Esther Krause (Widow of Herbert Krause) v. Bethlehem Steel Corporation (Board decision, December 30, 1992)

Read the official release (dol.gov)

BRB interlocutory order. The Board vacated the death benefits and attorney fee orders and sent both matters back for reconsideration. The award and fee issues remained unresolved by this order. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under § 802.407.

Plain-English summary

Herbert Krause developed mesothelioma after asbestos exposure while working as a sheet metal worker for Bethlehem Steel, and his widow Esther sought death benefits. The dispute concerned settlements with other companies, the employer's offsets, and attorney fees. The Board held that the judge had used an outdated test to decide when Esther became a person entitled to compensation and sent the Section 33(g) issue back in light of a later Supreme Court ruling. If benefits remain available, the judge must revisit how the settlements were apportioned because the employer bears the burden of proving its offset. The Board also vacated a district director's attorney fee award because fee entitlement depends on the result of that reconsideration.

Decision snapshot

• Authority: Third-party recovery and settlement rules under 33 U.S.C. § 933(f) and (g); attorney fees under § 928(b).
• Outcome: Death benefit and district director fee orders vacated; case remanded.
• Key point: The settlement bar and the employer's share of third-party recovery required reconsideration under intervening law.

Full text (DOL BRB public release)

BRB Nos. 90-2004 and 89-3165

ESTHER KRAUSE
)
(Widow of HERBERT KRAUSE) )
)
Claimant-Respondent )
)
v. )
)
BETHLEHEM STEEL CORPORATION )
DATE ISSUED:
CORPORATION
)
)
Self-Insured )
Employer-Petitioner )
DECISION AND ORDER

Appeal of the Decision and Order Awarding Benefits of R. S.
Heyer, Administrative Law Judge, and the Attorney Fee Award of John Sharp, District Director, United States Department of Labor.

Victoria Edises (Kazan & McClain), Oakland, California, for claimant.

Bill Parrish, San Francisco, California, for self-insured employer.

Before: SMITH, DOLDER and McGRANERY, Administrative Appeals Judges.

PER CURIAM:

Employer appeals the Decision and Order Awarding Benefits

(88-LHC-3232) of Administrative Law Judge R. H. Heyer and of the

attorney fee award of District Director John Sharp 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). We must affirm the findings of fact and conclusions of law

of the administrative law judge if they 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).

While working for employer as a sheet metal worker, decedent

was exposed to asbestos, and developed work-related mesothelioma

which resulted in his death on February 21, 1987. Decedent filed

a claim for compensation on August 21, 1986, and claimant filed a

claim for death benefits on April 1, 1987. Employer paid decedent

permanent partial disability compensation from January 7, 1987

through February 25, 1987, and paid claimant death benefits from

May 15, 1987 through June 24, 1987.
The administrative law judge

found that decedent and claimant entered into a settlement on

February 2, 1987 with Asbestos Claims Facility for $300,000 based

on correspondence dated February 10, 1987 from employer's counsel

to claimant's counsel at the time, Mark Wasacz, stating that the

case "was settled" with Asbestos Claims Facility on February 2,

1987.1 The administrative law judge, in addition, found that

decedent and claimant entered into settlements with Garlock

Corporation, Uniroyal, and Nicolet Corporation prior to his death

but these settlements did not need to be considered separately

from the Asbestos Claims Facility settlement because they

introduced no additional considerations and, in any event, one

settlement suffices under Section 33(g)(1), 33 U.S.C. §933(g)(1).
1
In that letter, Mr. Wasacz also states that "As agreed between our offices, you will generate the closing documents. Upon completion of the necessary signatures and notaries, please forward an original Compromise and Release and Request for Dismissal to our office... Upon receipt of the properly executed documents, we will forward the settlement draft to your office." CX 21, p. 182.

2
The administrative law judge found that decedent's claim was

barred by Section 33(g)(1) because decedent had settled for an

amount greater than he was entitled to receive under the Act but

was not barred by Section 33(g)(2), 33 U.S.C. §933(g)(2), because

employer received adequate notice of the third party settlements

on February 19, 1987.

