Coward v. Newport News Shipbld

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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