BRB No. 02-0365 BLA
THELMA BRAENOVICH )
(Survivor of and o/b/o )
STOIN BRAENOVICH) )
)
Claimant-Respondent )
)
v. )
)
CANNELTON INDUSTRIES, )
INCORPORATED/CYPRESS AMAX ) DATE ISSUED:02/12/2003
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order on Remand - Awarding Benefits of Gerald
M. Tierney, Administrative Law Judge, United States Department of Labor.
Mary Z. Natkin, James M. Talbert-Slagle and Jennifer L. Nelson (Legal
Practice Clinic, Washington and Lee University School of Law),
Lexington, Virginia, for claimant.
Kathy L. Snyder and Douglas A. Smoot (Jackson & Kelly), Morgantown, West
Virginia, for employer.
Jeffrey S. Goldberg (Howard Radzely, Acting Solicitor of Labor; Donald
S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation
and Legal Advice), Washington, D.C., for the Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: SMITH, McGRANERY and GABAUER, Administrative Appeals Judges.
SMITH, Administrative Appeals Judge:
Employer appeals the Decision and Order on Remand - Awarding Benefits (98-BLA-1179) of Administrative Law Judge Gerald M. Tierney (the administrative law judge)
on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the
Act).[1] This case is before the Board for the second time. The
Board first considered this case in Braenovich v. Cannelton Industries Inc., BRB No. 00-0727 BLA (Apr. 24,
2001)(unpublished), wherein the Board remanded the case to the administrative law judge. The administrative law judge
awarded benefits by Decision and Order on Remand dated January 18, 2002. Employer again appealed to the Board. By
Order dated August 5, 2002, the Board granted employer's Motion for Oral Argument.[2] Oral Argument was held on October 16, 2002 in Richmond, Virginia.
The pertinent background in this case is as follows: In its 2001 decision, the Board considered employer's
appeal of the administrative law judge's Decision and Order dated March 15, 2000. In that decision, the
administrative law judge found that claimant, the miner's widow, established a material change in conditions under
20 C.F.R. §725.309(d) (2000) based on employer's concession that the miner had simple pneumoconiosis.[3] The administrative law judge also found that the irrebuttable presumption
of total disability and death due to pneumoconiosis was invoked pursuant to 20 C.F.R. §718.304(c) (2000).
Specifically, the administrative law judge determined that the x-ray evidence of record was insufficient to support
a finding of complicated pneumoconiosis under 20 C.F.R. §718.304(a) (2000). The administrative law
judge further found that, although the biopsy and autopsy evidence did not contain any reference to massive
lesions in the miner's lungs, the pathologists of record rendered findings which permitted the administrative law
judge to make an equivalency determination in accordance with the decision of the United States Court of Appeals
for the Fourth Circuit in Double B Mining, Inc. v. Blankenship, 177 F.3d 240 (4th Cir. 1999). The
administrative law judge determined, based on the opinions of Drs. Green and Koenig, that the 1.5 centimeter
lesion observed on autopsy would have produced an opacity of equivalent size, if viewed on a chest x-ray. The
administrative law judge found, therefore, that the irrebuttable presumption of total disability and death due to
pneumoconiosis was invoked under 20 C.F.R. §718.304(c) (2000). Accordingly, the administrative law
judge awarded benefits. In a Supplemental Decision and Order, the administrative law judge granted claimant's
counsel's request for attorney's fees, with the exception of $58.95 in postal expenses.
On appeal, the Board noted the applicability of the United States Court of Appeals for the Fourth Circuit's
decision in Eastern Associated Coal Corp v. Director, OWCP [Scarbro], 220 F.3d 250, 22 BLR
2-93 (4th Cir. 2000), holding that an administrative law judge must weigh together all evidence pertinent to the
issue of complicated pneumoconiosis in determining whether the irrebuttable presumption of total disability and
death due to pneumoconiosis provided at 20 C.F.R. §718.304 is invoked. Because the administrative law
judge did not have the benefit of the Fourth Circuit's July 2000 Scarbro decision at the time he rendered
his Decision and Order in March 2000, the Board vacated the administrative law judge's finding that claimant
established invocation of the irrebuttable presumption of total disability and death due to pneumoconiosis under
20 C.F.R. §718.304(c). The Board thus remanded the case to the administrative law judge for
reconsideration of the medical evidence relevant to this issue in accordance with Scarbro.
