Nelson v. Stevedoring Services of America
| Decision Date | 28 June 1995 |
| Docket Number | 94-0454,93-1407,93-1407A,BRB 88-3695,93-2149,94-2279 |
| Parties | KENNETH D. NELSON, Claimant-Respondent v. STEVEDORING SERVICES OF AMERICA and MANHATTAN RE-INSURANCE COMPANY, Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest KENNETH D. NELSON, Claimant-Petitioner Cross-Respondent v. STEVEDORING SERVICES OF AMERICA and EAGLE PACIFIC INSURANCE COMPANY (Successor to MANHATTAN RE-INSURANCE COMPANY), Employer/Carrier-Respondents Cross-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest KENNETH D. NELSON, Claimant-Petitioner v. STEVEDORING SERVICES OF AMERICA and EAGLE PACIFIC INSURANCE COMPANY, Employer/Carrier-Respondents KENNETH D. NELSON, Claimant-Petitioner v. STEVEDORING SERVICES OF AMERICA and MANHATTAN RE-INSURANCE COMPANY, Employer/Carrier-Respondents KENNETH D. NELSON, Claimant-Petitioner v. STEVEDORING SERVICES OF AMERICA and EAGLE PACIFIC INSURANCE COMPANY, Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order, Decision and Order On Reconsideration, Supplemental Decision and Order - Awarding Attorney's Fees, and Order Awarding Additional Attorney Fees of Ellin M. O'Shea, Administrative Law Judge, United States Department of Labor, and the Compensation Orders - Approval of Attorney Fee Applications of Karen P. Goodwin District Director, United States Department of Labor.
Charles Robinowitz, Portland, Oregon, for claimant.
John Dudrey (Williams, Fredrickson & Stark, P.C.), Portland Oregon, for employer/carriers.
Before: SMITH, BROWN, and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the August 31, 1988, Decision and Order (87-LHC-1217 88-LHC-0001) of Administrative law Judge Ellin M. O'Shea 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). BRB No. 88-3695. In addition, claimant appeals and employer cross-appeals Judge O'Shea's Supplemental Decision and Order - Awarding Attorney's Fees (87-LHC-1217, 88-LHC-0001, 90-LHC-1397) filed on March 22, 1993. BRB Nos. 93-1407 and 93-1407A. Claimant also appeals Judge O'Shea's October 27, 1993, Order Awarding Additional Attorney Fees (87-LHC-1217, 88-LHC-0001), BRB No. 94-0454, and the July 2, 1993 and February 9, 1994, Compensation Orders -Approval of Attorney Fee Applications (14-79399) of District Director Karen P. Goodwin. BRB Nos. 93-2149 and 94-2279. We must affirm the findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3). The amount of an attorney's fee award is discretionary and may only be set aside if 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).
On August 9, 1983, claimant, a longshoreman, slipped while working for employer and fell on his elbows, injuring his back and shoulders. Subsequently, on July 7, 1984, claimant was standing on the deck of a ship leaning over a hatch coaming, when he was thrown against the coaming and onto the deck and hatch lids, sustaining injury to his right knee and both shoulders. Although no compensation was voluntarily paid for the July 7, 1984, injury, employer voluntarily paid temporary total disability compensation for the August 9 1983, injury from October 12, 1983 to January 6, 1984, at a rate of $372.28 per week, based on an average weekly wage of $558.42. Claimant sought temporary total, temporary partial, and permanent partial disability compensation under the Act for these injuries, and the two claims were consolidated below.
In her August 31, 1988, Decision and Order, the administrative law judge found that claimant's August 9, 1983, shoulder injury was aggravated by the subsequent July 7, 1984, work accident and she awarded claimant temporary total disability compensation for the periods of July 31, 1984 to November 6, 1984, January 22, 1985 to January 15, 1986, and February 2, 1986 to October 13, 1986. 33 U.S.C. §908(b). In addition, claimant was awarded temporary partial disability compensation from November 7, 1984 to January 22, 1985, and from January 15, 1986 to February 2, 1986, 33 U.S.C. §908(e), and permanent partial disability under Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), commencing October 13, 1986. The administrative law judge also awarded claimant medical benefits under 33 U.S.C. §907 and remanded the case for the district director to consider the employer's entitlement to Section 8(f), 33 U.S.C. §908(f), relief. Finally, the administrative law judge awarded claimant's attorney $5, 501.25 in legal fees and $502.23 in costs for services rendered before the Office of Administrative Law Judges.
