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                                  BRB Nos. 92-1870
                      
V.A. HEWES                              )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )         DATE ISSUED:   01/18/1995)
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )         DECISION and ORDER

     Appeal of the Supplemental Decision and Order Awarding Attorney's Fee of
     James W. Kerr, Jr., Administrative Law Judge, United States Department
     of Labor.

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

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

     Before:  SMITH and DOLDER, Administrative Appeals Judges, and SHEA,
     Administrative Law Judge.*

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Awarding Attorney's Fee
(89-LHC-54) of Administrative Law Judge James W. Kerr, 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).






*Sitting as a temporary Board member by designation pursuant to the Longshore and
Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C.
§921(b)(5)(1988).
     Claimant was employed at employer's shipyard from 1972 to 1988, where he was
exposed to loud industrial noise.  An audiogram performed by Dr. K.D. McClelland,
Ph.D., on January 24, 1987, revealed a 5.3 percent binaural hearing loss.  Based
on the results of this audiogram, claimant filed a claim for occupational hearing
loss benefits under the Act on February 24, 1987, and provided  employer with
notice of his injury on the same day.  On July 29, 1987, employer tendered a
settlement offer of $2,385 which included an attorney's fees which was not to
exceed $250.[1]   On October 8, 1987, employer
initiated voluntary payments of compensation for a 5.3 percent binaural impairment
based upon an average weekly wage of $449.32, completing payment of $3,175.12 on
February 25, 1988. On September 28, 1988, the case was referred to the Office of
Administrative Law Judges for a formal hearing.   

     In his Decision and Order, the administrative law judge awarded claimant
compensation for a 5.3 percent binaural hearing loss based upon the stipulated
average weekly wage of $493.19 pursuant to Section 8(c)(13)(B) of the Act, 33
U.S.C. §908(c)(13)(B).  The administrative law judge also awarded claimant
medical expenses pursuant to Section 7 of the Act, 33 U.S.C. §907, interest,
and an assessment under Section 14(e), 33 U.S.C. §914(e).    

     Thereafter, claimant's attorney filed a fee petition for work performed before
the administrative law judge, in which he requested $2,942.75, representing 23.25
hours of services at $125 per hour plus $36.50 in expenses.  Employer filed
objections and claimant replied to employer's objections.  In a Supplemental
Decision and Order Awarding Attorney's Fee dated May  15, 1992, the administrative
law judge, addressing employer's objections, disallowed 5.75 hours of the time
claimed and reduced the hourly rate for non-trial work to $100. Accordingly, he
awarded counsel a fee of $1,849, representing 15 hours at $100 per hour,[2]  2.5 hours at $125 per hour, plus the $36.50 in
requested expenses.  Employer appeals the fee award on various grounds,
incorporating the arguments it made below into its appellate brief.  Incorporating
his reply brief below, claimant responds, urging affirmance.

     On appeal, employer initially contends that it should not be held liable for
claimant's attorney's fee pursuant to Section 28(a) of the Act, 33 U.S.C.
§928(a).  Employer argues that there has been no successful prosecution of the
claim since it initiated voluntary payment of compensation on October 8, 1987,
within 30 days of receiving formal notice of the claim from the district director
on September 25, 1987, and completed payment for a 5.3 percent binaural hearing
loss, the same percentage of impairment found by the administrative law judge,
prior to referral, on February 25, 1988.  In the alternative, employer argues that
if it is liable for a fee under Section 28(b), 33 U.S.C. §928(b), the fee
should be far less than that awarded and should be limited to the difference
between the amount employer voluntarily paid to claimant and the amount ultimately
awarded by the administrative law judge.

     Under Section 28(a) of the Act, if an employer declines to pay any
compensation within 30 days after receiving written notice of a claim from the
district director, and the claimant's attorney's services result in a successful
prosecution of the claim, the claimant is entitled to an attorney's fee award
payable by the employer.  33 U.S.C. §928(a).  Under Section 28(b), 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
the 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 employer's arguments with respect to liability
under Section 28(a), as the present case is governed by Section 28(b). On February
25, 1988, employer voluntarily paid claimant $3,175.12 for a 5.3 percent binaural
hearing loss based upon an average weekly wage of $449.32.  The parties stipulated
that this amount also included an attorney's fee of $485.  Thereafter, however,
over employer's objections,  claimant continued to assert his right to greater
compensation, medical benefits, and an assessment under Section 14(e). As claimant
was ultimately successful in establishing his right to compensation based on a
higher average weekly wage than that on which employer's voluntary payments were
made, and in establishing his right to medical benefits and an assessment under
Section 14(e), the administrative law judge's determination that employer is liable
for claimant's attorney's fees is affirmed.  Inasmuch as a controversy remained
even after employer voluntarily paid compensation, and claimant was ultimately
successful in obtaining additional compensation over that which employer
voluntarily paid, employer is liable for claimant's counsel's attorney's fee
pursuant to Section 28(b). See Fairley v. Ingalls Shipbuilding, Inc., 25
BRBS 61 (1991)(decision on remand).