The administrative law judge found that claimant entered into

additional settlements with Raymark, W.R. Grace, Babcock and

Wilcox and apparently Combustion Engineering, after decedent's

death but prior to April 1987, the date she filed her death

benefits claim, yielding a net third party recovery of $212,156.23

after reduction of attorney's fees and costs. Claimant also

received a net recovery of $29,750 in a California state workers'

compensation settlement.
With regard to the death benefit claim,

the administrative law judge further determined that although

claimant did not obtain employer's prior written approval before

entering into the third party settlements, her right to benefits

under the Act was not barred by Section 33(g)(1) as she did not

become a person entitled to compensation until May 15, 1987, when

employer initiated payment of death benefits after the settlements

had been completed. The administrative law judge further

determined that claimant's right to compensation was not barred

pursuant to Section 33(g)(2) because employer received adequate

notice of the settlements on February 19, 1987,2 although the full 2
In the February 19, 1987, letter addressed to employer's counsel, claimant's counsel, Gabriel Beccar-Varela, specifically

3 details of the settlement agreements were not provided until June

1987. An "Addendum" was attached to each settlement which

stated that 75 percent of the settlement proceeds are to go to

decedent, 10 percent to claimant, and 15 percent to their three

adult children. Although the administrative law judge accepted

the addendum apportionment statements as generally credible, he

modified the amount to be distributed to claimant to 15 percent,

and the amount to the children to 10 percent, finding it more

plausible that the settlement values would equate the children

with the widow in the aggregate rather than individually. The

administrative law judge concluded that although claimant was

theoretically entitled to decedent's disability compensation and

medical care pursuant to 33 U.S.C. §§907, 908, the 75 percent

offset under Section 33(f), 33 U.S.C. §933(f), of decedent's

interest in the net third party recovery and the offset for his

disability and medical benefit interest in the state settlement

under Section 33(f) exceeded and extinguished those entitlements.

The administrative law judge, however, awarded claimant death

benefits pursuant to Section 9, 33 U.S.C. §909, subject to a

Section 33(f) offset for her 15 percent interest in the net third

party recovery and a Section 3(e) offset for her $29,750 interest

in the state compensation claim settlement.3

states that he will distribute the third party settlement without employer's approval, noting that claimant's claim had not accrued and that she is not a person entitled to compensation. EX 8. He also requested that employer stop making payments.
3
In a Supplemental Decision and Order Awarding Attorney Fee,

4
 On appeal (BRB No. 89-3165), employer argues that claimant's

right to benefits was barred pursuant to Sections 33(g)(1) and

33(g)(2) and that the administrative law judge erred in limiting

the Section 33(f) credit to 15 percent of the net third party

recovery absent credible evidence of apportionment. Employer also

appeals (BRB No. 90-2004) the district director's award of

attorney's fee. Claimant responds, urging affirmance. The two

claims were consolidated on appeal.4

SECTION 33(g)
Section 33(g)(1) and (g)(2) provide in pertinent part:

(g)(1) If the person entitled to compen-sation

(or the person's representative) enters into a
settlement with a third person referred to in
subsection (a) for an amount less that the
compensation to which the person (or the

         person's      representative)      would     be   entitled

under this Act, the employer shall be liable

         for   compensation       as     determined   under      sub-

section (f) only if written approval of the
settlement is obtained from the employer and
the employer's carrier, before the settlement
is executed, and by the person entitled to the administrative law judge awarded $7,381.75 in attorney's fee and $178.50 in costs.
4
The administrative law judge's finding regarding decedent's right to compensation is not challenged on appeal.

5 compensation (or the person' representative).

2) If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this Act shall be terminated, regardless of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits under this Act.

Section 933(g)(Supp. V 1987).

On appeal, employer contends that the administrative law

judge erred in determining that all the settlements were obtained

on February 2, 1987 prior to decedent's death. Employer contends

that the parties merely entered tentative agreements on February

2, 1987, which were later confirmed in writing after decedent's

death when claimant signed them.
Employer contends that inasmuch

as no meeting of the minds occurred until the settlements were

actually signed after decedent's death,
the administrative law

judge erred in finding that claimant was not a person entitled to

compensation at the time of the settlements, and that accordingly

her death benefit claim was barred pursuant to 33(g)(1). In the

alternative, employer contends that the administrative law judge

erred in concluding that adequate notice had been provided under

Section 33(g)(2) on February 19, 1987, arguing that sufficient

notice was not actually provided until June 2, 1987.

