1995); Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993) (en banc) (Brown and McGranery, JJ., concurring and dissenting), modified on other grounds on recon. en banc, 28 BRBS 102 (1994), aff'd in pertinent part mem. sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], No. 94-40066 (5th Cir. Jan. 12, 1995). Back to Text
2)Additionally, we reject employer's argument that the administrative law judge must base his fee award in this case upon the decision rendered by another administrative law judge in Cox v. Ingalls Shipbuilding, Inc., 88-LHC-3335 (September 5, 1991), as fees for legal services must be approved at each level of the proceedings by the tribunal before which work was performed. 33 U.S.C. §928(c); Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 156, modifying in part on recon. 28 BRBS 27 (1994). Back to Text
3)For the reasons set forth in Poole v. Ingalls Shipbuilding, Inc., 27 BRBS 230 (1993), we reject employer's reliance on Cuevas v. Ingalls Shipbuilding, Inc., BRB No. 91-1451 (Sept. 27, 1991)(unpub.). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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