Donnie B. Adkins v. Kentland Elkhorn Coal Corporation Director, Office of Workers' Compensation Programs, United States Department of Labor

Sixth Circuit

Donnie B. Adkins v. Kentland Elkhorn Coal Corporation Director, Office of Workers' Compensation Programs, United States Department of Labor

109 F.3d 307, 1997 U.S. App. LEXIS 5449, 1997 WL 129041

Court of Appeals for the Sixth Circuit·Decided March 24, 1997·No. 95-3122·Published·Cited by 2 cases

Opinion

ORDER

This cause comes before the court upon the application of counsel for petitioner, Donnie B. Adkins, for an award of attorney fees, under Section 28 of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 928, as incorporated into the Black Lung Benefits Act, as amended, 30 U.S.C. § 932. The application is opposed.

Upon review of the application and supporting documentation, this court concludes that the application is premature. The applicable statute permits an award of attorney fees if the claimant has utilized the services of an attorney “in the successful prosecution of his claim.” 33 U.S.C. § 928; 20 C.F.R. § 725.367(a); United States Dep’t of Labor v. Triplett, 494 U.S. 715, 717, 110 S.Ct. 1428, 1430, 108 L.Ed.2d 701 (1990). Thus, attorney fees may be recovered only if there has been a final decision awarding the claimant an economic benefit as a result of his black lung claim. See also Director, OWCP v. Baca, 927 F.2d 1122, 1124 (10th Cir.1991) (attorney fees may be recovered only if the claimant receives increased compensation or other economic benefit from the action); Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 556 (9th Cir.1989) (the claimant was not entitled to attorney fees on appeal when no dispute over liability for compensation was resolved in her favor).

Therefore, the court denies the application, without prejudice to allow counsel for Adkins to reapply for attorney fees should her client finally be awarded benefits.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

This cause comes before the court upon the application of counsel for petitioner, Donnie B. Adkins, for an award of attorney fees, under Section 28 of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 928, as incorporated into the Black Lung Benefits Act, as amended, 30 U.S.C. § 932. The application is opposed.

Upon review of the application and supporting documentation, this court concludes that the application is premature. The applicable statute permits an award of attorney fees if the claimant has utilized the services of an attorney “in the successful prosecution of his claim.” 33 U.S.C. § 928; 20 C.F.R. § 725.367(a); United States Dep’t of Labor v. Triplett, 494 U.S. 715, 717, 110 S.Ct. 1428, 1430, 108 L.Ed.2d 701 (1990). Thus, attorney fees may be recovered only if there has been a final decision awarding the claimant an economic benefit as a result of his black lung claim. See also Director, OWCP v. Baca, 927 F.2d 1122, 1124 (10th Cir.1991) (attorney fees may be recovered only if the claimant receives increased compensation or other economic benefit from the action); Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 556 (9th Cir.1989) (the claimant was not entitled to attorney fees on appeal when no dispute over liability for compensation was resolved in her favor).

Therefore, the court denies the application, without prejudice to allow counsel for Adkins to reapply for attorney fees should her client finally be awarded benefits.

Donnie B. Adkins v. Kentland Elkhorn Coal Corporation Director, Office of Workers' Compensation Programs, United States Department of Labor, 109 F.3d 307, 1997 U.S. App. LEXIS 5449, 1997 WL 129041 (6th Cir. 1997).

Pincite

109 F.3d 307 (Donnie B. Adkins v. Kentland Elkhorn Coal Corporation Director, Office of Workers' Compensation Programs, United States Department of Labor) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related