BRB No. 02-0346
JOSEPH K. SAMUEL )
)
Claimant-Petitioner )
)
5. )
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LAKE UNION DRY DOCK ) DATE ISSUED: 01/21/2003
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and )
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LIBERTY NORTHWEST )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Compensation Order Approval of Attorney Fee of Karen P.
Staats, District Director, United States Department of Labor.
William D. Hochberg and Nicole A. Hanousek, Edmonds, Washington, for
claimant.
Marshall L. Ferguson (Metz & Associates, P.S.), Seattle, Washington, for
employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Compensation Order Approval of Attorney Fee (Case No. 14-124792) of District Director Karen P. Staats 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
Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
This case is before the Board for the second time. To reiterate, on December 1, 1997, claimant filed a claim for
benefits, alleging that he sustained a binaural work-related hearing loss. The case was referred to the Office of
Administrative Law Judges on April 4, 2000. The parties subsequently entered into a settlement agreement under Section
8(i) of the Act, 33 U.S.C. '908(i), which was approved by the administrative law judge. Claimant obtained $3,200 as a
result of the settlement.
Thereafter, claimant=s counsel submitted a fee petition to the district director requesting a fee of $4,232.09 for 14.5
hours of attorney services at rates of $200, $140 and $125 per hour, and 16.5 hours of legal assistant services at rates of
$100, $90 and $70 per hour, plus costs of $317.59. Employer filed objections. Claimant=s counsel requested a fee for an
additional two hours of attorney services at an hourly rate of $145, and .5 hour at an hourly rate of $200, for defending the
fee petition.
The district director awarded claimant=s counsel an attorney=s fee totaling $2,651.50, plus costs of $317.59. The
district director reduced the hours for all attorney time by 50 percent, based on her finding that the case was neither novel
nor complex, and that the claim was not handled in an efficient manner. The district director also found that claimant
initially sought an award of $5,822 for his binaural hearing loss, but accepted a settlement of $3,200. Additionally, the
district director reduced the hourly rate of the lead attorney from $200 to $175, because the case was not complex. She
found, however, that the hourly rates charged for the services of the other attorneys and legal assistants were reasonable.
Finally, the district director reduced the request for defending the fee petition to one hour at $175 per hour. On claimant=s
motion for reconsideration, the district director affirmed her findings.
On claimant=s appeal, the Board held that the district director acted within her discretion by reducing the fee because
the case was not complex and because claimant settled for an amount less than that which he originally sought. Samuel
v. Lake Union Dry Dock, BRB No. 01-0360 (Dec. 19, 2001). The Board affirmed the district director=s reduction in
the hourly rate of lead counsel from $200 to $175, based on the lack of complexity of the case. Id., slip op. at
3. Moreover, the Board affirmed the district director=s finding that claimant=s counsel did not handle the claim efficiently,
as she is in the best position to make this determination. Id. The Board, however, remanded the case to the
district director for further findings regarding the reduction in the number of hours requested for attorney services.
Specifically, the Board stated:
Nonetheless, inefficiency in handling the claim does not necessarily require a finding that counsel=s fee
request should be reduced if the inefficiency did not result in Aoverbilling.@ If the fee petition reflects
necessary services that had to be performed, whenever they were performed, then counsel need not be
penalized for his inefficiency. If, however, due to counsel=s handling of the claim, services were performed
that would not have been necessary had the claim been more expeditiously handled, then the district director
may properly reduce those services she finds unnecessary.
Id.
On remand, the district director reduced the attorney=s fee award to $2,389, plus costs of $317.59, based on a finding
that the inefficiency of claimant=s counsel caused the performance of unnecessary and excessive legal services in that the
case took longer to settle than should have been required. Thus, the district director reduced many of the itemized services
and, in addition, disallowed a fee for all services performed between February 6, 1999 and January 24, 2000. On appeal,
claimant challenges the district director=s fee award as arbitrary, capricious, and an abuse of her discretion. Employer
responds, urging affirmance.
We agree with claimant that the district director abused her discretion in reducing the time counsel spent pursuing
a medical report from Dr. Chan. Order at 1-2. If the doctor refused to cooperate by preparing the necessary report to
accompany the audiogram, counsel can hardly be faulted for repeatedly seeking the doctor=s cooperation. Thus, although
this lack of cooperation resulted in the claim=s being handled inefficiently, it does not demonstrate that counsel performed
unnecessary services. To the contrary, counsel continued to pursue the report from Dr. Chan in order to best represent his
client. Thus, we modify the district director=s fee award to allow counsel an additional .7 hours of attorney time at $125
per hour, and 1.1 hours of legal assistant time at $70 per hour.
In addition, we cannot affirm the district director=s disallowance of time spent on February 15, 1999. Counsel=s
correspondence with carrier, dated February 15, 1999, requesting that carrier not contact claimant directly and stating that
he will not sign a blanket release for all of claimant=s medical conditions clearly was a reasonable and necessary service.
Thus, we modify the district director=s order to allow an additional .2 hours at $140 per hour.
We have reviewed counsel=s contentions regarding the remaining reductions made by the district director, and we
cannot say that counsel has established that the district director abused her discretion in reducing the requested fee. The
district director is in the best position to verify the posture of this case at various points in time, and she reasonably found
that the case was unnecessarily protracted. As the district director has provided a valid rationale for the reduction in the
attorney=s fee requested, and as counsel has not demonstrated reversible error in the district director=s remaining reductions,
the fee award is affirmed, as amended herein. See generally Finnegan v. Director, OWCP, 69 F.3d 1039, 29 BRBS
121(CRT) (9th Cir. 1995); see also Moyer v. Director, OWCP, 124 F.3d 1378, 31 BRBS 134(CRT) (10th Cir. 1997);
Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42 (1995); Maddon v. Western Asbestos Co., 23 BRBS 55
(1989).
Accordingly, the district director=s fee award is modified to allow an additional fee of $192.50 as stated herein,
and is otherwise affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
NOTE: This is an UNPUBLISHED LHCA Document.
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