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                                  BRB No. 99-605

ROBERT C. USHER                         )
          Claimant-Petitioner           )
     v.                                 )
JONES OREGON STEVEDORING                )    DATE ISSUED:   03/09/2000
COMPANY                                 )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

          Appeal of the Order Denying Attorney's Fees of Edward C. Burch,
     Administrative Law Judge, United States Department of Labor.

                          Charles Robinowitz, Portland, Oregon, for claimant.

                          William M. Tomlinson and Jay W. Beattie (Lindsay, Hart, Neil & Weigler, L.L.P.), Portland, Oregon, for
             self-insured employer.

                          Before:   HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and
             NELSON, Acting Administrative Appeals Judge.

             PER CURIAM:

             Claimant appeals the Order Denying Attorney's Fees (93-LHC-2066) of
Administrative Law Judge Edward C. Burch 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
the law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

             Claimant injured his knees in 1988 while working for employer.  The injury
aggravated pre-existing hip and knee conditions and resulted in three surgeries: 
left and right knee replacements and a total hip replacement.[1]   Between January 1989 and December 1992, claimant
traveled a total of 3,795 miles for his medical treatment.  He filed a claim for
reimbursement of his transportation costs, as well as of the cost of two continuous
passive motion devices to exercise his knees, for a total of over $3,200.  In a
letter dated September 3, 1998, employer offered to pay claimant for the knee
exercisers, if claimant could prove he paid for them, and to reimburse his mileage
at the rate in effect at the time the mileage was incurred, plus interest. 
Claimant rejected the offer and continued with formal proceedings.

             The administrative law judge noted that employer reiterated its offer at the
hearing.  In his decision dated December 22, 1998, the administrative law judge
stated that, based on the previous decision in this case, employer is liable for
all reasonable and necessary medical treatment, including the exercisers and the
traveling costs.  However, as claimant could not provide proof of payment for the
exercise devices, his request for reimbursement was denied.  Decision and
Order/Transp. at 4.  With regard to the transportation costs, the administrative
law judge found that employer is liable for mileage at the rates then in effect,
plus interest.  Id. at 5.

             Following this decision, claimant's counsel submitted a petition for an
attorney's fee for work performed between June 1, 1998, and February 1, 1999,
amounting to six hours at an hourly rate of $200, plus -hour at an hourly rate of
$75, for a total fee of $1,237.50.  Employer objected to the hourly rate of $200
and to all charges for work performed on or after September 3, 1998.  In the
decision which is the basis of this appeal, the administrative law judge determined
that a fee in this case is governed by Section 28(b) of the Act, 33 U.S.C.
§928(b).  Order Denying Attorney's Fees at 1.  He found that employer's
September 3, 1998, offer constituted a "tender" under Section 28(b), and,
consequently, as claimant rejected the offer and failed to obtain additional
benefits by proceeding to trial, employer is not liable for a fee for work
performed after September 3, 1998.  Additionally, the administrative law judge
concluded that Section 28(b) relieves employer of liability for  work performed
prior to the date of the tender, despite the fact that employer did not object to
this time. Id. at 2.  Claimant appeals the denial of the fee, and employer
responds, urging affirmance.

             Claimant puts forth three reasons why he believes employer should be liable
for the fee.  First, he argues that fee liability in this case is grounded in
Section 28(a), 33 U.S.C. §928(a), rather than Section 28(b), asserting that
there was an original controversy, employer refused to pay the requested amount and
employer is now paying benefits pursuant to an award.  This contention is rejected,
as Section 28(a) applies where employer refuses to pay any benefits, and here,
employer was paying disability and medical benefits under the initial decision at
the time the new controversy arose.  Thus, Section 28(b) applies. See Hawkins
v. Harbert International, Inc., 33 BRBS 198, 203 (1999).

             Next, claimant contends the September 1998 offer was not complete, as it did
not address payment for a reasonable attorney's fee.  In order to escape liability
under  Section 28(b), however, an employer or carrier must tender the payment of
disputed disability or medical benefits.  Where the claimant rejects such an offer,
the employer is liable for a fee only to the extent that the claimant obtains
additional benefits.  There is nothing in Section 28(b) supporting the proposition
that the fee itself must be included in the offer, particularly since the tendered
amount is one which is compared with the ultimate award to determine whether the
claimant obtained more than was offered.  Assessment of the attorney's fee is a
task  undertaken after benefits have been established; the amount of benefits
awarded is relevant to the amount of the fee. See 20 C.F.R. §702.132. 
Therefore, we reject claimant's contentions that the tender offer by employer was

             Claimant's final contention has merit.  Claimant contends the administrative
law judge erred in denying him an employer-paid fee for work performed prior to
receipt of the tender.  He asserts that the administrative law judge erred in
applying Armor v. Maryland Shipbuilding & Dry Dock Co., 19 BRBS 119 (1986)
(en banc), decision after remand, 22 BRBS 316 (1989), to deny the fee
in its entirety rather than denying only those services performed subsequent to
employer's tender offer.  Claimant argues that the rule in Armor must be
clarified by explaining whether an employer is liable for a fee for work performed
prior to the tender of payment and, if so, whether such liability extends to the
date of the tender or to the date the tender is received by the claimant.

