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4th Circuit affirms fee award in black-lung case

A federal appeals court has awarded more than $32,000 in fees to a law firm that represented a former coal miner in his successful bid to be compensated for the black-lung disease he had contracted during his 17 years on the job.

The 4th U.S. Circuit Court of Appeals, in issuing the award, said it considered the vast black-lung litigation experience that Wolfe Williams Rutherford & Reynolds attorneys brought to their representation of Harold Gosnell in his claim against Eastern Associated Coal Corp.

The 4th Circuit also cited about 20 black-lung cases in which Wolfe Williams attorneys received comparable fees.

In its decision, the court rejected Eastern’s argument that black-lung attorneys deserved no greater fee than lawyers who handle workers’ compensation cases or do criminal defense work in Gosnell’s community of Norton, Va.

“[I]t is unsurprising that, all other things being equal, the most reliable indicator of prevailing market rates in a black-lung case will be evidence of rates allowed in other black-lung cases, rather than rates in general civil litigation, or, as suggested by Eastern, criminal defense work,” Judge Barbara M. Keenan wrote in a published opinion joined by Judges J. Harvie Wilkinson III and Roger L. Gregory.

Wolfe Williams attorney Ryan C. Gilligan said he hopes the 4th Circuit’s award of $32,678.75 will encourage other lawyers to represent victims of black-lung disease.

“There are few incentives for lawyers to take these cases,” said Gilligan, noting that the federal Black Lung Benefits Act permits plaintiffs’ attorneys to be paid only if they win and a court awards fees. “At times, you spend as much time fighting for the fees.”

Even so, Gilligan said his reward in black-lung cases is not financial.

“As a lawyer, you want to help members of your community {and be] a voice for people who don’t have a voice,” said Gilligan, whose firm is in Norton, Va. “In this area, miners need help.”

Eastern’s attorney Mark E. Solomons said in an email that the 4th Circuit’s “decision is contrary to all fee-shifting precedent which requires market proof of rates. And there was none.” Solomons is with Greenberg Traurig LLP in Washington, D.C.

The 4th Circuit did slightly trim the $34,578.75 fee award from the Benefits Review Board, a division of the U.S. Department of Labor.

The court reduced the award by $1,900, saying the firm’s award of $3,800 for the work of legal assistants was double the reasonable amount.

Other than that, the 4th Circuit agreed with an administrative law judge’s conclusion that the firm had reasonably spent 168.95 hours on Gosnell’s case.

The court also accepted attorney Joseph E. Wolfe’s hourly rate of $300, based on his 30 years’ experience, and Bobby S. Belcher Jr.’s rate of $250, based on his 16 years’ experience.

Two other attorneys, W. Andrew Delph Jr. and Gilligan, had reasonably charged rates of $200 and $175, respectively, based on their years in practice, the court added.

In its decision Wednesday, the 4th Circuit said the ALJ took “thoughtful and careful consideration” of the law firm’s fee request. The court noted that the ALJ slashed about 30 hours from the firm’s initial calculation for work the judge found “duplicative or unnecessary,” including seven hours in which Wolfe and Gilligan had charged for the same service related to a deposition and hearing.

Gosnell filed his claim for benefits against Charleston, W.Va.-based Eastern in 2005 after he was diagnosed with complicated coal workers’ pneumoconiosis, commonly referred to as black-lung disease.

The hearing before a U.S. Labor Department administrative law judge featured a battle of medical experts.

Dr. William Scott, a radiologist for Eastern, testified that the presence of pneumoconiosis on only one of Gosnell’s lungs was “incredibly atypical” and indicated a non-coal-related infection. Dr. Kathleen DePonte, a radiologist for Gosnell, agreed that the “classic” black-lung case affects both lungs but said she believed that coal caused the disease, according to the court’s opinion.

The ALJ agreed with DePonte in 2010 and awarded benefits to Gosnell and his wife in the total monthly amount of $938, which is set and adjusted by federal regulation. The judge also awarded attorney’s fees of $31,628.75, which rose to $34,578.75 when Eastern appealed the case to the Benefits Review Board, the opinion stated.

Eastern Association Coal Corp. v. Harold Gosnell et al., 4USCA Nos. 11-2038 and 11-2380. Published. Opinion by Keenan, J. Argued May 14, 2013. Filed July 31, 2013.
Is it appropriate to treat attorney’s fee requests in black-lung cases differently from other worker’s compensation cases?
Yes; the most reliable indicator of market rates in black-lung cases are previous black-lung cases.
Laura Metcoff Klaus for petitioner; Ryan C. Gilligan for respondents.
RecordFax # 13-0731-60 (34 pages).