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                                 BRB No. 92-2255

THOMAS J. RING                          )
                                        )
          Claimant Petitioner           )
                                        )
     v.                                 )
                                        )
I.T.O. CORPORATION                      )    DATE ISSUED:   01/24/1995
OF VIRGINIA                             )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Order Denying Payment of Attorney Fees of B.E. Voultsides,
     District Director, United States Department of Labor.

     John H. Klein (Rutter & Montagna), Norfolk, Virginia, for claimant.

     Gerard E.W. Voyer (Taylor & Walker, P.C.), Norfolk, Virginia, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Order Denying Payment of Attorney Fees (Case No. 5-75713)
of District Director B. E. Voultsides 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 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 Roach v. New York Protective Covering Co., 16 BRBS 114 (1984); 
Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     On May 26, 1990, claimant injured his right leg and foot during the course of
his employment as a longshoreman with employer; subsequently, claimant underwent
amputation of his right leg due to complications from his pre-existing diabetic
condition.  Employer voluntarily commenced payments of temporary total disability
compensation to claimant as of May 27, 1990, and thereafter converted those
payments to permanent total disability compensation as of June 5, 1990.  On July
18, 1990, employer filed a Notice of 

*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).

Controversion, Form LS-207, stating only that claimant's container royalty, holiday
and vacation pay were not included in its computation of claimant's average weekly
wage. On April 27, 1991, claimant obtained counsel and filed a claim for benefits
under the Act.  Both before and during the informal conference held on May 22,
1991, employer acknowledged claimant's entitlement to permanent total disability
compensation.  In August 1991, employer increased its compensation payments to
claimant to reflect an adjustment in its average weekly wage computation.  In his
Compensation Order, filed January 21, 1992, the district director found that
claimant was entitled to permanent total disability compensation, that he had
reached maximum medical improvement on December 17, 1990, that claimant's average
weekly wage at the time of injury was $676.07, and that employer was entitled to
relief under Section 8(f) of the Act, 33 U.S.C. §908(f).

     Thereafter, claimant's counsel submitted a fee petition to the district
director requesting an attorney's fee of $2,676.75, representing 17 hours of
services at $155 per hour and costs of $68.  Employer filed objections to this fee
petition arguing, inter alia, that it was not liable for claimant's
counsel's fee.  In a letter dated March 18, 1992, the district director requested
that  claimant's attorney advise him under which subsection of Section 28 of the
Act, 33 U.S.C. §928, he was a due a fee.  On May 22, 1992, claimant's counsel
responded, requesting that the district director make a disposition of his fee
request and noting that he expected to appeal the matter.  In his Order Denying
Payment of Attorney's Fee, the district director found that neither Section 28(a)
nor Section 28(b) applies in this case and, therefore, employer was not responsible
for claimant's attorney's fee.  Accordingly, the district director denied
claimant's counsel request for an attorney's fee payable by employer.

     On appeal, claimant's counsel challenges the district director's denial of his
request for an attorney's fee payable by employer.  Specifically, claimant's
counsel contends that employer is liable for his fee pursuant to Section 28(b) of
the Act, 33 U.S.C. §928(b), since employer filed a Notice of Controversion,
and, as a result of counsel's assistance, claimant obtained a higher average weekly
wage and therefore greater compensation.  In response, employer urges affirmance,
averring that it unilaterally adjusted claimant's average weekly wage following the
informal conference and that, therefore, claimant's counsel did not "assist"
claimant in obtaining greater compensation.  

     Employer may be held liable for a claimant's counsel's fee only under the
provisions of Section 28(a) or Section 28(b) of the Act, 33 U.S.C. §928(a),
(b).[1]   Section 28(b) states, in pertinent part:

        If the employer or carrier pays or tenders payment of compensation
     without an award pursuant to section 914(a) and (b) of this title, and
     thereafter a controversy develops over the amount of additional
     compensation, if any, to which the employee may be entitled, the
     district director or Board shall set the matter for an informal
     conference and following such conference the deputy commissioner or
     Board shall recommend in writing a disposition of the controversy.  If
     the employer or carrier refuse to accept such written recommendation,
     within fourteen days after its receipt by them, they shall pay or tender
     to the employee in writing the additional compensation, if any, to which
     they believe the employee is entitled.  If the employee refuses to
     accept such payment or tender of compensation, and thereafter utilizes
     the services of an attorney at law, and if the compensation thereafter
     awarded is greater than the amount paid or tendered by the employer or
     carrier, a reasonable attorney's fee based solely upon the difference
     between the amount awarded and the amount tendered or paid by the
     employer or carrier, shall be awarded in addition to the amount of
     compensation... .

