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                                 BRB No. 92-1791

ALLEN KENNETH MIDDLETON                 )    
          Claimant-Respondent           )
     v.                                 )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   10/19/1995
INCORPORATED                            )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeals of the Decision and Order on Remand, the Decision and Order on
     Motion for Reconsideration, and the Supplemental Decision and Order
     Awarding Attorney's Fees of Ben H. Walley, Administrative Law Judge,
     United States Department of Labor.

     Mitchell G. Lattof, Sr. (Lattof & Lattof, P.C.), Mobile, Alabama, for

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

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


     Employer appeals the Decision and Order On Remand, the Decision and Order on
Motion for Reconsideration, and the Supplemental Decision and Order Awarding
Attorney's Fees (89-LHC-127) of Administrative Law Judge Ben H. Walley 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).  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. 
See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     This is the second time that this case has come before the Board.  Claimant,
a pipefitter, worked for employer for three days in February and March 1972 where
he was exposed to loud noise. Subsequent to working for employer, claimant held
several non-maritime construction jobs which also involved exposure to noise. 
Based on a February 27, 1987, audiogram which revealed an 8.1 percent binaural
hearing loss, claimant sought compensation and medical benefits under the Act from
employer.  See 33 U.S.C. §§907, 908(c)(13).  In his Decision and
Order Denying Benefits, the administrative law judge found that claimant invoked
the Section 20(a) presumption with regard to causation, but that employer rebutted
it.  After considering the evidence as a whole, the administrative law judge
concluded, based primarily on the credentials and opinion of employer's medical
expert, Dr. Lamppin, that claimant's condition was not causally related to the
exposure he received while working for employer.  Dr. Lamppin had opined that
claimant had an 8.4 binaural hearing loss and that the audiogram demonstrated a
high frequency hearing loss compatible with noise-induced hearing loss "if the man
is exposed to sufficient noise for a sufficient period of time."  In his opinion,
it was not probable that eight days of noise exposure would cause this type of
loss, as it must be based on long-term exposure to intense noise.[1]   Claimant appealed the denial of benefits,
arguing that Dr. Lamppin's opinion did not provide substantial evidence to support
the administrative law judge's decision.

     In its initial Decision and Order, the Board held that the administrative law
judge correctly determined that claimant introduced sufficient evidence to invoke
the Section 20(a) presumption, inasmuch as he demonstrated that he sustained an 8.1
percent binaural noise-induced hearing loss and employer had conceded that claimant
was exposed to hazardous noise levels while working for employer.  Middleton v.
Ingalls Shipbuilding, Inc., BRB No. 89-2846 (June 26, 1991) (unpublished).  The
Board determined, however, that as Dr. Lamppin recognized that claimant's audiogram
demonstrated a high frequency hearing loss compatible with noise exposure and Dr.
Lamppin did not state that the exposure claimant received while working for
employer played no part in his impairment, his opinion was insufficient to
establish rebuttal, contrary to the administrative law judge's determination.
Accordingly, the Board held that claimant established a work-related injury.

     The Board also held that while the administrative law judge correctly
recognized that Dr. Lamppin indicated that it was not probable that the degree of
hearing loss exhibited on the February 1987 audiogram was caused by his employment
with employer, the fact that claimant's condition was not actually due to the
exposure he received with employer did not relieve employer of liability, as
exposure to injurious stimuli is all that is required for an employer to be held
liable as the responsible employer under Travelers Insurance Co. v.
Cardillo, 225 F.2d 137 (2d Cir. 1955), cert. denied, 350 U.S. 913
(1955).  While recognizing that a potentially liable employer could escape
liability consistent with Cardillo by establishing that claimant received
subsequent injurious exposure while working for a subsequent covered employer, the
Board determined that this option was unavailable to employer in this case because
it had stipulated that it was claimant's last maritime employer. Therefore,
employer was responsible for payment of claimant's benefits.  Accordingly, the
Board vacated the administrative law judge's denial of benefits and remanded for
consideration of all remaining issues.

