On Petition for Review of an Order of the Benefits Review Board, BRB No. 85-981 BLA.
Gibbons, Chief Judge, Higginbotham, Circuit Judge, and Roth, District Judge*fn*
This petition for review of an order of the Benefits Review Board of the Department of Labor awarding attorneys fees presents two questions for decision. Both questions involve interpretation of 33 U.S.C. § 928 (1982) and its implementing regulation, 20 C.F.R. § 725.367 (1987). First, where a coal mine operator receives an initial determination by a deputy commissioner that a claimant is not eligible for Black Lung benefits, is informed that the claimant disputed this initial determination, and files a controversion of the claim, has the operator "declined to pay benefits . . after receiving written notice of its liability for benefits"? Second, where the claimant hires an attorney and the operator withdraws its controversion prior to the hearing before an administrative law judge, has the claimant "utilized the services of an attorney in the successful prosecution of the claim"? We answer both questions in the affirmative, and, with one modification, will enforce the order of the Benefits Review Board.
Frank Markovich was a coal miner for almost forty years. In November of 1980, he applied for disability benefits under the Black Lung Benefits Act, 30 U.S.C. § 901-45, The Department of Labor informed the Bethlehem Mines Corporation (now known as Bethenergy Mines, Inc.) in January of 1981 that Markovich had filed a claim, that the claim was under investigation, and that Bethenergy Mines had been identified as the putative responsible operator, that is, the operator who would be responsible for paying benefits if Markovich were found eligible for benefits. The Department asked Bethenergy Mines to indicate whether it agreed that it was the responsible operator and explained:
If you agree to accept liability, please mark the applicable section on the enclosed Operator Response Form (CM-970a). This does not mean that you accept eligibility of the claimant for benefits, only that you are accepting liability as the responsible operator within the meaning of the Act, should the claimant subsequently be found entitled to benefits.
Bethenergy Mines denied that it was the responsible operator.
In February of 1981, a claims examiner for the Department made a preliminary finding that Markovich was not entitled to benefits because he was not totally disabled by pneumoconiosis. Markovich retained counsel who requested a hearing before an administrative law judge. In November of 1981, Bethenergy Mines was informed of these developments. The notification states:
Enclosed is a copy of a claim and supporting documents filed with this office under the Black Lung Benefits Act. . . . We have reviewed the claim and administratively determined that the evidence does not support entitlement under the Act. The claimant has contested our decision.
You must respond to this notice within thirty days by accepting or controverting the claim for benefits.
Failure to respond within the specified time shall be considered a waiver of your right to contest the claim, unless your failure to respond to notice is excused for good cause.
Bethenergy Mines responded to this notification by means of a form known as an "Operator Controversion." Bethenergy Mines stated that it joins in" the Department's initial determination that Markovich was not eligible for benefits, and further claimed -- unlike the initial determination by the claims examiner -- that Markovich did not have pneumoconiosis, that any pneumoconiosis did not arise from his coal mine ...