The Board next noted its disagreement with employer's argument that the administrative law judge should
have determined whether the appropriate pathological standard for the diagnosis of complicated pneumoconiosis
is one centimeter, as Dr. Green advocated, or two centimeters, as endorsed by Drs. Kleinerman and Naeye. The
Board stated:
As the administrative law judge indicated, in Blankenship, the Fourth Circuit held that
because the irrebuttable presumption found at Section 411(c)(3) of the Act, 30 U.S.C.
§921(c)(3), as implemented by Section 718.304, provides three different ways of diagnosing
complicated pneumoconiosis, the administrative law judge must make an equivalency determination
to make certain that regardless of which diagnostic technique is used, the same underlying condition
triggers the irrebuttable presumption, i.e., if a "massive lesion" is found on biopsy, it would
appear as an opacity greater than one centimeter in diameter on an x-ray.
Thus, the central question does not concern the size of the lesion viewed on biopsy or autopsy; it
concerns the size of the lesion as it would appear on x-ray. Indeed, the court in Blankenship
declined to adopt the two centimeter pathologic standard, noting that the Department of Labor could
engage in a single fact-finding exercise to determine how large a lesion must be in order to appear
on an x-ray as a greater than one centimeter opacity and thereafter promulgate a rule imposing this
finding on all future cases. The Department of Labor has not undertaken this fact-finding mission.
See Blankenship, supra; 65 Fed.Reg. 80,051 (2000) (to be codified at 20 C.F.R.
§718.304). Thus, the administrative law judge did not err in declining to resolve the conflict
between the pathologic standard advocated by Drs. Kleinerman and Naeye and that endorsed by Drs.
Green and Koenig.
Braenovich, slip op. at 4-5.
The Board next found no merit in employer's assertion that in rendering the equivalency determination,
the administrative law judge relied solely upon Dr. Green's qualifications and did not fully address the contrary
opinions of Drs. Kleinerman, Naeye, Fino, Hutchins, Castle and Zaldivar. The Board held that the administrative
law judge had properly reviewed the relevant medical reports and had rationally determined that inasmuch as no
physician of record disputed Dr. Green's assertion that "the 1.5 centimeter lesion [seen on autopsy] would appear
on x-ray as an opacity larger than one centimeter in size," Dr. Green's opinion supported a finding that the miner
had complicated pneumoconiosis. Braenovich, slip op. at 5.[4]
The Board added that the administrative law judge, in rendering this finding, noted correctly that Dr. Kleinerman
acknowledged that the size of an opacity on an x-ray can correlate with the size of a lesion observed on autopsy.
Braenovich, slip op. at 6. The Board further held that the administrative law judge rationally determined
that Dr. Zaldivar did not rule out the possibility that opacity size and lesion size could coincide, but rather stated
that there was no reliable study establishing this fact. Braenovich, slip op. at 5. The Board also upheld
the administrative law judge's crediting of Dr. Green's opinion over Dr. Zaldivar's opinion, based on Dr. Green's
experience regarding the subject of coal workers' pneumoconiosis. Braenovich, slip op. at 5-6. Based
on the foregoing, the Board affirmed the administrative law judge's finding that Dr. Green's opinion, as
corroborated by Dr. Koenig's report, supports a finding of invocation of the irrebuttable presumption pursuant to
20 C.F.R. §718.304(c). The Board instructed the administrative law judge, on remand, to weigh all of the
relevant evidence together in accordance with Scarbro in order to determine whether the irrebuttable
presumption of total disability and death due to pneumoconiosis is invoked.
In a footnote regarding invocation of the irrebuttable presumption of total disability and death due to
pneumoconiosis at 20 C.F.R. §718.304, the Board stated:
Employer also asserts that the administrative law judge was not required to make an equivalency
determination, as the record contains evidence which falls within the categories established by 20
C.F.R. §718.304(a) and (b). We reject this argument, as the United States Court of Appeals
for the Fourth Circuit has not indicated that the holdings in Eastern Associated Coal Corp. v.
Director, OWCP [Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000), and
Double B Mining, Inc. v. Blankenship, 177 F.3d 240 (4th Cir. 1999), are limited to cases
in which there is no x-ray, biopsy, or autopsy evidence.
Braenovich, slip op. at 5.
Lastly, the Board found merit in employer's arguments challenging the administrative law judge's attorney
fee award and vacated the fee award because the administrative law judge's findings did not comport with the
Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C. §554(c)(2), 33
U.S.C. §919(d) and 30 U.S.C. §932(a).
