Kuhn v. Kenley Mining Co. , 32 F. App'x 82 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES KUHN, 
Petitioner,
v.
KENLEY MINING COMPANY; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR; WEST
 No. 01-2255
VIRGINIA PNEUMOCONIOSIS FUND,
Respondents.
PEABODY COAL COMPANY; OLD
REPUBLIC INSURANCE COMPANY,
Amici Curiae.

On Petition for Review of an Order of the
Benefits Review Board.
(00-770-BLA)
Submitted: March 21, 2002
Decided: April 4, 2002
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert M. Bastress, Morgantown, West Virginia, for Petitioner. Rob-
ert Weinberger, EMPLOYMENT PROGRAMS LITIGATION UNIT,
2 KUHN v. KENLEY MINING COMPANY
Charleston West Virginia; Eugene Scalia, Solicitor of Labor, Donald
S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate
Litigation, Edward Waldman, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondents. Mark E. Solomons,
Laura Metkoff Klaus, GREENBERG TRAURIG, L.L.P., Washing-
ton, D.C., for Amici Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charles Kuhn appeals the decision of the Benefits Review Board
("the Board") concluding that it was not statutorily empowered to
direct that the fee of Kuhn’s lay representative be paid by his former
employer.* We affirm.
The legal conclusions of the Administrative Law Judge and the
Board are reviewed de novo. Milburn Colliery Co. v. Hicks, 138 F.3d
524, 528 (4th Cir. 1998). The Director for the Office of Workers’
Compensation Programs for the Department of Labor’s ("the Direc-
tor’s") interpretation of its own regulations is entitled to substantial
deference and will be sustained unless it is plainly erroneous or incon-
sistent with the regulation. Clinchfield Coal Co. v. Harris, 149 F.3d
307, 309 (4th Cir. 1998).
This appeal requires us to construe the fee-shifting provision of
Section 28 of the Longshore and Harbor Workers’ Compensation Act
*Kuhn and his lay representative, John Cline, successfully prosecuted
a claim for black lung benefits. The Board’s decision granting benefits
to Kuhn is not at issue in this appeal. The only issue is whether a lay rep-
resentative’s fee must be paid by the black lung claimant or may be
shifted to the employer.
KUHN v. KENLEY MINING COMPANY 3
("LHWCA"), 33 U.S.C. § 928 (1994) (incorporated into the Black
Lung Benefits Act ("BLBA") by 30 U.S.C. § 932(a) (1994)), and its
implementing regulation. The statute provides, in relevant part:
If . . . the person seeking benefits . . . utilized the services
of an attorney at law in the successful prosecution of his
claim, there shall be awarded, in addition to the award of
compensation, in a compensation order, a reasonable attor-
ney’s fee against the employer or carrier in an amount
approved by the deputy commissioner, Board, or court, as
the case may be, which shall be paid directly by the
employer or carrier to the attorney for the claimant in a
lump sum after the compensation order becomes final.
33 U.S.C. § 928(a) (1994). The implementing regulation reads:
An attorney who represents a claimant in the successful
prosecution of a claim for benefits may be entitled to collect
a reasonable attorney’s fee from the responsible operator
that is ultimately found liable for the payment of benefits,
or, in a case in which there is no operator who is liable for
the payment of benefits, from the fund.
20 C.F.R. § 725.367(a) (2001).
We agree that the statute does not permit the fees of a lay represen-
tative to be shifted to an employer. Further, Kuhn has failed to dem-
onstrate the Director’s interpretation of the statute’s implementing
regulation is flawed. We therefore affirm the decision of the Board.
See Galle v. Director, OWCP, 246 F.3d 440, 451 (5th Cir.), cert.
denied, 125 S. Ct. 479 (2001); Todd Shipyards Corp. v. Director,
OWCP, 545 F.2d 1176, 1181 (9th Cir. 1976); Madrak v. Director,
OWCP, 7 BLR 1-559 (1984); Harrison v. Liberty Mutual Ins. Co., 3
BLR 1-596 (1981). We dispense with oral argument because the facts
and legal conclusions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED