United States Fourth Circuit

In an action brought by plaintiff-longshoreman against defendant-employer, decision of the Department of Labor's Benefits Review Board (BRB) is affirmed in part, vacated in part, and remanded where: 1) the evidence relied upon by the ALJ is, for the purpose of rebutting an allegation of an aggravation of a prior injury, no evidence at all; 2) an award of plaintiff's attorney fees is remanded as it was an abuse of discretion for the BRB to look to an hourly rate appropriate ten years ago, arbitrarily adjusted with no regard to the fact of the case or the lodestar factors; and 3) BRB did not abuse its discretion to deduct 1.05 hours from plaintiff's appellate counsel in concluding that it did not sufficiently relate to appellate work.

Appellate Information

• Decided 12/29/2009
• Published 12/29/2009

Judges

• Before NIEMEYER and DUNCAN, Circuit Judges, and JAMES P. JONES, ChiefUnited States District Judge for the Western District of Virginia, sitting by designation.

Court

• United States Fourth Circuit

Counsel

• For Appellant:
  
• ARGUED:Jonathan Henry Walker, Mason, Mason, Walker & Hedrick, PC, Newport News, Virginia, for Newport News Shipbuilding and Dry Dock Company. Joshua Thomas Gillelan, II, Longshore Claimants National Law Center, Washington, DC, for Harry Holiday. ON BRIEF:Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia, for Harry Holiday.