          Armor provides that an offer to settle a claim is a tender of compensation
under Section 28(b), and a "tender" demonstrates the employer's "readiness,
willingness and ability . . . expressed in writing," to make the payment of
compensation. Armor, 19 BRBS at 122. Compare Ahmed v. Washington
Metropolitan Area Transit Authority, 27 BRBS 24 (1993) (counsel's willingness
to recommend a settlement to client employer is not a tender); Kaczmarek v.
I.T.O. Corp. of Baltimore, Inc., 23 BRBS 376 (1990) (oral stipulation is not
a tender).  In Armor, the employer made two lump sum offers to the claimant,
both of which were made while the case was before the district director.  After the
claimant rejected both offers, the case was transferred to the Office of
Administrative Law Judges and formal adjudication followed. Armor, 19 BRBS
at 120.  Because the amount ultimately awarded was less than the amount of the
second offer, the Board vacated the administrative law judge's assessment of an
attorney's fee against the employer and remanded the case for him to consider a fee
payable by the claimant. Id. at 122-123.  In the present case, the offer was
made while the case was before the administrative law judge; indeed, it occurred
one month before the hearing.  Thus, claimant argues he is entitled to an
attorney's fee payable by employer at least until the time he received the tender.

             In Kleiner v. Todd Shipyards Corp., 16 BRBS 297, 299 (1984), the Board
held that where the parties signed a stipulation at the hearing which resolved the
controversy,  the employer remained liable for work performed prior to such
agreement.  In Byrum v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS
833, 836 (1982), the claimant underwent several audiometric evaluations, one of
which revealed a 25.3 percent binaural impairment.  The employer paid benefits for
a lesser impairment.  Four days before the hearing, the employer made a second
payment.  The total of the two payments constituted full compensation for the
claimant's 25.3 percent binaural impairment, which was the full loss the
administrative law judge later determined the claimant had sustained. Id.
at 835-836.  The Board reversed the administrative law judge's award of a fee for
work performed after the second payment, as the claimant did not obtain additional
compensation, but it held that the employer was liable for an attorney's fee for
work performed up to the date of the second payment. Id. at 836.

             Relying on the rationale of Kleiner and Byrum, and on the fact
that employer did not object to liability for a fee for work performed prior to the
tender of payment, we hold that the administrative law judge in this case erred in
denying counsel a fee for work performed prior to September 3, 1998.[2]   Kleiner, 16 BRBS at 299; Byrum,
14 BRBS at 836.  As claimant could not have accepted or rejected an offer he knew
nothing about, the logical date for terminating employer's liability for the fee
is the date on which claimant received the written tender.  Thus, we hold
that if an employer tenders payment of compensation and the claimant rejects the
offer and later fails to obtain additional compensation, the employer is not liable
for an attorney's fee for work performed after the date on which the claimant
received the tender offer.  Therefore, we reverse the administrative law judge's
decision that claimant is not entitled to any fee payable by employer, and we
remand the case for further consideration.  Specifically, the administrative law
judge must determine when claimant received the tender, and award claimant's
counsel a reasonable fee for work performed through that date, addressing
employer's remaining objections.
             Accordingly, the administrative law judge's Order Denying Attorney's Fees is
reversed, and the case is remanded for further consideration consistent with this

             SO ORDERED.

Administrative Appeals Judge

Administrative Appeals Judge

Administrative Appeals Judge

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1) 1As a result of this injury, claimant obtained permanent total disability benefits from July 17, 1992, and continuing, and medical benefits. Usher v. Jones Oregon Stevedoring Co., BRB Nos. 96-469/A (Nov. 20, 1996), aff'd mem., 152 F.3d 931 (9th Cir. July 7, 1998) (table). Back to Text
2)It is well-settled that any objections to a fee which are not raised before the administrative law judge are waived. See, e.g., Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42 (1995). The administrative law judge thus erred in raising for employer the argument that it is not liable for a pre-tender fee. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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