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                                 BRB Nos. 99-1121
                                   and 99-1190 
                                         
FRANK SCHILLINGER                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
CERES TERMINALS, INCORPORATED           )    DATE ISSUED:   07/28/2000
                                             
                                        )
     and                                 )
                                   )
SCHAFFER INSURANCE ADJUSTERS            )
                                   )
          Employer/Carrier-             )  
          Petitioners                   )  DECISION and ORDER
                                  
     Appeals of the Supplemental Decision and Order Granting Attorney Fees of
     Rudolf L. Jansen, Administrative Law Judge, and Compensation Order Award
     of Attorney's Fees of Thomas C. Hunter, District Director, United States
     Department of Labor.

     H. Thomas Lenz (Spector & Lenz, P.C.), Chicago, Illinois, for claimant.

     Gregory P. Sujack (Garofalo, Schreiber & Hart, Chartered), Chicago,
     Illinois, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Granting Attorney Fees
(96-LHC-786) of Administrative Law Judge Rudolf L. Jansen and the Compensation
Order Award of Attorney's Fees (Case No. 10-34501) of District Director Thomas C.
Hunter 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).
     Claimant, a crane operator, injured his right foot at work on March 9, 1995. 
Employer voluntarily paid claimant temporary total disability benefits from March
10 to July 14, 1995, and some medical bills.  The administrative law judge awarded
claimant a scheduled permanent partial disability award under Section 8(c)(4) of
the Act, 33 U.S.C. §908(c)(4), for a 50 percent impairment to the right foot. 
After the administrative law judge, on reconsideration, amended the award to
reflect the maximum rate under Section 6(b)(1) of the Act, 33 U.S.C.
§906(b)(1), claimant obtained an award of approximately $78,000.

     Claimant's counsel subsequently submitted a fee petition to the administrative
law judge requesting an attorney's fee of $11,020, representing 42 hours of
attorney services performed in 1996 and 1997 at $150 per hour, 29.5 hours of
attorney services performed in 1998 and 1999 at $160 per hour, and $1,922.05 in
expenses.  In his Supplemental Decision and Order Granting Attorney Fees, the
administrative law judge awarded claimant's counsel the entire fee requested after
addressing employer's numerous objections to the fee request.  
     Claimant's counsel also filed a fee petition with the district director,
requesting an attorney's fee of $2,137.50, representing 14.25 hours of attorney
services at $150 per hour.  In his Compensation Order Award of Attorney's Fees, the
district director awarded this sum in its entirety, but did not address employer's
specific objections.

     On appeal, employer challenges the fee awards of the administrative law judge,
BRB No. 99-1121, and the district director.  BRB No. 99-1190.[1]   Claimant responds in support of both fee awards.

     We first address employer's challenge to the district director's award of an
attorney's fee.  Employer argues that it is not liable for the entire 14.25 hours
of services requested under Section 28(b) of the Act, 33 U.S.C. §928(b), or
if it is, it is not liable for seven hours of services related to medical bills as
it voluntarily paid them.  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 already paid or tendered by
the employer. See Boland Marine & Manufacturing Co. v. Rihner, 41 F.3d 997,
29 BRBS 43 (CRT)(5th Cir. 1995), aff'g 24 BRBS 84 (1990); 33 U.S.C.
§928(b).  The administrative law judge's award to claimant of scheduled
permanent partial disability benefits and future medical benefits supports
employer's liability for a fee under Section 28(b). See Matulic v. Director,
OWCP, 154 F.3d 1052, 32 BRBS 148 (CRT)(9th Cir. 1998); Hawkins v. Harbert
Int'l, Inc., 33 BRBS 198 (1999).  Moreover, the district director properly held
employer liable for the seven hours of services related to medical bills since
employer had not paid all medical bills at the time of the district director's
referral of the case to the Office of Administrative Law Judges and claimant
subsequently obtained payment of these bills.[2] 
 See Letter to the district director from claimant's counsel dated January
24, 1996.  Thus, we affirm the district director's award of an attorney's fees 
payable by employer.[3]   Rihner, 41 F.3d
at 997, 29 BRBS at 43 (CRT).

     We next address employer's challenges to the administrative law judge's award
of an attorney's fee.  Employer initially challenges the administrative law judge's
award of three hours for time spent preparing the fee petition.  The United States
Court of Appeals for the Ninth Circuit held in Anderson v. Director, OWCP,
91 F.3d 1322, 30 BRBS 67 (CRT)(9th Cir. 1996), that time spent preparing a fee
petition is compensable.  The Board applies this holding in all circuits. See
Hill v. Avondale Industries, Inc., 32 BRBS 186 (1998), aff'd sub nom. Hill
v. Director, OWCP, 195 F.3d 790, 33 BRBS 184 (CRT)(5th Cir. 1999), cert.
denied, 120 U.S. 2215 (2000).  Thus, the administrative law judge properly held
this time compensable, and moreover, employer has not shown an abuse of discretion
in the administrative law judge's finding that the requested three hours for this
service is reasonable.

