Coward v. Newport News Shipbld ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY COWARD,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND
No. 96-2557
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(No. 94-3821)
Submitted: January 27, 1998
Decided: February 23, 1998
Before HALL, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John H. Klein, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia,
for Petitioner. Melissa R. Link, MASON & MASON, P.C., Newport
News, Virginia, for Respondents.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Coward petitions this court for review of a decision of the
Benefits Review Board ("the Board") affirming the administrative law
judge's ("ALJ") decision and order denying attorney's fees to Cow-
ard's former attorney.1 Because substantial evidence supports the
Board's decision based upon the findings of the ALJ, we affirm.
Coward injured his back while working for Newport News Ship-
building ("NNS"); thereafter, he received temporary total disability
benefits for the next six years. Coward retained the services of Attor-
ney John Klein and filed a claim under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C.A. §§ 901-950 (West 1986 &
Supp. 1997) ("the Act"), seeking permanent total disability benefits.
NNS contested the claim, challenging the extent of Coward's disabil-
ity.
Prior to the scheduled hearing before the ALJ, Klein was allowed
to withdraw as counsel of record. Klein filed a petition for attorney's
fees for work done on Coward's behalf in the workers' compensation
proceedings before the ALJ. Coward's claim for disability benefits
was remanded to the district director and Coward obtained new coun-
sel, Attorney Faye F. Spence. Spence negotiated the settlement agree-
ment between Coward and NNS, which was subsequently approved
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1 The Board did not address the merits of the appeal. On September 12,
1996, the Board sent the parties a notice stating that pursuant to the pro-
vision of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the Board relating to claims under the Act were deemed to
have been affirmed if the case had been pending before the Board for one
year by September 12, 1996. Because Coward's appeal met these
criteria, the Board informed the parties that the ALJ's decision had been
effectively affirmed by the Board on September 12, 1996, for purposes
of their rights to obtain review in this court.
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by the district director. The settlement agreement provided that attor-
neys' fees for both Klein and Spence would be deducted from Cow-
ard's negotiated lump-sum payment.
Before the district director approved Coward's settlement agree-
ment, Klein renewed his request for attorney's fees. The ALJ denied
Klein's request, finding that because he did not successfully prosecute
Coward's claim for permanent total disability benefits, he was not
entitled to payment by either NNS or Coward. The Board summarily
affirmed.
Section 21 of the Act sets forth the applicable standard of review:
The Board shall be authorized to hear and determine appeals
raising a substantial question of law or fact . . . . The find-
ings of fact in the decision under review by the Board shall
be conclusive if supported by substantial evidence in the
record considered as a whole.
33 U.S.C.A. § 921(b)(3) (West 1986). Accordingly, we will reverse
the Board's order only if there is an error of law or a finding of fact
that is not supported by substantial evidence.2 The Supreme Court of
the United States has defined "substantial evidence" as "`such rele-
vant evidence as a reasonable mind might accept as adequate to sup-
port a conclusion.'"3
The Act "provides for direct payment of attorney's fees by an
employer only when a claim involving the existence or extent of lia-
bility is resisted by an employer and is subsequently successfully
prosecuted by claimant's attorney."4 Our analysis of attorney fee
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2 See John T. Clark & Son, Inc. v. Benefits Review Bd., 621 F.2d 93,
95 n.3 (4th Cir. 1980) (citing O'Leary v. Brown-Pacific-Maxon, Inc., 340
U.S. 504, 508 (1951)).
3 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
4 Portland Stevedoring Co. v. Director, OWCP, 552 F.2d 293, 294 (9th
Cir. 1977); see 33 U.S.C.A. § 928(a) (West 1986).
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awards requires first and foremost that they be confined to work done
on successful claims.5
Here, Coward sought permanent total disability benefits but only
received temporary total disability benefits. Thus, although Coward
garnered a favorable settlement, his claim was not successful because
he did not obtain greater compensation than the amount which
employer voluntarily paid or agreed to pay.6 Moreover, another attor-
ney was responsible for negotiating this settlement. The ALJ's deter-
mination that Klein's efforts did not lead to the successful prosecution
of Coward's disability claim and that he was not entitled to payment
of attorney's fees by NNS or Coward is rational and supported by the
record as a whole.7
Accordingly, we affirm the Board's decision to affirm the order of
the ALJ. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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5 See Hensley v. Eckerhart, 461 U.S. 434-35 (1983).
6 See Flowers v. Marine Concrete Structures, Inc., 19 BRBS 162, 1986
WL 66389, *2 (BRB No. 82-138 Feb. 28, 1986).
7 See 33 U.S.C.A. § 928(a), (c) (West 1986); Kemp v. Newport News
Shipbuilding & Dry Dock Co., 805 F.2d 1152, 1153 (4th Cir. 1986)
(holding claimant responsible for attorney's fees incurred prior to
employer's controversion of claim for disability compensation).
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