In his Decision and Order on Remand which is the subject of the instant appeal, the administrative law
judge awarded benefits and an attorney fee. Pursuant to the Board's instructions on the merits of the claims, the
administrative law judge initially addressed the requirements of Scarbro. The administrative law judge
found:
Though the preponderance of the chest x-ray evidence itself did not establish the existence of
pneumoconiosis, [20 C.F.R.] §718.304(a) provided the benchmark upon which the
equivalency determination was made - an opacity on a chest x-ray greater than the one centimeter.
The chest x-ray evidence represented the initially-best available type of evidence to determine the
presence or the absence of pneumoconiosis. Then, autopsy evidence became available. Autopsy
evidence has long been held as a more reliable indicator as to the presence or absence of
pneumoconiosis. Terlip v. Director, OWCP, 8 BLR 1-363 (1985). Though the autopsy
evidence, on its face, did not diagnose massive lesions or the existence of complicated
pneumoconiosis at [20 C.F.R.] §718.304(b), it provided the measurements to compare against
the benchmark set in [20 C.F.R.] §718.304(a). I found that the preponderance of the evidence
supported a conclusion that the 1.5 centimeter lesion observed on autopsy would have produced an
opacity of equal size if viewed on a chest x-ray.
In weighing the different types of evidence at [20 C.F.R.] §§718.304(a)-(c), the more
probative autopsy evidence diminished the weight of the preponderance of the chest x-ray evidence.
The autopsy evidence bore out the minority opinion of the chest x-ray evidence. It supported the
interpretation of board-certified radiologist Dr. Patel. Thus, I relied on the autopsy evidence over
the preponderance of the chest x-ray evidence. Inherent in reaching my ultimate determination that
the [20 C.F.R.] §718.304 irrebuttable presumption was invoked, I used [20 C.F.R.]
§718.304(c) as a mechanism by which [to] make the equivalency determination, to compare
the measurements provided by the autopsy evidence at [20 C.F.R.] §718.304(b) to the
benchmark set at [20 C.F.R.] §718.304(a). The physician opinion evidence, of course,
provided the backdrop information to flesh out the issues and reach this determination. The Benefits
Review Board affirmed my finding that Dr. Green's opinion, as corroborated by Dr. Koenig's
report, supported a determination that the miner had complicated pneumoconiosis pursuant to [20
C.F.R.] §718.304(c).
Upon weighing all of the evidence relevant to the existence of complicated pneumoconiosis
together, I find that the [20 C.F.R.] §718.304 irrebuttable presumption is invoked. I continue
to find that the [20 C.F.R.] §718.203(b) presumption is not rebutted. I continue to find that
Claimant is entitled to benefits in both claims.
Decision and Order on Remand at 2-3.
The administrative law judge also awarded an attorney fee to claimant's
counsel. Pursuant to the Board's remand instructions, the administrative
law judge provided an explanation for his finding that counsel's $200 hourly
rate was not excessive. The administrative law judge next addressed
objections to the fee petition which he previously had failed to do. The
administrative law judge ultimately disallowed a total of 15.75 hours from
the 68 hours claimant's counsel requested. He indicated that this
disallowance translated into a deduction of $3,150.00 from the $17,682.02
previously awarded. The administrative law judge thus modified the attorney
fee award to $14,532.02. Decision and Order on Remand at 6.
On appeal, employer contends that the administrative law judge committed reversible error in determining
that the evidence of record is sufficient to invoke the irrebuttable presumption of total disability and death due to
pneumoconiosis under 20 C.F.R. §718.304. Employer also alleges error in the administrative law judge's
award of attorney fees. Claimant and the Director, Office of Workers' Compensation Programs (the Director),
seek affirmance of the decision below, arguing that the administrative law judge's decision is rational, in
accordance with law and supported by substantial evidence.
The Board's scope of review is defined by statute. If the
administrative law judge's findings of fact and conclusions of law are
supported by substantial evidence, are rational, and are consistent with
applicable law, they are binding upon this Board and may not be disturbed.
33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,
380 U.S. 359 (1965).
Administrative Law Judge's Equivalency Determination
We first address employer's contention that it was irrational for the administrative law judge to find
invocation established under 20 C.F.R. §718.304(c), based on his determination that the preponderance of
the evidence supports the conclusion that the 1.5 centimeter lesion observed on autopsy would have produced an
opacity of equivalent size if viewed on a chest x-ray, see Decision and Order on Remand at 2-3, since he
also found that the x-ray evidence and the autopsy evidence did not establish the existence of an opacity of similar
size under 20 C.F.R. §718.304(a) and (b). Employer argues that in this case, in contrast to
Blankenship, multiple chest x-ray interpretations are available, which the administrative law judge
determined do not show opacities of sufficient size to support a finding of complicated pneumoconiosis. Employer
submits that the lesions found on autopsy would not have shown as opacities greater than one centimeter on x-ray.