     Employer additionally challenges the administrative law judge's award of $354
in costs associated with claimant's counsel's research on jury verdicts in cases
involving Drs. Fischer and Dwyer.  Under Section 28(d) of the Act, 33 U.S.C.
§928(d), costs may be awarded where claimant prevails, and the costs are
necessary and reasonable. See Del Vacchio v. Sun Shipbuilding & Dry Dock
Co., 16 BRBS 190 (1984); 20 C.F.R. §702.135.  As employer has shown no
abuse of discretion in the administrative law judge's finding that these costs are
entirely proper, we affirm the administrative law judge's award of these costs.  
     Employer further challenges the amount of the fee award in light of the
simplicity of this case, and the number of hours requested by claimant's counsel
and approved by the administrative law judge.  In this regard, employer contends
that time spent on May 24 and 28, 1996, March 18, 1997, and May 5, 1998, is
unnecessary, that time spent on March 26, April 2, July 15, 24, and 30, and August
2, 1996, April 24, May 13, 1997, February 19, March 19 and 25, May 14, 22, 27 and
29, 1998, and February 23 and 24, 1999, is excessive, and that time spent on March
4, July 10, 1996, and March 19, 24, and 26, and April 1, 1997, is not compensable
as time spent performing clerical functions is not compensable.  Pursuant to
Section 702.132, 20 C.F.R. §702.132, a fee award shall be reasonably
commensurate with the necessary work done given the quality of the representation
and the complexity of the issues involved. See Parrott v. Seattle Joint Port
Labor Relations Committee of the Pacific Maritime Ass'n, 22 BRBS 434 (1989). 
Moreover, a fee award should be for an amount that is reasonable in relation to the
results obtained. See Hensley v. Eckerhart, 461 U.S. 424 (1983); George
Hyman Construction Co. v. Brooks, 963 F.2d 1532, 25 BRBS 161 (CRT)(D.C. Cir. 1992); 20 C.F.R.
§702.132.  

     We reject employer's contention that the administrative law judge erred in
finding that this case did not involve merely a simple question concerning the
extent of claimant's permanent partial disability, as he rationally stated that
litigation would not have been necessary if that were so.  Moreover, employer has
shown no abuse of discretion in this regard, and in any event, the complexity of
the case is related to the amount of benefits awarded, and the fee awarded should
be commensurate with claimant's degree of success.  That claimant obtained
additional compensation before the administrative law judge in the amount of
$78,000 supports a fee award of $11,000. See Hensley, 461 U.S. at 424.  

     Moreover, in considering counsel's fee petition, the administrative law judge
adequately addressed employer's specific objections to the number of hours
requested. Because employer has failed to show on appeal an abuse of discretion by
the administrative law judge in awarding time for these services, having
specifically considered each of employer's objections, we reject these item-specific contentions and decline to reduce the administrative law judge's fee
award.[4]   See generally O'Kelley v. Dep't of
the Army/NAF,    BRBS    , BRB No. 99-0810 (May 2, 2000).  Thus, his attorney's
fee award is affirmed.  

     Accordingly, the administrative law judge's Supplemental Decision and Order
Granting Attorney Fees is affirmed.  The district director's Compensation Order
Award of Attorney's Fees also is affirmed.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.


1)The Board consolidated employer's appeals of the administrative law judge's fee award, BRB No. 99-1121, and the district director's fee award, BRB No. 99-1190, in an Order dated October 5, 1999. Back to Text
2)At the time of the hearing before the administrative law judge all outstanding medical bills had been paid. See Decision and Order at 5, 8. Back to Text
3)Employer's reliance on Todd Shipyards Corp. v. Director, OWCP [Watts], 950 F.2d 607, 25 BRBS 65 (CRT)(9th Cir. 1991) is misplaced. In Watts, the parties reached an agreement over the amount of compensation due claimant at the informal conference and the only remaining issue concerned the attorney's fee. The court concluded in Watts that Section 28(b) does not authorize the payment of an attorney's fee for services performed by claimant's attorney unless there remains a dispute over claimant's compensation at the conclusion of informal proceedings and claimant obtains additional benefits through formal proceedings. See Watts, 950 F.2d at 607, 25 BRBS at 65 (CRT). In the instant case, employer paid temporary total disability benefits until July 14, 1995. In addition, the parties did not agree as to the amount of compensation due claimant at the informal conference and the case went on to a hearing and decision by the administrative law judge, who awarded more compensation to claimant than employer had voluntarily paid. See Matulic, 154 F.3d at 1052, 32 BRBS at 148 (CRT). Back to Text
4)As employer did not raise objections before the administrative law judge to the services performed on April 14, 16, and 17, 1997, it cannot raise them for the first time before the Board on appeal. See Clophus v. Amoco Production Co., 21 BRBS 261 (1988). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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