On October 26, 1988, employer filed a Notice of Appeal of the administrative law judge's August 31, 1988, Decision and Order and Decision and Order on Reconsideration filed September 26, 1988, and claimant filed a cross-appeal. Both appeals were acknowledged by the Board on December 27, 1988, and assigned Board docket numbers, BRB Nos. 88-3695 and 88-3695A. Thereafter, employer requested that these appeals be dismissed without prejudice inasmuch as claimant had requested modification under 33 U.S.C. §922 before the administrative law judge. By Order dated June 10, 1991, the Board dismissed the appeals, subject to reinstatement, and remanded the case to the Office of Administrative Law Judges.
In a Decision and Order on Modification issued on May 28, 1992, the administrative law judge awarded claimant permanent total disability compensation commencing September 7, 1989 and scheduled permanent partial disability benefits for his July 7, 1984, right knee injury from January 8, 1989 until September 7, 1989. 33 U.S.C. §908(c)(2), (19). The administrative law judge also denied claimant's claim for medical benefits based on the aggravation of his pre-existing diabetes by the July 7, 1984, work injury, and determined that employer was entitled to Section 8(f) relief.
On July 7, 1992, employer requested reinstatement of its appeal in BRB No. 88-3695. By Order dated March 23, 1993, the Board reinstated this appeal and noted that the case was fully briefed. At this time, the Board also granted employer's motion to consolidate its appeal in BRB No. 88-3695 with claimant's appeal of the district director's denial of a 20 percent assessment under Section 14(f), 33 U.S.C. §914(f), in BRB No. 90-2046.
Meanwhile, on June 23, 1992, claimant's counsel filed a fee petition for work performed before the administrative law judge between March 26, 1990 and June 23, 1992, in which he requested $14, 975 for 94 hours of attorney services at $150 per hour, 17.5 hours of legal assistant's services at $50 per hour, plus $1, 656.13 in costs. Employer submitted objections. Claimant's counsel responded to employer's objections and, in addition, submitted a Supplemental Affidavit requesting an additional $525 fee for 3.5 hours of services at an hourly rate of $150 for time spent in defending the fee petition. Employer thereafter submitted a response to the Supplemental Affidavit.
In a Supplemental Decision and Order - Awarding Attorney's Fees filed on March 22, 1993, the administrative law judge, addressing employer's objections, awarded the $150 hourly rate requested, but reduced the hours claimed by 14.25 attorney hours and 2 legal assistant hours, and the costs by $586. Accordingly, she awarded counsel a fee of $13, 112.50, representing 82.25 hours of attorney services at $150 per hour ($11, 962.50), 15.5 hours of legal assistant services at $50 per hour ($775), plus $1, 010.13 in costs.
On August 23, 1993, claimant's counsel submitted a fee application to the administrative law judge in which he requested $577.50 for 3.5 hours at $165 per hour for various services performed by counsel in January and February 1988. Employer responded that claimant's attorney should be awarded a fee based on an hourly rate of $125, the rate charged by counsel at the time the services were performed.
In an Order Awarding Additional Attorney Fees filed on October 27, 1993, the administrative law judge, finding employer's hourly rate argument persuasive, reduced the $165 hourly rate sought to $125 but otherwise approved the fee as requested. Accordingly, she awarded claimant's counsel $437.50, representing 3.5 hours at $125 per hour.
Claimant's counsel also submitted a fee application for services rendered before the district director between November 2, 1986 and June 20, 1992. Counsel requested $3, 525 for 21.75 hours of attorney services at $150 per hour, 5.25 hours of legal assistant services at $50 per hour, plus $120.25 in costs. In addition, counsel requested an additional fee of $112.50 for .75 hours at $150 per hour for time spent in defending his fee application. Employer objected, contending that the $150 hourly rate sought was excessive and that the hourly rate awarded should not exceed $135, counsel's historical hourly rate. Employer also challenged the compensability of several itemized entries claimed. In a Compensation Order issued on July 2, 1993, the district director awarded counsel the .75 hours he claimed for defending his fee petition at the $150 hourly rate requested, disallowed the one hour claimed for preparing the fee petition, and allowed only an hourly rate of $135 for the remaining itemized entries. In all other respects, the district director approved the fee as requested, awarding counsel $3, 296.50, representing 20.75 hours of attorney services at $135 per hour, .75 hours of attorney services at $150 per hour, 5.25 hours of legal assistant services at $50 per hour, and $120.25 in costs.
Claimant's counsel also submitted a fee petition to the district director for services performed from August 30, 1984 through February 23, 1987, in which he requested $3, 913.75 for 30.75 hours of attorney services at $125 per hour and 1.75 hours of legal assistant services at $40 per hour, plus $867.50 in costs.[1] Thereafter, counsel filed two supplemental...
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