Initially, we note that contrary to employer's assertions,

the administrative law judge did not find that all of the

6
settlements occurred on February 2, 1987. Rather, the

administrative law judge determined that some of the settlements

occurred at that time but that others occurred after decedent

died, but prior to the filing of claimant's April 1, 1987 death

benefits claim. The administrative law judge further determined

that in any event, all of the settlements had been executed prior

to May 15, 1987, when employer initiated payment of compensation

benefits thereby rendering claimant a person entitled to

compensation. Employer correctly asserts, however, that none of

the settlements were actually executed until after decedent's

death inasmuch as all of the settlement agreements were signed

between March 4, 1987 and May 13, 1987.

In order to preserve his right to compensation, a claimant

must obtain written approval of a third-party settlement if at the

time of settlement, the claimant is "entitled to compensation."

33 U.S.C. §933(g)(1). In determining that claimant became a

person entitled to compensation on May 15, 1987, when employer had

initiated payments to claimant, the administrative law judge

applied the law in effect at the time which was that a "person

entitled to compensation" must either be receiving compensation

from employer or entitled to receive it pursuant to an

adjudication under the Act. See e.g., Dorsey v. Cooper

Stevedoring Co., 18 BRBS 25 (1986), appeal dismissed sub nom.

Cooper Stevedoring Co. v. Director, OWCP, 826 F.2d 1011 (11th Cir.

1987). The Supreme Court has since held that a claimant becomes a

7 person entitled to compensation within the meaning of Section

33(g)(1) at the moment his right to recovery under the Act vests.

Estate of Cowart v. Nicklos Drilling Co., U.S. , 112 S.Ct.

2509 (1992) aff'g Nicklos Drilling Co. v. Cowart, 927 F.2d 828, 24

BRBS 93 (CRT)(5th Cir. 1991), (en banc) aff'g on reh'g. 907 F.2d

1552, 24 BRBS 1 (CRT)(5th Cir. 1990), rev'g 23 BRBS 42 (1982).

The Court held that a person is "entitled to benefits" regardless

of whether the right has been acknowledged or adjudicated.

Cowart, supra. Thus, under Cowart, claimant became a person

"entitled to compensation" at the time of decedent's death.

Because, however, under pre-Cowart law, claimant was not a person

"entitled to compensation" at the time she entered into the

settlements and therefore had no duty to seek employer's written

approval prior to entering into them, and the parties never

briefed or presented evidence on the issue, the case must be

remanded for the administrative law judge to reconsider the

applicability of Section 33(g)(1) in light of Cowart, supra.

Moreover, because it is not clear which evidence the

administrative law judge relied on in determining whether claimant

settled for an amount greater than employer's liability under the

Act, on remand, the administrative law judge should indicate which

evidence he relied on in making this determination.

SECTION 33(g)(2)

If on remand the Court determines that Section 33(g)(1) does

not bar claimant's claim, the administrative law judge must

8
determine whether claimant falls within the Section 33(g)(2)

notification exception. In Cowart, the Court indicated that an

employee is required to provide notification to his employer but

is not required to obtain prior written approval pursuant to

Section 33(g)(2) in two instances: (1)
Where the employee obtains

a judgment, rather than a settlement against a third party and;

(2) Where the employee settles for an amount greater than or equal

to the employer's total liability.
Cowart, supra.

The administrative law judge determined that the February 19,

1987 letter, from Mr. Gabriel Beccar-Varela to employer stating

that it would not seek employer's approval for distribution of the

third party settlement and informing employer to discontinue
5
payments provided adequate notice.
The administrative law judge

found, however, that it was not essential that the February 19,

1987, letter comply with all the requirements of 20 C.F.R.

§702.811 such as those requiring that notice be given to the

deputy commissioner and that certain details about the settlements

be provided on the rationale that, to the extent these
5
The administrative law judge found the February 19, 1987, letter met the requirements of Section 33(g)(2) in that it was sufficient to prevent employer from unwittingly paying compensation under the Act beyond what it owed because the letter informed employer of "the fact of a major settlement" and claimant advised employer, for that reason, not to make further payments. Decision and Order at 11.

The administrative law judge noted that employer nonetheless continued making payments not because it was unwittingly led to do so but because it "deliberately chose to do so as to try to manipulate the posture of the case to take advantage of its unreasonable interpretation of the law." Id.

