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.
Argued: September 22, 2009
Decided: December 29, 2009
Opinion by Circuit Judge Duncan
For Appellant: Jonathan Henry Walker, Mason Mason Walker & Hendrick, PC