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                                 BRB Nos. 01-0669
                                   and 01-0688

JAMES RIGGI                             )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   05/14/2002
                                             
                                        )
     v.                                 )
                                        )
CONSOLIDATION COAL COMPANY              )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeals of the Supplemental Decision and Order Granting Attorney's Fees
     of Gerald M. Tierney, Administrative Law Judge, United States Department
     of Labor, and the Attorney Fee Determinations of John J. McTaggart,
     District Director, United States Department of Labor.

     Stephen P. Moschetta (Joseph P. Moschetta and Associates), Washington,
     Pennsylvania, for claimant.

     Michael W. Zimecki (Strassburger McKenna Gutnick & Potter), Pittsburgh,
     Pennsylvania, for self-insured employer.

     Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
     Administrative Appeals Judges. 


     PER CURIAM:    

     Employer appeals the Supplemental Decision and Order Granting Attorney's Fees
(99-LHC-2740; 99-LHC-2741) of Administrative Law Judge Gerald M. Tierney and the
Attorney Fee Determinations (03-26943) of District Director John J. McTaggart
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. See, e.g., Muscella v.
Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
     
     Claimant, a dockman, suffered a series of injuries during the course of his
employment with employer.  Specifically, on April 30, 1997, claimant injured his
back, groin and right lower extremity and was unable to work from May 1 to May 16,
1997.  He returned to work but reinjured his back within a month and was unable to
work from June 16 to July 16, 1997.  An exacerbation of symptoms following his
return to work forced claimant to remain off work yet again from July 24 to
September 2, 1997.  On December 13, 1997, claimant suffered a third injury at work
which resulted in his leaving work permanently.  Employer voluntarily paid claimant
temporary total disability compensation during the relevant periods. 33 U.S.C.
§908(b).
     
     Before the administrative law judge, the parties contested the date of maximum
medical improvement, and employer sought relief under Section 8(f) of the Act, 33
U.S.C. §908(f).   In his Decision and Order, the administrative law judge
found the date of maximum medical improvement to be August 17, 1999, and he awarded
claimant compensation for permanent total disability from that date forward. 
Additionally, the administrative law judge found employer entitled to Section 8(f)
relief based upon the combined effects of claimant's latest injuries and the
residuals from his first work accident which occurred August 2, 1994.  33 U.S.C.
§908(a), (f).
     
     Subsequently, claimant's attorney filed fee petitions before both the district
director and the administrative law judge for services rendered before those two
officials.   Before the district director, claimant sought an attorney's fee of
$3,735, representing 12.3 hours of services rendered at $200 per hour, and 6.5
hours of services rendered at $150 per hour.  Before the administrative law judge,
claimant sought an attorney's fee of $7,827.45, representing 23.95 hours of
services rendered at the rate of $200 per hour for lead counsel, and 18.8 hours of
services rendered at $150 per hour for junior counsel, plus expenses of $217.45. 
Employer filed objections to both fee petitions, arguing that it was not liable for
counsel's  fee since it had voluntarily paid compensation in this case and that
both the hourly rates and hours billed on specific dates were excessive.  
     
     In his Supplemental Decision and Order, the administrative law judge initially
determined that, as claimant was successful in obtaining additional compensation,
employer is liable for his counsel's fee pursuant to Section 28(b) of the Act, 33
U.S.C. §928(b).  The administrative law judge then awarded, without
discussion, the requested fee plus an additional $1,385, representing .4 hours at
$200 per hour and 8.7 hours at $150 per hour in services rendered by counsel in
responding to employer's objections to the fee petition.  Thereafter, also without
addressing employer's objections, the district director awarded the fee requested
by counsel for work performed at the district director level. 
     
     Employer now appeals, challenging the administrative law judge's and district
director's fee awards.[1]   Claimant responds,
urging affirmance of both awards.
     
     It is well-established that the official awarding a fee has broad discretion
in his award of an attorney's fee and that the party challenging the reasonableness
of an attorney's fee bears the burden of showing that the award is contrary to law
or the determinations are arbitrary, capricious, or an abuse of his discretion.
See generally Forlong v. American Security & Trust Co., 21 BRBS 155 (1988). 
In this regard, the official awarding a fee must review the fee petition and
determine whether the fee requested is reasonably commensurate with the necessary
work done, taking into account the quality of the representation, the complexity
of the legal issues involved and the amount of benefits awarded.  20 C.F.R.
§702.132; Bazor v. Boomtown Belle Casino, 35 BRBS 121 (2001).
     