9 requirements exceeded those contained in Section 33(g)(2), the

regulation was invalid.6

On appeal, employer contends that Section 33(g)(2) bars

claimant's recovery because the administrative law judge erred in

finding that the February 19, 1987, letter constituted adequate

notice. Employer contends, apparently as it did below, that the

February 19, 1987, letter does not comply with 20 C.F.R. §702.281

in that there is no evidence that the deputy commissioner was

notified and the letter did not specify the terms, conditions or

amounts of the settlements nor with whom the settlements had been

6
Section 20 C.F.R. §702.281(a) provides in pertinent part:

Every person claiming benefits under this Act (or the representative) shall promptly notify the employer and the district director when:

1) A claim is made that someone other than the employer or person or persons in its employ, is liable in damages to the claimant because of the injury or death and identify such party by name and address.

2) Legal action is instituted by the claimant ... against some person or party other than the employer...on the ground that such other person is liable in damages to the claimant on account of the compensable injury and/or death; specify the amount of damages claimant and identify the person or party by name and address.

3) Any settlement, compromise or any adjudication of such claim has been effected and report the terms, conditions and amounts of such resolution of the claim.

Section (a)(4) states that when a claimant settles for an amount less than the compensation to which he or she would be entitled under the Act without obtaining employer's prior written approval, he or she forfeits their right to compensation from employer regardless of whether employer has made payments to claimant or acknowledged claimant's entitlement to benefits.

10
negotiated. Employer contends that adequate notice was not

provided until June 2, 1987, when it received copies of the

settlements, and that this notice was untimely because it was

given after employer began making compensation payments to

claimant.

In Mobley v. Bethlehem Steel Corp., 20 BRBS 239 (1988),

aff'd, 920 F.2d 558, 24 BRBS 49 (CRT)(9th Cir. 1990), the Board

held that a claimant satisfies the requirements of Section

33(g)(2) if he provides notice to his employer of a third-party

settlement prior to the time benefits are awarded by the

administrative law judge. Tufano v. International Terminal
Operating Co., 25 BRBS 285 (1992).
In the instant case, even if

employer's contention that June 2, 1987 is the first date adequate

notice was provided is accepted, claimant complied with Section

33(g)(2) since notice was provided prior to the date the

administrative law judge awarded benefits on August 2, 1989.
See

Mobley, supra.
Contrary to employer's contention, there is no

requirement that notice be given prior to the time employer begins 7 making payments.
APPORTIONMENT - SECTION 33(f)

If on remand the administrative law judge determines that

claimant's claim is not barred by either Section 33(g)(1) or

7
Since employer conceded that adequate notice was provided consistent with 20 C.F.R. §702.281 as of June 2, 1987, we need not specifically address the administrative law judge's findings regarding the invalidity of the regulations.

11
Section 33(g)(2), he must readdress the apportionment issue.
As

stated, supra, the administrative law judge modified the addendum

apportionment statements ordering that 15 percent be distributed

to claimant and 10 percent to the children. The administrative

law judge also found that employer was entitled to a Section 3(e)

credit for claimant's $29,750 interest in the California state

settlement.

Assuming that claimant's right to compensation is not barred

by Section 33(g), employer contends that the administrative law

judge erred in apportioning the award among claimant and her

children. Employer notes that claimant received $212,156.23 in

recovery after attorney's fees and costs in various third party

settlements and $29,750 in settlement of her state claim.

Employer contends that the administrative law judge erred in

finding that it was only entitled to offset 15 percent of the net

third party recovery based on the addendums to the settlements and

that it should be entitled to offset the full $212,156.23 net

recovery. Employer contends that the "self-serving" addendum

attached to each settlement are a sham and should be considered as

such. Employer states that claimant testified that every check

she received went into her and husband's joint account and

therefore she actually received all the money. Employer therefore

contends that the statements of apportionment do not correspond to

how the money was actually distributed.

Employer further contends that the addendum do not constitute

12 substantial evidence of apportionment because no signatures appear

on them to indicate that their terms were agreed upon or

negotiated. Employer contends that if all settlements occurred on

February 2, 1987, as the administrative law judge determined, the

appended apportionment statements are mere post-settlement

statements of claimant's counsel which are to be ignored pursuant

to Force v. Kaiser Aluminum and Chemical Corp, 23 BRBS 1 (1989),

aff'd in part and rev'd in part, Force v.Director, OWCP, 938 F.2d

981, 25 BRBS 13 (CRT)(1991). Claimant responds, urging

affirmance.

