we increase the fee, it will be necessary for us to deduct the increase from other black lung benefits due you. We are enclosing a copy of the attorney's letter of protest to us. If you wish to comment upon it, or submit additional information concerning his services to you, you may do so within the next ten days. Such additional information will be considered in our redetermination of the attorney's fee. DEAR SIRS: In concern of the letter I received the other day on my black lung, I think that what Mr. Perry has received is enough for what he did for me and I would appreciate it very much if you would send the balance to me. Thank you very much. Very truly yours, Bureau of Hearings and Appeals, Social Security Administration, RE: Daniel Mullins No. 406-34-9565 LM DANIEL MULLINS, Claim No. 406–34-9565 LM. PERRY AND GREENE, Paintsville, Ky., February 19, 1973. DEAR SIR: This is to advise that we do hereby request a review by the Social Security Administraeion of the authorization to charge and receive a fee in the above case. Our grounds for review are as follows: 1. We had a contract with this man providing that we would receive a sum equal to 25 percent of the back pay which may be due the claimant at the time his benefits are awarded. This contract is not in any way to make our fee conditional upon his benefits being awarded under the old law. The services were in fact performed. Our client owes this to us for our services. A review of our file indicates that a high percentage of our services, approximately 90 percent, were in fact performed prior to the passage of the Black Lung Benefits Act of 1972. 2. The theory of a contingent fee, such as the one that we were to receive, is that you would lose a lot of cases, and you win only a portion of your cases. The simple fact of the matter is that our client most probably would not have been able to obtain an attorney if he had to so do by paying us on a hourly straight fee basis. It is significant to note that our client has not in any way objected to complying with the written contract which he signed. 3. The Black Lung Benefits Act of 1972, providing for approval of attorney fees, is not retroactive as to cover services which were rendered prior to its passage. Therefore, the administration should issue a statement in this matter to the effect that the allowance of this fee is only an allowance for services performed after passage of the 1972 Act, and that payment of the fee for serviices performed prior to the passage of the 1972 Act is a private matter between the attorney and client. Any other position taken by the Administration on this question would be in contravention of the United States Constitution. Therefore, we do respectfully request that the authorization to charge and receive a fee be reviewed, and that it be altered so as to conform with the reasons set forth above. Very truly yours, G. C. PERRY III. I, Daniel Mullins employed Perry and Greene, Attorneys of Paintsville, Kentucky to represent me in my federal black lung case by written contract with them on April 17, 1971, and I have been through my file item by item with them and I am convinced that they earned the $1200 fee they were paid which is $1472.97 less then the 25% called for in the contract. I believe that both of said attorneys handled the case properly and that but for their efforts in my behalf I would not have won. To my knowledge they did nothing but properly represent my interest as my attorneys in this aforementioned matter. This affidavit may be presented to anyone Perry and Greene so desires. State of Kentucky County of Floyd DANIEL MULLINS. Sworn and subscribed to before me by Daniel Mullins on this the 23 day of Sept 1973. My Comm Exp. Feb. 26, 1975. JULIANNE PERRY NOTARY PUBLIC STATEMENT OF FRED COBURN, MINER, HIPPO, KY. My name is Fred Coburn. I am 85 years of age and my family and I live at Hippo, Kentucky. I have been going to Dr. Holbrook for the past 2 or 3 years and he has been treating me for a lung disease. Dr. Holbrook has put me in the hospital several times for the purpose of taking X-rays and running various tests. After obtaining the results from these X-rays and tests, Dr. Holbrook sent me to see a Dr. Smith at Lexington, Kentucky. Having received word from Dr. Smith, Dr. Holbrook told me that I had black lung. Dr. Holbrook told me that I might be eligible for Black Lung Benefits and referred me to a lawyer by the name of Albert Burchett. I went to see Burchett and he told me to see a Dr. Clark at Pikeville and to get a breathing test. Dr. Clark sent the results of the breathing test to me and I took them to Burchett. While I was in his office Burchett said, "Fred, I'll tell you how I work-for half back-pay." I told Burchett that it was better to get a little of something than to get nothing at all. Then Burchett said, "If we win, the check will come direct to me, I'll call you, and we'll divide it." The check came to me instead. My brother-in-law, Monroe Baldridge, took me to Burchett's office. I waited in Burchett's office for a while and then Burchett, Baldridge, and I went to the bank. Burchett and I split the check. The check was written to me for the sum of approximately $8,120.20. Burchett took $4,000.00, and I kept the remainder. On parting, Burchett said, "Fred, we'll get another check later." Neither Baldridge nor I knew what Burchett meant by this statement. The only other checks I have received are my monthly checks and I have not paid him any more money out of those checks. Some of my neighbors were telling me that a Mr. Harlan Moore from Topmost, Kentucky, had had Burchett for his lawyer when he applied for Black Lung Benefits. The neighbors told me that Moore had told them that Burchett would not accept any payment from Moore's back-pay check; but, instead, Burchett told Moore, "I'll get my pay." I called Moore to see if this was true and he told me that it was. Since Burchett did not take his fee from Moore's back-pay check and supposedly was going to get his pay from some other source, I think that Burchett should return my $4,000.00 and get his payment from that other source, just as he did in Moore's case. STATEMENT OF OSCAR CRUM, MINER, ARKANSAS