Background:
This action involved a petition for review of the Benefits Review Board (BRB). Petioner, employer, Newport News Shipbuilding and Dry Dock Company, brought this appeal for review of a final order of the BRB holding that Newport News had not provided substantial evidence to rebut a presumption of compensability that the Longshore Harbor Workers' Compensation Act, LHWCA, provided once Holiday made his prima facie case of workplace related injury. The BRB also awarded Holiday's appellate counsel $250/hour down from the requested rate of $450/hour.

Holiday worked as a longshoreman for Newport News primarily as a pipefitter. While assembling metal racks at an industrial park, where he occasionally took overtime assignments, Holiday experienced back pain, reported it to his supervisor, but declined medical attention,

Holiday's duties required him to press down on a drill and bend over repeatedly to pick up the boxes, and at one point, felt his back "give out" (while working at the main yard not the industrial park) when he bent over to reach a box on the ground.

Holiday then filed a claim for total disability compensation under the LHWCA. His case was assigned to an Administrative Law Judge, ALJ, which found that Holiday sufficiently alleged a back injury when he was working in the overtime yard which was worsened by picking up a box in the main yard. The ALJ held that Holiday presented a prima facie case of compensability, creating a presumption of recovery under §920(a) of the LHWCA.

The ALJ then found evidence to rebut the presumption, first Holiday finished a weekend of overtime and returned to work despite injuring his back the first time and consistently declined medical attention.

Moreover, Holiday's supervisor testified, through a deposition, that Holiday missed one day of work but worked an entire week requiring him to bend over and lift 20-30 pound pieces of material. Finally, the ALJ relied on two responses provided by Holiday in his Claim for Compensation form, which Holiday admits to working after first experiencing back pain.

Holiday appealed the ALJ's decision to the BRB and concluded that the ALJ relied upon insufficient evidence to rebut the presumption.

The BRB did however, reduce Holiday's fee award from the requested 420 per hour to 250.

Newport News has appealed the BRB's reversal of the ALJ's holding and Holiday the reduction of attorney's fee award.

Issue:
Did the BRB err in reversing the ALJ's determination and reducing Holiday's fee award?

Held:
This Court first examined whether the three pieces of evidence the ALJ relied on in his first determination, amounted to substantial evidence.

The substantial evidence standard requires employers to put forward as much relevant factual matter in a reasonable mind that would be needed to accept, as one rational conclusion, that the employee's injury did not arise out of his employment.

Newport News argued that by proving the existence of Holiday's first back injury, in the overtime yard, which caused the same symptoms as the injury in the main yard, it provided substantial evidence that the second injury was merely a natural outgrowth of the first.

However, the BRB noted that Newport did not deny that Holiday's back materially worsened while he repeatedly bent over to pick up boxes and drill them. Accordingly this Court found that the BRB ruled correctly in determining Newport failed to introduce substantial evidence rebutting the presumption.

Holiday, on the other hand, argued that the BRB's reduction of his request of fees was improper. The rate awarded by the BRB, this Court noted, shall be based on what is reasonable and customary in the area where the services were rendered.

This Court ultimately found that an hourly rate, appropriate ten years ago, adjusted arbitrarily with no regard to the facts of the case or other factors was not appropriate today. This was how the BRB determined to reduce the fee award.

Accordingly, this Court remanded the fee determination back to the BRB to determine the correct hourly rate.

Comment:
In determining an hourly rate, the BRB must base its award on what is reasonable and customary in the area where the services were rendered for a person of the particular professional status. The BRB does have the power to set awards to its own past determinations but it must be reasonable in comparison to what other attorneys earn for similar services.

Steve Gordon