Section 33(f) provides that
[The] employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third person. Such net amount shall be equal to the actual amount recovered less the expenses reasonably incurred by such persons in respect to such proceedings (including reasonable attorney's fees.

33 U.S.C. §933(f). Employer may offset only that portion of a

third party settlement attributable to a person entitled to

compensation and employer bears the burden of proving

apportionment. Force v. Director, OWCP, 938 F.2d 981, 25 BRBS 13 (9th Cir. 1991) ,aff'g in part and rev'g in part Force v. Kaiser

Aluminum and Chemical Corp., 23 BRBS 1 (1989). See also I.T.O.

Corp. of Baltimore v. Sellman, 954 F.2d 239, 25 BRBS 101 (CRT)(4th

Cir. 1992), aff'g in part and rev'g in part 24 BRBS 11

(1990)(Brown, J., dissenting).

13
 In the instant case, the administrative law judge determined

that claimant had apportioned the damages in varying percentages

to her family based on the addendums attached to the settlements.

He considered employer's contention that claimant supposedly

received all the money and that "apportionments are inherently

suspect and therefore unallowable" but found these arguments

unconvincing.8 The administrative law judge apparently tried the

issue under the case law in effect at the time that claimant had

the burden to prove apportionment, and if claimant failed to meet

his burden, employer was entitled to the entire offset. See e.g.,
Force, supra, 23 BRBS 1 (1989).
Because the law now provides that

the burden to prove apportionment rests with employer and employer

presented no evidence as to the proper apportionment of the family

settlement, on remand, the administrative law judge should retry

the issue, and provide employer with the opportunity to submit

evidence on its burden of proof.
See Force, 25 BRBS at 20.

ATTORNEY FEES (BRB No. 90-2004)

Claimant submitted a fee petition dated August 21, 1989

requesting $4,404 in attorney's fees for worked performed before

8
Contrary to employer's assertion, claimant testified that her husband received some of the checks when he was alive, and that after his death, a trust had been set up under which everything she and her husband had were going to [her] three children equally. Claimant's testimony is corroborated by Herbert's testimony that they intended that all the family monies would be available for each member to share according to their needs, and that a trust had been set up by an attorney with he and his mother as trustees for that purpose.

14 the deputy commissioner from May 26, 1986 through July 28, 1988.9

Employer objected to the fee petition contending that the work

performed on decedent's claim should be disallowed, that the

hourly rates for Victoria Edises and Bariel Beccar-Varela are

excessive, and that claimant is entitled to an attorney's fee of

$1842.50. In his Compensation Order - Award of Attorney's

Fees, the district director noted that claimant's counsel had

rendered necessary services in the successful prosecution of this

compensation case, and approved a fee for the full $4,162.50

requested pursuant to Section 28. 33 U.S.C. §928. He noted that

employer controverted the intervivos disability claim on October 9
[apparently, 1986] and instituted payments on December 28, 1986

after claimant's counsel's services were utilized. Further, the

district director stated in his letter that he had reduced the

requested hourly fee to conform with the fee schedule approved by

the Administrative Law Judge in his Supplemental Decision and

Order Awarding Attorney's Fees.

On appeal, employer contends as it did below that all of the

9
This fee petition was itemized as follows:

Name Status Hours Rate Total

Victoria Edises Attorney 13.9 $150 $2,085 Gabriel Beccar-Varela Attorney 16 $140 $2,240 Sheila Cress Law Student/ .4 $85 $34
paralegal
Marcia Yusavage Paralegal/ .1 $50 $5
legal assistant
Jena McLemore Paralegal/ .8 $50 $40
legal assistant

15
services performed in relation to decedent's intervivos claim

should be disallowed.
Employer asserts that claimant obtained no

additional benefits for decedent as it voluntarily paid decedent

compensation once it had the relevant data without the need for a

conference or other adjudication.
Further, employer asserts that

all services listed in claimant's counsel's attorney's fee

petition rendered prior to claimant's death claim filed on April

1, 198710 were not in furtherance of her claim since she had not

yet made a claim and presumably was not yet represented by a firm.