     We further reject employer's argument that the amount of the fee award is
excessive.  Employer asserts that a consideration of the quality of the
representation provided, the complexity of the issues involved, and the benefits
obtained mandates a complete reversal or at least a substantial reduction of the
$1,849 fee awarded. We need not address these arguments which employer has raised
for the first time on appeal. See 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); Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179, 182 (1993)
aff'd mem. No. 93-4367 (5th Cir. Dec. 9, 1993); Clophus v. Amoco
Production Co., 21 BRBS 261 (1988).  We note, however, that the administrative
law judge specifically considered the factors cited by employer in determining the
compensability of the services claimed. Moreover, we note that as a result of
claimant's counsel's efforts before the administrative law judge claimant prevailed
in establishing his right to additional disability compensation over that
voluntarily paid by employer, $224.94 in interest, medical benefits, and a Section
14(e) penalty of $348.52. On these facts, employer has not met its burden of
establishing that the $1,849 fee awarded by the administrative law judge is
unreasonable.[3]   

     We also reject employer's contention that under Section 28(b) any fee awarded
should be based solely on the difference between the amount of benefits voluntarily
paid and those awarded.  Although the amount of benefits awarded is a relevant
factor in awarding a fee, a fee under Section 28(b) is not limited to the
difference between the compensation voluntarily paid and that ultimately awarded.[4]  See Hoda v. Ingalls Shipbuilding, Inc.,
___ BRBS ___, BRB Nos. 88-3187/A (Aug. 12, 1994)(McGranery J., dissenting)(decision
on recon.).  

     Although employer also asserts that the hourly rates awarded do not conform
to reasonable and customary charges in the area and that an hourly rate of $75 to
$80 would be more appropriate, we reject this argument.[5]   Employer's assertions are insufficient to meet its burden of
establishing the hourly rates awarded by the administrative law judge are
unreasonable. See Maddon v. Western Asbestos Co, 23 BRBS 55 (1989); see
generally Welch v. Pennzoil Co., 23 BRBS 395 (1990). Moreover, we reject
employer's challenge to counsel's quarter-hour billing method; the Board has
previously determined that this method is reasonable and comports with the
requirement of the applicable regulation, 20 C.F.R. §702.132. See Snowden
v. Ingalls Shipbuilding, Inc., 25 BRBS 245, 252 (1991)(Brown, J., dissenting
on other grounds), aff'd on recon. en banc, 25 BRBS 346 (1992)(Brown, J.,
dissenting on other grounds).[6]   

     Finally, we reject employer's contention that time spent on certain discovery-related activity, trial preparation and attendance, and in preparing and reviewing
various legal documents was either unnecessary, excessive, or clerical in nature.
In entering the fee award, the administrative law judge considered the totality of
employer's objections, disallowed 5.75 of the hours claimed, and found the
remaining itemized entries to be reasonable and necessary.  We decline to further
reduce or disallow the hours approved by the administrative law judge. See
Maddon, 23 BRBS at 62; Cabral v. General Dynamics Corp., 13 BRBS 97
(1981).  Accordingly, we reject employer's arguments and affirm the fee award made
by the administrative law judge.[7]   
      
     Accordingly, the administrative law judge's Supplemental Decision and Order
Awarding Attorney's Fee is affirmed.

     SO ORDERED.
                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


                                                                        

                         ROBERT J. SHEA
                         Administrative Law Judge

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Footnotes.


1)Pursuant to the settlement offer, however, employer would only pay one-half of the $250 fee or $125. Back to Text
2)The administrative law judge awarded claimant's counsel a one hour fee for time spent in defending employer's objections which had been requested in claimant's reply brief. Back to Text
3) Employer cites the ruling in George Hyman Construction Co. v. Brooks, 963 F.2d 1532, 25 BRBS 161 (CRT)(D.C. Cir. 1992), that where an attorney achieves only limited success in a claim filed under the Act, he may not be entitled to a fee for all hours expended on the case. Hensley v. Eckerhart, 461 U.S. 424 (1983). In the case at bar, however, as claimant was fully successful on all controverted issues before the administrative law judge, the limited success issues addressed in these cases are not relevant. See Moody v. Ingalls Shipbuilding, Inc., 27 BRBS 173 (1993)(Brown, J., dissenting). Back to Text
4)Employer cites Cuevas v. Ingalls Shipbuilding, Inc., BRB No. 90-1451 (Sept. 27, 1991)(unpublished) in support of its assertion that the fee awarded is excessive. The Board has held that unpublished cases should not be cited or relied upon by the parties as they lack precedential value. See Lopez v. Southern Stevedores,, 23 BRBS 295, 300 n.2 (1990). Back to Text
5)Employer attached a copy of an article from a Mississippi Defense Lawyers Association newsletter to its objections; however, the article merely indicates that fees for defense attorneys in the area range widely. This does not support employer's contention that the hourly rate requested by claimant's counsel in this case is unreasonable. Back to Text
6)We reject employer's argument that the fee order of United States Court of Appeals for the Fifth Circuit in Ingalls Shipbuilding, Inc. v. Director, OWCP, Nos. 89-4459, 89-4468, 89-4469 (5th Cir. July 25, 1990)(unpublished), mandates a different result. In that fee order, the court declined to award fees for work before it based on a quarter-hour minimum billing method. However, the determination of the amount of an attorney's fee is within the discretion of the body awarding the fee. See 20 C.F.R. §702.132. Back to Text
7)We reject claimant's assertion in his response brief that he is entitled to interest on the attorney's fee award pursuant to Guidry v. Booker Drilling Co., 901 F.2d 485, 23 BRBS 82 (CRT) (5th Cir. 1990), for the reasons enunciated in Fairley v. Ingalls Shipbuilding, Inc., 25 BRBS 61, 65 (1991)(decision on remand). Although claimant's counsel also requests that an additional fee be assessed against employer for services rendered in connection with this appeal, in order to receive a fee for work performed before the Board, counsel must file an fee petition which conforms to the requirements of 20 C.F.R. §802.203. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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