109 F3d 307 Adkins v. Kentland Elkhorn Coal Corporation

109 F.3d 307

Donnie B. ADKINS, Petitioner,
v.
KENTLAND ELKHORN COAL CORPORATION; Director, Office of
Workers' Compensation Programs, United States
Department of Labor, Respondents.

No. 95-3122.

United States Court of Appeals,
Sixth Circuit.

March 24, 1997.

Anna Stewart Whites, Louisa, KY, for Petitioner.


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1

Billy R. Shelton, Baird, Baird, Baird & Jones, Pikeville, KY, for Kentland Elkhorn Coal Corp.

2

Cheryl Blair Kijewski, Christian P. Barber, U.S. Department of Labor Office of the Solicitor, Washington, DC, for Director, Office of Workers' Compensation Programs, U.S. Department of Labor.

ORDER

3

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.

4

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).

5

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.