Employer argues, "If the lesions found on autopsy, theoretically, would have showed' as large opacities, the x-ray
interpretations available would have' been positive for complicated pneumoconiosis." Employer's Brief at 8-9.
Employer continues that the administrative law judge's determination that the autopsy evidence ultimately "bore
out the minority opinion of the chest x-ray evidence" and supported the July 31, 1998 x-ray reading of Dr. Patel
which was positive for complicated pneumoconiosis, see Decision and Order on Remand at 2-3, is
irrational and cannot be reconciled with the administrative law judge's finding that Dr. Patel's positive reading
was outweighed by the preponderance of the x-ray evidence.
In response, claimant contends that the administrative law judge properly found that the 1.5 centimeter
lesion observed on autopsy would have produced an opacity of equal size if viewed on a chest x-ray, based on his
crediting of Dr. Green's opinion that the size of an opacity on an x-ray is equivalent to its size in real life.
See Claimant's Exhibit 1. Claimant also notes Dr. Kleinerman's testimony that he agreed with Dr. Green
that there is a one-to-one correlation between the size of an opacity on x-ray and on autopsy. See
Director's Exhibit 8 at 49. Claimant further argues that the administrative law judge rationally relied on the
autopsy evidence, over the preponderance of the x-ray evidence, to find invocation of the irrebuttable presumption.
The Director contends that the administrative law judge's equivalency determination "is not nullified" because
he previously concluded that the x-ray evidence, viewed in isolation, does not support invocation of the
irrebuttable presumption. The Director continues:
Although the sequence in which the [administrative law judge] evaluated the evidence is confusing,
his global interpretation of the evidence is entirely rational. It makes sense to conclude that the
autopsy findings, and the opinion of Dr. Green, "bore out" Dr. Patel's finding of Category A
pneumoconiosis on the July 1996 x-ray and that the well-qualified doctors who found that x-ray
negative were simply wrong. "Evidence under one prong can diminish the probative force of
evidence under another prong if the two forms of evidence conflict." Eastern Associated Coal
Corp. [Scarbro], 220 F.3d at 256. The [administrative law judge's] assessment of the
x-ray evidence is reasonable given that autopsy evidence is generally more probative than x-ray
evidence regarding the presence and extent of pneumoconiosis. Urgolites v. Bethenergy Mines,
Inc., 17 BLR 1-20, 1-22 n.4 (1992).
Director's Brief at 9-10.
Employer's contention that the administrative law judge's equivalency determination is irrational lacks
merit. Substantial evidence supports the administrative law judge's finding that the 1.5 centimeter lesion observed
on autopsy, which he determined to be the more probative evidence, see Decision and Order on Remand
at 2, would have produced an opacity of equivalent size if viewed on x-ray. This equivalency finding by the
administrative law judge is not compromised by his additional findings that the x-ray evidence and the autopsy
evidence are insufficient to establish invocation of the irrebuttable presumption at 20 C.F.R. §718.304.
Specifically, the administrative law judge's weighing of the evidence is consistent with the Fourth Circuit's
statement in Scarbro that "[e]vidence under one prong can diminish the probative force of evidence under
another prong if the two forms of evidence conflict." See Scarbro, 220 F.3d 250, 256, 22 BLR 2-93, 2-101. The administrative law judge's weighing of the evidence under 20 C.F.R. §718.304 is also consistent
with the Fourth Circuit's mandate in Blankenship that the administrative law judge is bound to perform
equivalency determinations to make certain that, regardless of which diagnostic technique is used, the same
underlying condition triggers the irrebuttable presumption. See Blankenship, 177 F.3d 240, 243. We,
therefore, reject employer's assertion that the administrative law judge's equivalency determination is irrational.
Employer further asserts that the administrative law judge's consideration of the conflicting medical
opinions of Drs. Kleinerman, Naeye, Hutchins, Fino, Morgan, Castle and Zaldivar, on the one hand, and the
opinions of Drs. Green and Koenig, on the other hand, is inadequate. Specifically, employer argues that the
administrative law judge "avoided the necessary analysis of whether the one-centimeter or the two-centimeter
criteria [sic] is the appropriate minimum requirement for establishing complicated pneumoconiosis." Employer's
Brief at 11. Employer argues that, notwithstanding the Fourth Circuit's refusal to adopt the two-centimeter
pathologic standard in Blankenship, the issue must be addressed in this case as the administrative law
judge failed to resolve the conflict between the pathologic standard for complicated pneumoconiosis advocated
by Drs. Kleinerman and Naeye (two centimeters in diameter) and that endorsed by Drs. Green and Koenig (one
centimeter in diameter.)