Employer therefore contends that Victoria Edises should be

compensated for only 1.8 hours, Gabriel Beccar-Varela for 12.9

hours, and Marcia Yusavage (a paralegal) for .1 hours in the

prosecution of claimant's claim.

Employer also contends that the hourly rate awarded for Ms.

Edises services should be further reduced from $145 to $125

inasmuch as the issues before OWCP were not complex and claimant

did not substantially prevail at that level. Employer maintains

that the district director erred in failing to address the rate at

which Gabriel Beccar-Varela should be compensated indicating that

any rate above $125 is excessive. Claimant responds, urging

affirmance of the fee award pointing out that the hourly rate

awarded to Mr. Varela is $130, which is discerned by subtracting

the known rates and hours from the overall award. Employer

inconsistently replies that although the hourly rate awarded to 10
Employer mistakenly refers to this date as March 17, 1989.

16
Mr. Varela is obviously $130, the district director erred in

failing to support this award.

    Under      Section        28(b),       when     an    employer       voluntarily      pays

benefits and thereafter a controversy arises over additional

compensation due, the employer will be liable for an attorney's

fee if the claimant succeeds in obtaining greater compensation

than that agreed to by the employer.
33 U.S.C. §928(b); See,

e.g., Tait v. Ingalls Shipbuilding, Inc., 24 BRBS 59 (1990);

Kleiner v. Todd Shipyards Corp., 16 BRBS 297 (1984).
Although employer incorrectly asserts that claimant is not

entitled to a fee for services rendered in conjunction with

decedent's intervivos disability claim because she was not a

person entitled to compensation when these services were rendered,

claimant is not entitled to a fee for these services on the facts

presented in this case.
Although decedent's claim was not barred

by Section 33(g) and he was found to be entitled to medical and

disability benefits, the right to these benefits was extinguished

by employer's Section 33(f) and Section 3(e) credits.

Accordingly, claimant did not ultimately obtain additional

compensation for this claim, and if employer is liable for an

attorney's fee, it would be only for those hours subsequent to

claimant's filing of his claim.

    If,     on    remand,        the       administrative        law     judge     ultimately

determines that claimant falls with the Section 33(g)(2)

exception, (i.e, she settled for an amount greater than

17 employer's liability under the Act), since adequate notice was

provided, claimant is entitled to an attorney's fees because she

will have obtained greater compensation than that initially

tendered or paid by employer. See Tait v. Ingalls Shipbuilding,

24 BRBS 59 (1990). If the administrative law judge determines

that claimant falls outside the Section 33(g)(2) exception, since

it is undisputed that claimant did not obtain employer's prior

written approval of the third party settlements, claimant would

not be entitled to attorney's fees inasmuch as she will not have

obtained "additional compensation." See generally Kleiner, supra. In the event that attorney's fees are ultimately found to be due,

we note that the district director's findings with regard to the

applicable hourly rates are proper because employer concedes that

Mr. Varela's hourly rate is $130 under the district director's

award and employer's unsupported assertions are insufficient to

establish that the district director abused his discretion in

setting the hourly rate(s). See Snowden v. Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991)(Brown, J., dissenting on other grounds),

aff'd on recon, 25 BRBS 346 (1992).
Because the outcome of the

attorney fee award is contingent on the administrative law judge's

Section 33(g) determination, we vacate the District Director's

Award of Attorney Fees, and remand for the District Director to

reconsider the issue.11 On remand, if an attorney's fee is 11 Although not challenged on appeal, the administrative law judge's Supplemental Decision and Order Awarding Attorney Fee may require modification on remand contingent on the administrative law judge's Section 33(g) determination.

18 awarded, the district director must state the basis for his fee

reduction, if any. See

Roach v. New York Protective Covering Co., 16 BRBS 114 (1984).

Accordingly, the administrative law judge's Decision and

Order Awarding Benefits and the District Director's Award of

Attorney Fees are vacated, and the case is remanded for

reconsideration in a manner consistent with this opinion.

SO ORDERED.

ROY P. SMITH
Administrative Appeals Judge

NANCY S. DOLDER
Administrative Appeals Judge

REGINA C. McGRANERY
Administrative Law Judge

19