33 U.S.C. §928(b).  Thus, Section 28(b) authorizes the assessment of
attorney's fee against employer if a dispute arises over additional compensation
and, following an informal conference, employer declines to pay the disputed
amount.  Under such circumstances, employer must pay claimant's attorney's fee if
claimant is successful in obtaining a greater award than that paid or tendered by
employer.[2]   See Todd Shipyards Corp. v.
Director, OWCP [Watts], 950 F.2d 607, 25 BRBS 65 (CRT)(9th Cir. 1991); see
generally Ahmed v. Washington Metropolitan Area Transit Authority, 27 BRBS 24
(1993).

     In the instant case, the district director, in addressing counsel's fee
request, initially noted that employer agreed that claimant was entitled to
compensation for permanent total disability, and that employer had paid and was
continuing to pay claimant compensation for total disability.  Next, the district
director stated that although employer had controverted the issue of claimant's
average weekly wage, its position was "in accordance with the Department of Labor
and had not been an issue in this case."[3]  
See Order Denying Payment of Attorney's Fee at 2.  Thereafter, the district
director summarily concluded that neither Section 28(a) nor Section 28(b) was
applicable in the instant case and that, thus, employer could not be held liable
for claimant's counsel's attorney's fee.  Based upon the summary nature of the
district director's fee order, we are unable to ascertain whether counsel's
contention that through his assistance claimant received greater compensation based
upon a higher average weekly wage has merit.  

     In this regard, we note that the record in this case contains conflicting
correspondence.  Specifically, on April 24, 1991, claimant's counsel requested an
informal conference on the issue of permanent total disability, and sought to
obtain from employer medical records, reports, bills, employer's first report of
accident, and the information upon which employer had calculated claimant's average
weekly wage, as well as amounts of compensation and medical benefits paid by
employer to date.  See Letter dated April 24, 1991.  In a letter dated May
13, 1991, employer informed claimant that it had no intention of contesting his
entitlement to permanent total disability benefits; rather, employer stated that
it would seek relief pursuant to Section 8(f) of the Act.  Following the informal
conference, the claims examiner, in a Memorandum of Informal Conference dated May
30, 1991, stated that the parties had agreed on the issue of permanent total
disability, that relief pursuant to Section 8(f) was the only issue remaining, and
that as claimant appeared unprepared to discuss the issue of average weekly wage,
although it was recommended that claimant's temporary total disability benefits be
converted to permanent total disability benefits, "the issue of average weekly wage
will be addressed at such time as the claimant provides evidence to substantiate
their claim."  Memorandum at 2.  Thereafter, claimant, without mentioning any
disputed matter and based upon the average weekly wage that employer had originally
proposed, made a proposal for a lump-sum settlement; employer elected not to
settle. See Letter dated June 3, 1991.  Subsequently, employer accepted the
claims examiner's recommendation regarding payment for permanent total disability
and, although the claims examiner's memorandum did not offer a recommendation
regarding claimant's average weekly wage, employer amended its calculation and
began to pay claimant at a higher weekly rate.  

     Based upon the district director's failure to make specific findings regarding
these correspondences, we are unable to exercise our standard of review in order
to determine whether a controversy in fact existed at the informal conference
regarding claimant's average weekly wage, whether claimant thereafter received
greater compensation through the assistance of his counsel or, as employer asserts,
whether employer voluntarily and unilaterally adjusted claimant's average weekly
wage following the informal conference.  Resolution of these issues requires
further findings, which the Board is not empowered to make. See generally Roach, 16 BRBS at 114.  We therefore vacate the district
director's order denying claimant's counsel a fee payable by employer, and we
remand the case for the district director to consider the applicability of Section
28(b) to this case; specifically, the district director must address claimant's
counsel's assertions regarding the existence of a controversy and his assistance
in gaining greater compensation for claimant, and employer's response to those
assertions.  

     Accordingly, the district director's Order Denying Payment of Attorney Fees
is vacated and the case is remanded for reconsideration of the fee petition in
accordance with this opinion.

     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 Section 28(a) of the Act, if employer declines to pay compensation within 30 days after receipt of written notice of the claim from the district director, it is liable for a reasonable attorney's fee incurred thereafter by claimant in pursuit of his claim. See Martin v. Kaiser Co., Inc., 24 BRBS 112 (1990). In the instant case, it is uncontested that employer voluntarily paid claimant compensation from May 27, 1990, through the date of the informal hearing; thus, Section 28(a) is inapplicable in this case. Back to Text
2)The legislative history regarding Section 28(b) of the Act states, in part, that: A new provision is added dealing with cases where payment of compensation is tendered and an unresolved controversy develops about the amount of additional compensation, despite the written recommendation of the deputy commissioner. The provision directs an award of a reasonable attorney's fee . . . where the employer or carrier has refused to accept the recommendation . . . . H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 3, reprinted in 1972 U.S.C.C.A.N. 4698, 4717. Back to Text
3)Employer concedes on appeal that this statement is inaccurate and that, in fact, the Department had advised it that it did not agree with employer's method of calculating claimant's average weekly wage. See Employer's brief at 2. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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