In response, claimant notes that the Board previously rejected employer's argument that the administrative
law judge should have determined the appropriate pathological standard for a diagnosis of complicated
pneumoconiosis. See Braenovich, slip op. at 4. Claimant and the Director note that the Fourth Circuit in
Blankenship declined to impose the two centimeter pathologic standard on the Board. Claimant's Brief
at 5, Director's Brief at 8.
The Board previously rejected employer's argument that the administrative law judge should have
determined the appropriate pathological standard, noting that the Fourth Circuit in Blankenship had
declined to impose the two centimeter pathologic standard on the Board. See Braenovich, slip op. at 4.
The Board concluded, therefore, that the administrative law judge did not err in declining to resolve the conflict
between the pathologic standard advocated by Drs. Kleinerman and Naeye and that endorsed by Drs. Green and
Koenig. Id. at 5. Consequently, the issue of the appropriate pathological standard was not before the
administrative law judge following the Board's remand of the case. In the instant appeal, employer advances no
reason why the Board should revisit its holding that the administrative law judge did not err in declining to resolve
the conflict between the pathologic standard advocated by Drs. Kleinerman and Naeye and that endorsed by Drs.
Green and Koenig. Accordingly, the Board's holding constitutes the law of the case and will not be disturbed.
Brinkley v. Peabody Coal Co., 14 BLR 1-147 (1990); Bridges v. Director, OWCP, 6 BLR 1-988
(1984).
Employer further contends that the administrative law judge failed to specify a reason for his reliance on
the opinion of Dr. Green, as supported by the opinion of Dr. Koenig, to find invocation of the interim presumption
under 20 C.F.R. §718.304(c). Employer asserts that the administrative law judge failed to determine
whether the opinions of Drs. Green and Koenig are reasoned and documented, and to weigh those opinions against
the contrary opinions of Drs. Kleinerman, Naeye, Hutchins, Zaldivar, Castle, Fino and Morgan.
In response, claimant contends that in Braenovich, the Board upheld the administrative law judge's
reliance on Dr. Green's opinion, as supported by Dr. Koenig's opinion, in determining that claimant
established invocation of the irrebuttable presumption under 20 C.F.R. §718.304(c), see
Braenovich, slip op. at 6, and that the Board need not address the issue again as it was not part of the Board's
remand order. Claimant argues, alternatively, that the administrative law judge's finding of invocation is fully
explained, supported by substantial evidence, and in accordance with law. The Director contends that the
administrative law judge's evidentiary findings are reasonable and supported by substantial evidence. The
Director states:
Both Dr. Klapproth, the autopsy prosector, and Dr. Green found lesions larger than one centimeter
in the miner's lung tissue. Only Dr. Naeye stated that the miner's autopsy did not reveal a lesion
greater than one centimeter in diameter, finding instead a conglomeration of nodules, the largest of
which measured .9 centimeters. (DX 32). The [administrative law judge] accurately found,
however, that Dr. Naeye's opinion did not disprove the existence of a nodule larger than one
centimeter in the miner's lungs. The [administrative law judge] noted that Cannelton's expert Dr.
Kleinerman acknowledged that a tissue sample shrinks by about 10-15% when prepared for a slide
and that the lesion viewed by Dr. Naeye had been at least one centimeter in size prior to preparation
(EX 8 at 50). Consequently, the [administrative law judge] concluded that Dr. Naeye's finding was
not an accurate assessment of the true size of the miner's lung nodules. Thus, the [administrative
law judge] permissibly found that the miner had a lesion measuring greater than one centimeter in
diameter based on the findings of Dr. Klapproth and Dr. Green.
Director's Brief at 7-8.
We reject employer's contention. The Board previously addressed employer's arguments challenging the
administrative law judge's weighing of the relevant evidence. The Board specifically found that employer's
contention, that the administrative law judge relied solely upon Dr. Green's professional qualifications and did
not fully address the contrary opinions of Drs. Kleinerman, Naeye, Fino, Hutchins, Castle and Zaldivar, lacked
merit. See Braenovich, slip op. at 5. Ultimately, the Board determined that the administrative law judge
rationally accorded determinative weight to Dr. Green's opinion, as corroborated by Dr. Koenig's opinion.
