A former employee of eastern won a claim for black lung disease. The administrative law judge warded attorney fees and this was upheld on appeal. The panel affirmed as modified. It held that the administrative law judge properly looked to previous fee awards for eth same attorneys in black lung cases as it was the best available evidence of prevailing market rates. The panel noted that past awards do not set the rate for all time, but, are evidence of current rates. The panel also held that using a market survey of general attorney fees in the area was appropriate. It reduced the award for legal assistant work, however, as the only evidence in the record supported a fee of $50 per hour not the $100 per hour used to craft the award. The panel rejected a blanket challenge to quarter hourly billing as that system is allowed by federal regulation and rejected the challenge to this particular award because the administrative law judge reviewed the charges and disallowed duplicative and clerical charges. Te panel held that requiring proof as to each item charged would create a disincentive for attorneys to take black lung cases contrary to congressional intent.
After a contested hearing, Owens was awarded black lung benefits. The panel, with one judge adding a concurring opinion, affirmed. The panel held that both the administrative law judge and review board allowed Mingo to offer evidence that coal mining did not materially contribute to Owens’ lung disease and did not limit Mingo to the two grounds the Secretary of Labor may use in 30 USC 921. The majority held that the administrative law judge properly considered the qualifications of the radiologists reading Owens’ x-rays as this was required by regulation and thus the explanation for her decision to credit positive readings was adequate and her choosing to accept Owens’ experts instead of Mingo’s was also supported by substantial evidence. One judge, who wrote the panel opinion added a concurrence arguing that the review board erroneously adopted the two ground rule of 30 USC 921 as the text of the statute is directed only to the secretary of labor and the united states supreme Court has approved coal companies arguing a lack of significant connection in a case involving 30 USC 921.