     On appeal, employer initially asserts that it is not liable for claimant's
attorney's fees because employer's "voluntary payment of a few outstanding
[medical] bills" does not constitute success achieved by counsel.[2]   See Brief at 5-6; 33 U.S.C. §928(b). 
 In making his award of an attorney's fee, the administrative law judge thoroughly
addressed employer's argument that it is not liable for a fee.[3]   Based upon claimant's reply to this objection,
the administrative law judge found that additional benefits, specifically the
payment of the medical services of Dr. Zubechevich, were obtained and paid as a
result of counsel's efforts and that, therefore, there had been a successful
prosecution entitling claimant to a fee award payable by employer pursuant to 33
U.S.C. §928(b).  Moreover, as the administrative law judge found, there were
several issues in controversy until shortly before the hearing was to be held,
other than employer's entitlement to Section 8(f) relief, including timely notice,
extent of disability and claimant's average weekly wage.[4]   Employer cannot escape liability for claimant's attorney's fees if
it has only agreed to a resolution of issues at the last moment.  See Toscano
v. Sun Ship, Inc., 24 BRBS 207 (1991); Kleiner v. Todd Shipyards Corp.,
16 BRBS 297 (1984).  Thus, as employer's entitlement to Section 8(f) relief was not
the only issue in contention, claimant's counsel is entitled to a fee payable by
employer.  See Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991
F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993);  Phelps v. Newport News Shipbuilding
& Dry Dock Co., 16 BRBS 325 (1984).  Accordingly, we affirm the administrative
law judge's and district director's findings that employer is liable for claimant's
attorney's fee pursuant to Section 28 of the Act. 
     
     With regard to the amount of the fee awards, however, we must remand this case
because the administrative law judge and district director summarily awarded all
hours and the hourly  rate sought by claimant's counsel without discussion of the
regulatory criteria and employer's specific objections.  Before both the district
director and the administrative law judge, employer raised objections to the hourly
rate as well as to specific hours requested by claimant's counsel.  Employer also
contended that certain specific charges should not be allowed as they pertained to
services addressing employer's request for relief under Section 8(f) of the Act. 
Finally, employer argued that the hourly rates were excessive and neither
reasonable nor customary within the geographic area in which they arose.  
     
     In awarding the entire fee requested by claimant's counsel in this case, the
administrative law judge did not discuss the objections raised by employer, but
summarily awarded counsel's full requested fee.  The district director similarly
awarded counsel his entire requested fee without addressing the specific objections
raised by employer.[5]  As neither the
administrative law judge nor the district director discussed employer's objections
to the fee petitions submitted by claimant's counsel, we must remand this case for
them to do so.  On remand, the administrative law judge and the district director
must consider claimant's counsel's fee petitions and employer's objections; while
their fee orders are not required to discuss in detail each individual entry and
objection, they must provide an analysis which comports with the regulatory
criteria, 20 C.F.R. §702.132, and  an adequate rationale for their respective
determinations regarding the reasonable hours and hourly rate. See Steevens v.
Umpqua River Navigation Co., 35 BRBS 129 (2001).
     Accordingly, the administrative law judge's Supplemental Decision and Order
Granting Attorney's Fees and the district director's Attorney Fee Determination are
affirmed insofar as they hold employer liable for claimant's counsel's fee.  The
findings regarding the hourly rate and compensable hours are vacated, and the fee
awards are remanded for further consideration consistent with this opinion.
     
     SO ORDERED.

                         

                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1)By Order dated July 20, 2001, employer's appeal of the administrative law judge's Supplemental Decision and Order, BRB No. 01-0669, and its appeal of the district director's Attorney Fee Determination, BRB No. 01-0688, were consolidated. Back to Text
2)Under Section 28(b), in general, 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 only if the claimant succeeds in obtaining greater compensation than that agreed to by the employer. 33 U.S.C. §928(b). Back to Text
3)In his subsequent award of a fee to claimant's counsel, the district director, without discussion, also found employer liable for claimant's counsel's fee. Back to Text
4)Thus, the only issue was not, as employer alleges, its entitlement to relief under Section 8(f). In addition to the stipulations entered shortly before trial, the date of maximum medical improvement remained in controversy at the hearing for the administrative law judge to resolve. See Decision and Order-Awarding Benefits and Granting Section 8(f) Relief. Back to Text
5)The district director's statement that he "specifically adapts [sic] herein the same conclusions regarding the hourly rates charged by claimant's counsel for practice in this program" is specious given the fact that the administrative law judge awarded the rates sought by claimant's counsel without discussion. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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