Id. at 6. The administrative law judge on remand noted the Board's affirmance of the administrative law
judge's finding that Dr. Green's opinion, as corroborated by Dr. Koenig's opinion, supported a determination that
claimant established invocation of the irrebuttable presumption at 20 C.F.R. §718.304(c). Decision and
Order on Remand at 3. Following the Board's instructions, the administrative law judge then made findings
pursuant to Scarbro, determining that the irrebuttable presumption at 20 C.F.R. §718.304 was
invoked. The administrative law judge concluded, therefore, that he "continue[d] to find that claimant is entitled
to benefits in both claims."[5] Id. We thus reject employer's
assertion that the administrative law judge erred in according determinative weight to the medical opinion of Dr.
Green, as corroborated by Dr. Koenig's opinion.
Invocation of the Irrebuttable Presumption at 20 C.F.R.
§718.304
We next address employer's contention that where, as in the instant case, the administrative law judge finds
that the x-ray evidence and autopsy (or biopsy) evidence is insufficient to establish invocation of the irrebuttable
presumption under 20 C.F.R. §718.304(a) and (b) respectively, invocation cannot be established under 20
C.F.R. §718.304(c). In this regard, employer argues that the regulation at 20 C.F.R. §718.304(c) is
limited to certain types of medical evidence, including CT or PET scan evidence or "other medical diagnostic
techniques which may become available to us in the future in order to diagnose pneumoconiosis." Oral Argument
Transcript at 10. Employer asserts that complicated pneumoconiosis or massive lesions cannot be diagnosed by
physical examination alone and thus, a physician's opinion, without the appropriate underlying diagnostic testing,
is insufficient to establish invocation under 20 C.F.R. §718.304(c). Id. at 9-11, 28, 33, 37-38, 43-44. Employer, therefore, contends that the administrative law judge's finding of invocation under 20 C.F.R.
§718.304(c) in the instant case cannot stand because he relied on medical opinion evidence. Employer
further contends that Dr. Green's medical opinion, relied upon by the administrative law judge to find invocation
of the irrebuttable presumption, should have been considered under 20 C.F.R. §718.304(b), as it was based
primarily on Dr. Green's analysis of the autopsy evidence.
In response, claimant argues that the administrative law judge properly found that invocation was
established under 20 C.F.R. §718.304(c), and disagrees with employer's argument that the administrative
law judge should have considered Dr. Green's opinion under 20 C.F.R. §718.304(b). The Director contends
that the administrative law judge's evaluation of the evidence and resulting finding of invocation of the irrebuttable
presumption under 20 C.F.R. §718.304(c) is consistent with the Act and controlling precedent interpreting
the regulation at 20 C.F.R. §718.304. The Director further contends that while "a medical report relying
on autopsy or biopsy findings would [] properly be considered under subcategory B,'" it is "irrelevant" whether
the administrative law judge should have considered the medical opinion evidence under 20 C.F.R.
§718.304(b) or under 20 C.F.R. §718.304(c) because the administrative law judge must ultimately
consider all the relevant evidence of record. Oral Argument Transcript at 26-27, 42.
We find no error in the administrative law judge's finding on remand that claimant established invocation
of the irrebuttable presumption of total disability and death due to pneumoconiosis under 20 C.F.R.
§718.304. The Board previously held that the administrative law judge properly relied on Dr. Green's
undisputed opinion and on Dr. Koenig's corroborating opinion to find invocation of the irrebuttable presumption.
Braenovich, slip op. at 6. We are not persuaded by employer's argument that the administrative law judge
committed reversible error in finding invocation under 20 C.F.R. §718.304(c) instead of under 20 C.F.R.
§718.304(b). Employer's argument is of no consequence as substantial evidence in the record supports the
administrative law judge's determination on remand that claimant established invocation of the irrebuttable
presumption at 20 C.F.R. §718.304 pursuant to Scarbro and Blankenship.[6] See generally Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
Based on the foregoing, we affirm the administrative law judge's finding of invocation of the irrebuttable
presumption at 20 C.F.R. §718.304 and of claimant's entitlement to benefits.
Administrative Law Judge's Modified Attorney Fee Award
Employer also challenges the administrative law judge's award of a modified attorney fee on remand and
argues that it is arbitrary, capricious and not in accordance with law. In response, claimant urges the Board to
affirm the administrative law judge's attorney fee award, and argues that employer has raised no error of law or
abuse of discretion to support vacating or reversing any portion of the administrative law judge's modified attorney
fee award on remand. The Director did not respond on this issue.
