Story v. Navy Exchange Service Center
| Decision Date | 06 August 1999 |
| Docket Number | 96-0533A,BRB 98-1458 |
| Court | Longshore Complaints Court of Appeals |
| Parties | FREDA STORY, Claimant-Respondent v. NAVY EXCHANGE SERVICE CENTER and GATES McDONALD & COMPANY, Employer/Carrier-Petitioners |
Appeals of the Decision and Order on Remand and Supplemental Order Awarding Fees and Costs of Anne Beytin Torkington Administrative Law Judge, United States Department of Labor.
John E. Houser, for claimant.
Michael S. Guillory, Antonio Le Mon and Gregory S. Unger (Michael S. Guillory, a Professional Law Corporation), for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Remand and Supplemental Order Awarding Fees and Costs (94-LHC-0979) of Administrative Law Judge Anne Beytin Torkington 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., as extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq. (the Act). 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 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, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
This is the second time this case is before the Board. To summarize the facts, claimant, who began working as a barber at employer's location at Mayport Naval Base in Florida in October 1991, [1] suffered an injury to her shoulder and neck while working for employer on January 21, 1992, when she reached down to pick up a pair of clippers. Claimant was diagnosed with cervical spondylosis and cervical radiculopathy, and, according to the opinion of Dr. Faillace, reached maximum medical improvement on June 22, 1992. Dr. Faillace returned claimant to work with the restriction to avoid physical activities which might injure her cervical spine and upper extremities. Claimant attempted to return to work for employer as a barber but was discharged. She also attempted to work as a barber for a different employer, but her complaints of pain prevented her from doing so. In December 1993, Dr. Fiore opined that claimant could perform only sedentary work. While Drs. Faillace and Fiore have recommended surgery, claimant has declined for fear of the risks involved.
At the hearing, the only issues in dispute were the calculation of claimant's average weekly wage and the nature and extent of claimant's disability. In his Decision and Order, Administrative Law Judge Nahum Litt initially determined that claimant's average weekly wage should be calculated pursuant to Section 10(c) of the Act, 33 U.S.C. §910(c). Judge Litt next found that the tips claimant received during her thirteen weeks of employment with employer were not to be included in the calculation of her average weekly wage; Judge Litt then found that claimant's average weekly wage was $386.40, based on her earnings during her thirteen weeks of employment with employer.[2] Lastly, Judge Litt found that employer established the availability of suitable alternate employment commencing on October 27, 1994, and awarded claimant temporary total disability compensation from January 1992 until October 1994, based on claimant's average weekly wage of $386.40, and permanent partial disability compensation for a weekly loss of $271.40, based on claimant's post-injury wage- earning capacity of $115 per week, thereafter.
On appeal, the Board vacated Judge Litt's determination that tips are not to be included in the calculation of claimant's average weekly wage. The Board reasoned that in determining whether tips are to be included in the calculation of claimant's average weekly wage under Section 2(13) of the Act, 33 U.S.C. §902(13)(1994), the first inquiry is whether the gratuities that claimant received during her employment with employer were contemplated as part of the "money rate" at which she was to be compensated by employer under the contract of hire. As Judge Litt did not address this question in his analysis, the Board remanded the case for reconsideration consistent with the Board's ruling. Holding that Judge Litt rationally determined that Section 10(a) of the Act, 33 U.S.C. §910(a), could not be applied to the instant case, and that the calculation of claimant's average weekly wage should be made pursuant to Section 10(c) of the Act, 33 U.S.C. §910(c), the Board instructed that, on remand, Section 10(c) should again be applied. Story v. Navy Exchange Service Center, 30 BRBS 225 (1997).
Subsequent to the issuance of the Board's Decision and Order, employer filed a timely motion for reconsideration of the Board's decision, 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a), and requested that the Board review new evidence. In an Order issued on February 13, 1997, the Board informed employer that it lacked authority to review new evidence, and that employer must request review of the new evidence with the administrative law judge below. On March 19, 1997, employer filed a motion to remand the case for modification proceedings before Judge Litt, and thereafter, the Board remanded the case to the Office of Administrative Law Judges for modification proceedings, subject to reinstatement of the case for consideration of employer's motion for reconsideration. Employer subsequently filed a motion for modification of Judge Litt's decision with the Office of Administrative Law Judges.
After the parties waived their right to a formal hearing, Administrative Law Judge Anne Beytin Torkington[3] (the administrative law judge) re-opened the record for the submission of additional evidence. In her Decision and Order on Remand, the administrative law judge found that tips were part of the "money rate" by which claimant was compensated under the contract for hire, pursuant to Section 2(13) of the Act. Next, the administrative law judge credited the amount of tips claimant recorded having received while working for employer, and, pursuant to Section 10(c) of the Act, found that claimant's average weekly wage was $549.20. Thus, the administrative law judge awarded claimant temporary total disability compensation from January 1992 until October 1994, based on claimant's average weekly wage of $549.20, and permanent partial disability compensation thereafter, for a loss of $434.20 in wage-earning capacity, the difference between claimant's average weekly wage and her post-injury wage-earning capacity of $115.
Claimant's counsel subsequently filed a fee petition for work performed before the administrative law judge, requesting $6, 612, representing 35.1 hours of legal services at hourly rates of $175 and $190, plus $23 in costs. Employer filed objections to counsel's fee request. In a Supplemental Order Awarding Fees and Costs, the administrative law judge reduced the number of hours sought to 34.9, and thereafter awarded claimant's counsel an attorney's fee of $6, 574, plus $23 for expenses.
In August 1998, employer formally requested that the Board consider the merits of its motion for reconsideration of the Board's initial decision in this matter. In an Order issued on August 26, 1998, the Board granted employer's request and reinstated for consideration employer's motion for reconsideration of the Board's January 9, 1997 decision, BRB No. 96-0533A. In its appeal of the administrative law judge's Decision and Order on Remand, employer challenges the administrative law judge's calculation of claimant's average weekly wage. Specifically, employer contends that the administrative law judge erred in finding that tips were contemplated by the parties as part of the "money rate" to be paid to claimant as part of the contract of hire. Employer further argues that in computing claimant's average weekly wage, the administrative law judge erred in crediting the work schedule sheet on which claimant listed the amount of tips she received. Employer lastly asserts that the administrative law judge failed to properly apply Section 10(c) in calculating claimant's average weekly wage. Claimant responds, urging affirmance of the administrative law judge's decision.
Employer has also appealed the administrative law judge's fee award. Specifically, employer contends that counsel's hourly rate should have been reduced to $125, and that the ultimate fee awarded was excessive, maintaining that the instant case did not involve complex issues. Employer further contends that the administrative law judge's fee award was premature, inasmuch as employer is appealing the administrative law judge's Decision and Order on Remand and seeking reconsideration of the Board's initial decision. Claimant responds, urging affirmance of the administrative law judge's fee award, with the exception that claimant now asserts that counsel should be entitled to an hourly rate of $235. Employer's appeals of the administrative law judge's Decision and Order on Remand and Supplemental Order Awarding Fees and Costs are contained in BRB No. 98-1458. In its August 26, 1998 Order, the Board consolidated employer's motion for reconsideration in BRB No. 96-0533A, with its appeal in BRB No. 98-1458 for purposes of decision. We first address the arguments raised by employer's motion for reconsideration of the Board's initial decision, BRB No. 96-0533A. On reconsideration employer contends that the Board erred in vacating Judge Litt's determination that claimant's tips were not to be included in the calculation of her average weekly wage....
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