     Following the Board's decision, the parties entered into a Joint Stipulation
of Facts.  Among the stipulations, the parties agreed that the Board's order
mandates that the administrative law judge find that claimant is entitled to
compensation benefits from employer for an 8.1 percent binaural hearing loss. 
Employer nevertheless noted its disagreement with the Board's holding on this issue
and reserved its right to appeal.  The administrative law judge adopted the
parties' stipulation as the basis for his Decision and Order on Remand, and
accordingly awarded claimant compensation benefits under Section 8(c)(13)(B), 33
U.S.C. §908(c)(13)(B), for an 8.1 percent binaural hearing impairment, based
on a stipulated average weekly wage of $773.21, for 16.2 weeks beginning on
February 27, 1987.  On May 11, 1992, the administrative law judge issued a Decision
and Order which, in part, granted employer's motion for reconsideration.[2] 

     On appeal, employer initially contends that the administrative law judge erred
in holding it liable for claimant's hearing loss benefits as the record mandates
the finding that claimant's employment with employer is not the cause of his
hearing impairment.  Employer maintains that claimant failed to establish a
prima facie case for invoking the Section 20(a) presumption, as he
introduced no evidence sufficient to establish that the noise level at employer's
facility during the brief time he worked there was injurious or that the exposure
he received during his three days of employment would be sufficient to contribute
to any permanent hearing impairment.  Employer also argues that the Board erred in
its initial Decision and Order in concluding that the fact that claimant's
condition was not actually caused by the exposure he received while working for
employer does not relieve employer of liability.  Claimant responds, urging

     We reject employer's arguments. The issues of causation and employer's status
as the responsible employer were fully considered and resolved by the Board in the
prior appeal of this case by claimant. Our prior determination that employer is
liable for claimant's work-related hearing loss is the law of the case; we decline
to address these argument again. See

Bruce v. Bath Iron Works Corp., 25 BRBS 157 (1991); Doe v. Jarka Corp. of
New England, 21 BRBS 142 (1988).[3] 

     Employer also appeals the fee award made by the administrative law judge,
incorporating the objections it made below into its brief on appeal. Claimant
responds, urging affirmance. Claimant's attorney submitted a fee petition,
requesting $4,087.50 for 27.25 hours of services at $150 per hour and $75 in
expenses.  Employer filed objections and claimant's attorney responded to the
objections.  In a Supplemental Decision and Order Awarding Attorney's Fees, the
administrative law judge stated that employer's objections were "specific and
persuasive," but not convincing, and approved all the hours requested. The
administrative law judge further determined that the $150 hourly rate claimed was
reasonable given the high level of skill required to prepare for and to present the
issues in this case, and the different burdens placed upon plaintiff and defense
attorneys.[4]   Accordingly, the administrative law
judge approved the full $4,087.50 requested, as well as the $75 in costs.

     On appeal, employer initially contends that the fee award made by the
administrative law judge is premature, arguing that there has been no successful
prosecution of the claim, inasmuch as claimant's entitlement to hearing loss
benefits is an issue currently on appeal. We disagree.  It is well established that
to further the goal of administrative efficiency an administrative law judge may
render an attorney's fee determination when he issues his decision; such an award,
however, does not become effective, and thus is not enforceable, until all appeals
are exhausted. Williams v. Halter Marine Service, Inc., 19 BRBS 248 (1987);
Bruce v. Atlantic Marine, Inc., 12 BRBS 65 (1980), aff'd, 661 F.2d
898, 14 BRBS 63 (5th Cir. 1981).  We hold, therefore, that the administrative law
judge committed no error in considering claimant's counsel's fee petition while the
case was pending on appeal before the Board.