The Board previously held that the administrative law judge did not comply with the requirements of the
APA in rendering his findings regarding the reasonableness of the hourly rate requested ($200) and the necessity
of the services performed. The Board agreed with employer's contention that the administrative law judge "erred
in failing to address all of its specific objections to the fee petition and in ordering employer to compensate counsel
for the performance of clerical or paraprofessional activities that should have been billed at an hourly rate or not
at all." Braenovich, slip op. at 6. The Board thus vacated the administrative law judge's determination
that the $200 hourly rate requested by counsel is reasonable. The Board rejected, however, employer's assertion
that the administrative law judge was required to compare the hourly rate requested to the typical hourly rate
charged in the geographic area in which counsel practices, when determining the appropriate hourly rate. The
Board noted that the administrative law judge may consider this factor, but is not required to do so. Id.
at 7. The Board further held that employer was correct in alleging that the administrative law judge did not
address employer's objections to the five hours counsel spent preparing for Dr. Zaldivar's deposition and the 23.25
hours counsel spent drafting claimant's Closing Argument. The Board also held that the administrative law judge
erred in finding that the clerical services identified in the fee petition were compensable because they were
performed by attorneys. The Board noted that traditional clerical duties, whether preformed by clerical employees
or counsel, are not properly compensable services for which separate billing is permissible, but rather, the
performance of such duties must be included as part of overhead in setting the hourly rate. Thus, the Board
vacated the administrative law judge's findings and instructed the administrative law judge to reconsider the fee
petition on remand, if he again determined that claimant and the miner are entitled to benefits. Id. at 7-8.
On remand, the administrative law judge explained, by reference to the factors set forth at 20 C.F.R.
§725.366(b), the reasons why he upheld the requested hourly rate of $200, notwithstanding employer's
argument that it was not reasonable. Decision and Order on Remand at 3. The administrative law judge also
determined that the five hours of compensation requested by counsel in preparation for Dr. Zaldivar's deposition
was not excessive as the entry actually covered more than that preparation. Specifically, the administrative law
judge found that the five hours included compensation for related research, a phone call to "NIOSH requesting
ALFORD protocol," review of certain medical opinions, a general review of the file, and the drafting of questions.
Decision and Order on Remand at 3-4. The administrative law judge further upheld compensation for the twenty-three and one-quarter hours counsel spent drafting her closing argument, determining that counsel accounted fully
for the time spent. The administrative law judge did find excessive, however, counsel's charge of seven hours for
"drafting sections [of Argument] on Dr. Hutchins, coalescence, negative x-rays, and modification." Decision and
Order on Remand at 4. The administrative law judge determined that, based on the subject matter, an allowance
of two hours would be reasonable.
The administrative law judge next disallowed compensation for the three and one-quarter hours claimant's
counsel charged for co-counsel, finding that counsel did not establish the necessity of associating with co-counsel.
The administrative law judge also deducted the following charges for clerical work: one-half hour for copying and
serving closing argument; one-quarter hour for the October 3, 1997 mailing of the retainer; one and one-half hours
for the February 20,1998 indexing of the Director's exhibits; one-quarter hour for the April 7, 1997 mailing of
interrogatory responses; one-quarter hour for the April 14, 1999 fax to Dr. Koenig; one-half hour and one-quarter
hour charged for the serving of claimant's exhibits on April 26, 1999 and April 29, 1999, respectively, and the
one-half hour on May 18, 1999 for labeling and indexing exhibits in preparation for the hearing. Based on the
reasonableness of the work performed, considered against the time charged, the administrative law judge's reduced
the total of seven and one-half hours charged on April 16, 1998 and April 20, 1998 by three and one-half hours,
finding four hours to be a more reasonable request. In sum, the administrative law judge disallowed a total of
fifteen and three-quarters hours from the sixty-eight hours for which claimant's counsel initially requested
compensation. He indicated that this disallowance translates to a $3,150 deduction from the $17,682.02 fee
initially awarded. The administrative law judge thus modified the fee award to $14,532.02.
Employer contends that while the administrative law judge properly deducted fifteen and three-quarters
hours from the sixty-eight hours claimed by counsel, the administrative law judge "did not go far enough."
Employer's Brief at 16. Employer asserts that the administrative law judge failed to review or comment on a
number of entries in the fee petition. Employer offers, as an example, the four and one-half hours counsel claimed
on March 26, 1999 and April 7, 1999 for work with claimant to draft responses to interrogatories and to mail them.
