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                                    BRB No. 01-0670

RUDOLPH KAZIMER                         )
          Claimant-Respondent           )
     v.                                 )
CONSOLIDATION COAL COMPANY              )    DATE ISSUED:   05/06/2002
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order Granting Attorney's Fees
     of  Gerald M. Tierney, Administrative Law Judge, United States
     Department of Labor.

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

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

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


     Employer appeals the Supplemental Decision and Order Granting Attorney's Fees
(97-LHC-1483) of Administrative Law Judge Gerald M. Tierney 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, on October 25, 1994, injured his neck and back when he fell 12 feet from one coal
barge into another coal barge while working for employer as a dockman/riverman.  In his initial Decision and
Order, the administrative law judge awarded claimant permanent total disability benefits from March 1997 and
continuing as well as medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907, including the
chiropractic care provided by Dr. Wilhelm.  On appeal, the Board affirmed the administrative law judge's award
of compensation but vacated the administrative law judge's award of chiropractic expenses and remanded the case for
the administrative law judge to determine if these expenses were compensable in accordance with Section 702.404 of
the Act's implementing regulations, 20 C.F.R. §702.404. Kazimer v. Consolidation Coal Co., BRB
No. 99-0155 (Sept. 28, 1999) (unpub.).

     In his Decision and Order on Remand, the administrative law judge determined that claimant's chiropractic
expenses were compensable by employer.  Clamant's counsel subsequently filed a fee petition with the administrative
law judge, seeking a fee of $3,185,  representing 3.7 hours of services rendered by lead counsel at an hourly rate of
$200, and 16.3 hours of services rendered by a junior attorney  at an hourly rate of $150.  Employer filed objections
to the proposed fee, contending that hourly rates of $175 and $125 respectively were more appropriate for the Western
Pennsylvania area wherein this case arose.  In his Supplemental Decision and Order Awarding Attorney's Fees, the
administrative law judge rejected employer's contentions, noting the nature of the issues involved, the degree of skill
demonstrated and the amount of time and work involved as well as other relevant factors, and he accordingly awarded
the fee requested by counsel in its entirety.

     Employer now appeals, arguing that the hourly rates awarded by the administrative law judge are neither
reasonable nor customary in the geographic area in which this case arises.  Claimant responds, urging affirmance.

     It is well-established that the administrative law judge has broad discretion in his award of an attorney's fee and
the party challenging the reasonableness of an attorney's fee award bears the burden of showing that the award is
contrary to law or was arbitrary and capricious, or an abuse of discretion. See generally Forlong v. American
Security & Trust Co., 21 BRBS 155 (1988).  It is the administrative law judge's responsibility to review the fee
petition and determine whether the fee requested is reasonably commensurate with the necessary work done.  Bazor
v. Boomtown Belle Casino, 35 BRBS 121 (2001).

     In the present case, the administrative law judge specifically addressed employer's concerns regarding the hourly
rates sought by claimant's counsel; in this regard, the administrative law judge found the requested rates to be consistent
with the experience of the firm, the complexity of this particular case, including the benefits awarded, and rates in the
general geographic area.  Pursuant to these findings, the administrative law judge concluded that the requested rates are
reasonably commensurate with the work done and necessary for the successful prosecution of the instant claim.  In
support of its contention that the hourly rates awarded should be reduced, employer has presented excerpts from
The 2000 Survey of Law Firm Economics which determined that the median hourly rate for firms the size
of claimant's attorney's is $175 and $125 respectively for senior and junior attorneys.  This document, however,
provides an insufficient basis for overturning the fee as the administrative law judge properly determined the appropriate
rates after consideration of the regulatory criteria, 20 C.F.R. §702.132. See Ferguson v. Southern States
Cooperative, 27 BRBS 16 (1993); 20 C.F.R. §702.132.  Moreover, employer's mere assertion that the
awarded hourly rates do not conform to the reasonable and customary charges in the area where this claim arose does
not satisfy its burden of proving that the awarded hourly rates should be overturned.  See generally Mijangos v.
Avondale Shipyards, Inc., 19 BRBS 15 (1986).  Accordingly, inasmuch as the administrative law judge considered
the regulatory factors of Section 702.132 in determining the appropriate rates, and employer has not met its burden of
showing that his findings are unreasonable, the hourly rates awarded to counsel by the administrative law judge are
affirmed.  See Parks v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998), aff'd
mem. 202 F.3d 259 (4th Cir. 1999)(table).

     Accordingly the administrative law judge's Supplemental Decision and Order Granting Attorney's Fees is


                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         BETTY JEAN HALL
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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