     We also reject employer's argument that the fee awarded by the administrative
law judge is excessive.  Although employer maintains that consideration of the
quality of the representation provided, the complexity of the issues involved, and
the amount of benefits obtained mandates a complete reversal or at least a
substantial reduction of the fee award, we decline to address these arguments which
have been raised by employer for the first time on appeal. 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], 46 F.3d 66 (5th Cir. 1995);
Hoda v. Ingalls Shipbuilding, Inc., 28 BRBS 197 (1994) (McGranery, J.,
dissenting) (Decision on Recon.); Watkins v. Ingalls Shipbuilding, Inc., 26
BRBS 179 (1993), aff'd mem.,  12 F.3d 209 (5th Cir. 1993).  We note,
however, that the administrative law judge did consider the nature of the case and
the quality of representation in determining that the $150 hourly rate was
reasonable and appropriate.  While employer also argues that the $150 hourly rate
awarded is excessive and that an hourly rate of $90 to $100 would be more
appropriate, employer has not established an abuse of discretion by the
administrative law judge in this regard. See Maddon v. Western Asbestos Co.,
23 BRBS 55 (1989); Snowden v. Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991)
(Brown, J., dissenting on other grounds), aff'd on recon. en banc, 25 BRBS
346 (1992) (Brown, J., dissenting on other grounds).[5] 

     Finally, we reject employer's contention that time spent on certain discovery-related activity, trial preparation, and in preparing and reviewing various
correspondence and legal and medical documents was either unnecessary or excessive. 
The administrative law judge considered employer's objections, but determined that
all the services rendered by claimant's counsel were reasonable and necessary.  We
decline to disturb this rational determination. See Maddon, 23 BRBS at 55;
Cabral v. General Dynamics Corp., 13 BRBS 97 (1981).[6] 

     Accordingly, the administrative law judge's Decision and Order on Remand, the
Decision and Order on Motion for Reconsideration, and the Supplemental Decision and
Order Awarding Attorney's Fees are affirmed.



                         ROY P. SMITH
                         Administrative Appeals Judge


                         JAMES F. BROWN
                         Administrative Appeals Judge


                         REGINA C. McGRANERY
                         Administrative Appeals Judge 

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1)Apparently Dr. Lamppin based his opinion on the erroneous assumption that claimant worked for employer for eight, rather than three days. Back to Text
2)In the "Order" portion of the Decision and Order on Remand, the administrative law judge erroneously stated that claimant's compensation rate was $773.21, whereas this was the stipulated average weekly wage. This error was raised by employer in its reconsideration motion and was corrected by the administrative law judge in his Decision and Order on Motion for Reconsideration. Back to Text
3)Citing Bruce v. Bath Iron Works Corp., 25 BRBS 157 (1991), employer argues that it cannot be held liable for claimant's benefits because the 1987 audiogram cannot be "projected back" 15 years, to the year when claimant last worked for employer to establish that he had any hearing loss at the time. Contrary to employer's assertions, however, Bruce does not preclude an administrative law judge from relying on a later audiogram to establish the extent of claimant's hearing loss at an earlier time; it merely recognizes that the decision not to do so on the facts in that case was within the administrative law judge's discretion. Back to Text
4)The administrative law judge made this observation in response to employer's attachment of a copy of an article from a Mississippi Defense Lawyers Association newsletter which indicates that fees for defense attorneys in the area range widely. Back to Text
5)We reject employer's reliance on the fee award of Administrative Law Judge A.A. Simpson in Cox v. Ingalls Shipbuilding, Inc., No. 88-LHC-3335 (September 5, 1991) in which Judge Simpson reduced various entries as duplicative of the work performed in other cases, and awarded different hourly rates to claimant's attorneys based on their status as either a senior partner or relatively new associate. The amount of the attorney's fee award lies within the discretion of the body awarding the fee, and the decision of an administrative law judge regarding the amount of a fee is not binding precedent on another body in a different case. Back to Text
6)Employer argues that the 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) (unpublished), mandates a different result in this case. Although the United States Court of Appeals for the Fifth Circuit recently held that its unpublished fee order in Fairley is considered to be circuit precedent which must be followed, we need not address this argument which employer is making for the first time on appeal. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.3d 66 (5th Cir. 1995) (unpublished). We note, however, that the one-half hour charges contested by employer on April 3, 1989, August 11, 1989, February 21, 26, and 27, 1992, and May 1, 1992, are not inconsistent with Fairley. While the court held in Fairley that attorneys generally may not charge more than one-eighth hour for reading a one-page letter, and one quarter-hour for writing a one-page letter, the entries challenged by employer either involve review of a multi-page document, the performance of services not addressed in Fairley, or the performance of more than one service. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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