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                                 BRB No. 99-1122

JEFFREY LEE MARTIN                 )
          Claimant-Responden       )
     v.                            )
McGINESS, INCORPORATE              )    DATE ISSUED:   07/27/2000
     and                           )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER
     Appeal of the Supplemental Decision and Order Granting Attorney Fees of
     Rudolf L. Jansen, Administrative Law Judge, United States Department of

     Steven C. Schletker (Schletker, Hornbeck & Moore), Covington, Kentucky,
     for claimant.

     Gregory P. Sujack (Garofalo, Schreiber & Hart), Chicago, Illinois, for

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.


     Employer appeals the Supplemental Decision and Order Granting Attorney Fees
(98-LHC-0950) of Administrative Law Judge Rudolf L. Jansen 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, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co.,
12 BRBS 272 (1980).

     On September 6, 1995, claimant was injured during the course of his employment
for employer as a machinist when a 150 pound rudder shaft fell on his left hand and
wrist.  Claimant alternated between working light duty for employer and being
unable to work due to hand and wrist pain until January 21, 1997, when he stopped
working as a result of  pain and infected sores on the back of his left hand.  The
record indicates that claimant was paid compensation by the Ohio Bureau of Workers'
Compensation pursuant to the workers' compensation laws of Ohio during his periods
of temporary total disability from the date of injury until December 1997, when
compensation benefits were terminated.  On December 11, 1997, claimant requested
that employer initiate compensation payments under the Act, which employer declined
to do.  On May 18, 1998, claimant resumed receiving compensation benefits pursuant
to the workers' compensation laws of Ohio.  

     After the claim's referral to the Office of Administrative Law Judges, but
prior to the formal hearing, employer stipulated that claimant was entitled to
coverage under the Longshore Act.  After a formal hearing on September 29, 1998,
the administrative law judge, in his Decision and Order-Awarding Benefits, rejected
employer's contentions that claimant is able to return to his usual employment as
a machinist and, in the alternative, that it established the availability of
suitable alternate employment.  Moreover, he credited the opinion of claimant's two
treating physicians to find that claimant's disability remains temporary in 
nature.  Accordingly, claimant was awarded compensation under the Act for 
temporary total disability from September 6 to October 23, 1995, from December 12,
1995, to February 6, 1996, and from January 22, 1997, and continuing, as well as
medical benefits.   33 U.S.C. §§907(a), 908(b).  

     Subsequent to the administrative law judge's decision, claimant's counsel
submitted a fee petition to the administrative law judge requesting a fee of
$26,062.50, representing 182.25 hours at an hourly rate of $150 for lead counsel
and an hourly rate of $125 for associate counsel, plus costs of $5,680.35.  In his
Supplemental Decision and Order Granting Attorney Fees, the administrative law
judge rejected employer's objections to the fee requested and awarded claimant's
counsel the requested fee and costs.

     On appeal, employer contends that the administrative law judge erred in
awarding claimant's counsel a fee payable by employer because claimant did not
obtain greater benefits than those which claimant was receiving under the Ohio
workers' compensation scheme.  In the alternative, employer contends that if a fee
is owed, it should be less than that awarded.  Claimant responds, urging affirmance
of the administrative law judge's fee award. 
     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 the employer.  33
U.S.C. §928(a).  Pursuant to Section 28(b) of the Act, when an employer pays
or tenders benefits without an award and thereafter a controversy arises over
additional compensation due, the employer shall 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).    

     We reject employer's contention that the administrative law judge erred in
holding it liable for claimant's attorney's fee.  The administrative law judge
found significant, and employer does not dispute,  that employer acknowledged
jurisdiction under the Longshore Act after transfer of the case for a formal
hearing.  Contrary to employer's contention, establishing claimant's coverage under
the Act constitutes a successful prosecution of the claim in this case.
Although the temporary total disability benefits may have been paid at the same
rate under the state and federal schemes, the administrative law judge found that
ultimately the disability and medical benefits of the Longshore Act are superior
to that provided by the state act.  See Kinnes v. General Dynamics
Corp., 25 BRBS 311 (1992).  Moreover, claimant obtained benefits for the
period during which the state benefits were suspended.  In addition, employer
contested the extent of claimant's disability before the  administrative law judge. 
Specifically, employer contended that claimant was capable of returning to his
usual employment and, in the alternative, that it established the availability of
suitable alternate employment.  Claimant ultimately prevailed on these issues
resulting in an award of continuing compensation under the Act for temporary total
disability. Accordingly, as claimant's counsel's services resulted in claimant's
obtaining greater benefits, we hold that the  administrative law judge properly
held employer liable for claimant's attorney fee. See Mobley v. Bethlehem Steel
Corp., 20 BRBS 239 (1988), aff'd sub nom. Bethlehem Steel
Corp. v. Mobley, 920 F.2d 558, 24 BRBS 49 (CRT)(9th Cir. 1990).

     We also reject employer's allegations regarding the amount of the fee. 
Employer  asserts that the administrative law judge improperly awarded an attorney's fee for the time spent for
two attorneys to attend the formal hearing.  In addressing this objection, the administrative law judge specifically
found that the services of associate counsel, Mary Ray, should be compensated  after evaluating the responsibilities and
services she rendered  in the period immediately preceding and during the hearing.  The Board has stated that work
performed by co-counsel participating in the litigation of a claim is compensable where the complexity of the case or other
factors warrant it. See Parks v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998),
aff'd mem., 202 F.3d 259 (4th Cir. 1999)(table).  Inasmuch as the  administrative law judge fully
considered the necessity and  quality  of the services of the second attorney, we reject employer's contention of error in this
regard as it has not established an abuse of discretion by the  administrative law judge.

     Finally, we reject employer's contention regarding claimant's counsel's
quarter-hour minimum billing method.  The Board has previously determined that this
method is reasonable under the applicable regulation, 20 C.F.R. §702.132.
Neeley v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 138
(1986); cf. Conoco, Inc. v. Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS
187(CRT) (5th Cir. 1999) (Fifth Circuit has rejected method of minimum quarter-hour

     Claimant's counsel has filed a fee petition for time expended before the Board
in which he requests a fee of $1,575, representing 10.5 hours at an hourly rate of
$150.  Employer requests 30 days to respond to claimant's fee petition after
issuance of the Board's decision.  It is well-established that due process requires
that employer be given a reasonable time to respond to a fee request. See Todd
Shipyards Corp. v. Director, OWCP, 545 F.2d 1176, 5 BRBS 23 (9th Cir.
1976); Codd v. Stevedoring Services of America, 32 BRBS 143 (1998). 
Accordingly, employer's request is granted; its response to counsel's fee petition
must be received within 30 days from receipt of this decision.

     Accordingly, the administrative law judge's Decision and Order Granting
Attorney Fees is affirmed.  Employer is granted 30 days to respond to claimant's
fee petition for services rendered before the Board.


                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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