(a) 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. Generally, the operator or fund liable for the payment
of benefits shall be liable for the payment of the claimant's
attorney's fees where the operator or fund, as appropriate, took
action, or acquiesced in action, that created an adversarial
relationship between itself and the claimant. The fees payable under
this section shall include reasonable fees for necessary services
performed prior to the creation of the adversarial relationship.
Circumstances in which a successful attorney's fees shall be payable by
the responsible operator or the fund include, but are not limited to,
the following:
(1) The responsible operator designated by the district director
(see Sec. 725.410(a)(3)) fails to accept the claimant's entitlement to
benefits within the 30-day period provided by Sec. 725.412(b) and is
ultimately determined to be liable for benefits. The operator shall be
liable for an attorney's fee with respect to all necessary services
performed by the claimant's attorney;
(2) There is no operator that may be held liable for the payment of
benefits, and the district director issues a schedule for the
submission of additional evidence under Sec. 725.410. The fund shall be
liable for an attorney's fee with respect to all necessary services
performed by the claimant's attorney;
(3) The claimant submits a bill for medical treatment, and the
party liable for the payment of benefits declines to pay the bill on
the grounds that the treatment is unreasonable, or is for a condition
that is not compensable. The responsible operator or fund, as
appropriate, shall be liable for an attorney's fee with respect to all
necessary services performed by the claimant's attorney;
(4) A beneficiary seeks an increase in the amount of benefits
payable, and the responsible operator or fund contests the claimant's
right to that increase. If the beneficiary is successful in securing an
increase in the amount of benefits payable, the operator or fund shall
be liable for an attorney's fee with respect to all necessary services
performed by the beneficiary's attorney;
(5) The responsible operator or fund seeks a decrease in the amount
of benefits payable. If the beneficiary is successful in resisting the
request for a decrease in the amount of benefits payable, the operator
or fund shall be liable for an attorney's fee with respect to all
necessary services performed by the beneficiary's attorney. A request
for information clarifying the amount of benefits payable shall not be
considered a request to decrease that amount.
(b) Any fee awarded under this section shall be in addition to the
award of benefits, and shall be awarded, in an order, by the district
director, administrative law judge, Board or court, before whom the
work was performed. The operator or fund shall pay such fee promptly
and directly to the claimant's attorney in a lump sum after the award
of benefits becomes final.
(c) Section 205(a) of the Black Lung Benefits Amendments of 1981,
Public Law 97-119, amended section 422 of the Act and relieved
operators and carriers from liability for the payment of benefits on
certain claims. Payment of benefits on those claims was made the
responsibility of the fund. The claims subject to this transfer of
liability are described in Sec. 725.496. On claims subject to the
transfer of liability described in this paragraph the fund will pay all
fees and costs which have been or will be awarded to claimant's
attorneys which were or would have become the liability of an operator
or carrier but for the enactment of the 1981 Amendments and which have
not already been paid by such operator or carrier. Section 9501(d)(7)
of the
Internal Revenue Code (26 U.S.C.), which was also enacted as a part of
the 1981 Amendments to the Act, expressly prohibits the fund from
reimbursing an operator or carrier for any attorney fees or costs which
it has paid on cases subject to the transfer of liability provisions.