CREEK, KY. My name is Oscar Crum and I live on Arkansas Creek at Martin, Floyd County, Kentucky. I am presently 76 years old and I worked in the underground coal mines for 39 years. I first applied for Black Lung benefits on March 5th, 1970. Around September of 1970, I received a letter from Social Security stating that I had been turned down. I knew that Albert Burchett had a law office in Martin and so I went to talk to him concerning my claim. At first he agreed to take my case. providing I would sign an agreement to give him 25% of my back benefits and bear expenses in obtaining medical proof. Then he made me an appointment with a Dr. Anderson in Louisville, Kentucky. After I went to see Dr. Anderson, Mr. Burchett contacted me and said that these reports were not satisfactory and went on to inform me that I was at liberty to get any lawyer I wanted, as he did not feel that he could win my case. This trip to Dr. Anderson cost me $175.00. I did not give Mr. Burchett any response to this statement. A few days later Mr. Burchett contacted me by telephone and said that he was going to send me to a Dr. O'Neal, providing I would agree to give him 50% of my back benefits. However, the time was about to run out on appealing my case so Mr. Burchett sent me to Dr. Martin at Our Lady of the Way Hospital in Martin, Kentucky. And once again I had to bear expenses which amounted to $27.50. After this I went to Dr. O'Neal in Lexington (at the UK Medical Center) and Mr. Burchett said he would bear expenses on this and as far as I know he did-but I did receive 3 or 4 bills from the UK Medical Center ($17.00) for x-rays and I would have to call and remind Mr. Burchett of these bills, but I finally stopped receiving these bills, so apparently he did pay it. Around the 1st of February, Social Security notified me to go to another doctor of my choice and stated that they would pay for it. I once again went to see Dr. Martin at Our Lady of the Way Hospital in Martin, Kentucky. It was my understanding that my case would be decided upon after going to see the doctor of my choice. But Mr. Burchett sent me to see Dr. Odom at Elkhorn City and Dr. Clarke at Pikeville, Kentucky, this was in February of 1973. In March of 1973, I was notified that I had been awarded my Black Lung benefits. I was never contacted by Mr. Burchett, but after I received my Black Lung check a notice was attached that $1,000 had been withheld to go toward any attorney fees that I may have had. A few weeks later I received a notice from Mr. Burchett where he had sent in as of working 351⁄2 hours on my case and was asking for $2,020.00 of my back benefits. I have never been notified by Social Security or Mr. Burchett of whether or not he received the $1,000 of my back pay. Mr. Burchett has never asked me for the rest of the 50% fee. I am attaching copies of the correspondence from Social Security, which included my written agreement with Mr. Burchett for 50% of the back pay. Did you render any services relating to this mentor before any State or Federal court? If "Yes," what foc aid you or will you charge for services in connection with the court proceedings? 4. Have you and your client tentatively agreed upon a fee for your services? 5. If "Yes," please specify the cmount (or the agreed-upon formula). Have you received, or do you expect to receive, cay payment for your representation other than the fee indicated above, such as reimbursement for expenses you incurred? If "Yes," itemize below: ADDRESS azd CATE 4/25/73 CLAMANT'S COPY TELEPHONE NOT A 200 3742 503 This is a copy of a petition which has been filed by your representative with the Social Security Administration requesting approval to charge a fee for services performed in connection with your social security claim. If you have any questions about any statement in the petition, you should get in touch with your Social Security Administration District Office at once, and no later than 10 days from the date of this petition. If you prefer you may direct your questions in writing to the last office which took action in your case. Unless your claim went before the Bureau of Hearings and Appeals this would be the reviewing office whose address appears on your notice of award or disallowance. If the last determination in your case was made by a hearing examiner of the Bureau of Hearings and Appeals, you may direct any questions you may have to the hearing examiner who notified you of his determination. If the last action was taken by the Appeals Council of the Bureau of Hearings and Appeals, you may direct your questions to the Bureau of Hearings and Appeals, P.O. Box 2518, Washington, D.C. 20013. In any event, please be sure to act promptly so your questions will reach the appropriate office within 10 days. You will be informed in writing regarding the amount of fee your representative is authorized to charge you based on this petition. If your representative is an attorney at law, the law requires that a portion of any past-due benefits payable to you under title II of the Act be used toward the payment of your attorney's fee. In no case will the amount be paid to your attorney directly by the Social Security Administration exceed whichever of the following amounts is the least: (1) 25 percent of the past-due benefits resulting from the claim, (2) the amount of fee authorized, or (3) any amount which you and your attorney may have agreed upon as the fee for his services (as shown in item 4 of the petition on the reverse side). RETAINER FOR LEGAL SERVICES I, Oscar Crum, the undersigned of Martin, Ky., do hereby employ Albert A. Burchett, Attorney at Law, Martin, Ky., to represent me against Dept. of Health, Education and Welfare or the proper defendant to damages or benefits sustained by myself on or about 3-5-70 as a result of silicosis or other occupational disease and I agree to pay said attorney a sum equal to 50% of the past due benefits. By this agreement I bind my heirs and legal representatives and executors. The attorney shall charge nothing if nothing is recovered. I have read over and really understand the above contract. Dated: November 5, 1970. ALBERT A. BURCHETT, Attorney. OSCAR CRUM, Client. |