Employer argues that four and one-half hours is excessive for such work. Moreover, employer asserts that Ms.
Natkin did not sign the letter of April 7, 1999, but that it was signed by Allison Driver, a student caseworker, and
by Brian Murchison, as the supervising attorney. Employer also asserts that Brian Murchison's professional
credentials are not of record. Employer thus argues that counsel billed for someone else's work and employer
submits that because the record does not show how much of the four and one-half hours claimed is for work
actually performed by Ms. Natkin, the administrative law judge should have disallowed the four and one-half
hours. Employer also contends that the administrative law judge's reasoning for allowing time billed on December
9, 1998, February 22, 1999, March 25, 1999 and March 31, 1999 for counsel's letters to Drs. Green and Koenig,
was irrational, arbitrary and capricious.
In response, claimant contends that employer improperly raises new objections to the fee petition, including
(1) its objection to the amount of time counsel spent working with claimant to respond to employer's
interrogatories and requests for production of documents; (2) its assertion that another attorney signed the April
7, 1999 "transmissal letter" after Ms. Natkin reviewed the evidence and prepared the interrogatories, and (3) its
assertion that the credentials of "Professor Murchison (whose time was not billed) were not included in the fee
petition." Claimant's Response Brief at 11. Since employer failed to raise these objections below, claimant asserts
that it is barred from raising them now in this second appeal to the Board.
All objections to the fee petition must be raised prior to the fee award. Abbott v. Director, OWCP,
13 BLR 1-15 (1989). We, therefore, decline to address employer's objections to the fee petition as the record
reveals that they were not specifically raised before the administrative law judge. See Employer's
Objection to Attorney Fee Petition dated April 11, 2000.
Employer next contends that, despite the Board's remand instruction, the administrative law judge did not
explain adequately why he awarded claimant's counsel a $200 hourly rate. Employer submits that the $200 hourly
rate awarded exceeds both the usual and reasonable hourly rates and constitutes an abuse of the administrative law
judge's discretion. Employer also asserts that counsel did not offer any evidence of the customary rates charged
by attorneys in counsel's community and that the administrative law judge made no findings in this regard. In
response, claimant contends that the administrative law judge's finding that counsel's requested hourly rate was
appropriate is in accordance with the regulation at 20 C.F.R. §725.366(b), supported by the evidence, and
is not erroneous. Claimant contends that employer's assertion that the requested hourly rate is significantly higher
than the usual hourly rate awarded to attorneys in federal black lung cases, is unsupported by any evidence.
Claimant further notes that the Board explicitly rejected employer's assertion that the administrative law judge
was required to compare the hourly rate requested by counsel to the typical hourly rate charged in the
geographic area in which counsel practices, when determining the appropriate hourly rate. Braenovich,
slip op. at 7. Claimant argues that the Board should thus decline to entertain employer's assertion. Claimant
further submits that the hourly rate requested by counsel in this case is appropriate and reasonable in light of the
valuable service counsel renders to miners and their widows at the Legal Practice Clinic. Thus, claimant seeks
affirmance of the modified fee awarded by the administrative law judge on remand.
Employer's contentions lack merit. The administrative law judge on remand fully explained, by reference
to the factors set forth at 20 C.F.R. §725.366(b), the reasons why he upheld the requested hourly rate of
$200 in the face of employer's objection. Specifically, the record shows that the administrative law judge
considered the "high quality" of counsel's representation in this case, which led to the successful prosecution of
these claims. In addition, the administrative law judge considered counsel's professional credentials and
experience, including work as a law professor and at a legal clinic, and the complex medical and legal issues
presented in this case, requiring claimant to establish "complicated pneumoconiosis" and requiring "research of
recent case law involving the concept of an equivalency determination." Decision and Order on Remand at 3.
Further, the Board previously rejected employer's assertion that the administrative law judge was required
to compare the hourly rate requested by counsel to the typical hourly rate charged in the geographic area in which
counsel practices when determining the appropriate hourly rate. Braenovich, slip op. at 7. We,
therefore, reject employer's assertion that the administrative law judge did
not adequately explain his reasons for determining that the requested hourly
rate was reasonable and appropriate in this case.[7]
Based on the foregoing, we affirm the administrative law judge's
modified attorney fee award on remand of $14,532.02. We thus affirm the
administrative law judge's disallowance of fifteen and three-quarters hours
from the sixty-eight hours claimed by counsel and his subtraction of
$3,150.00 from the original $17,682.02 fee award.
Accordingly, the administrative law judge's Decision and Order on Remand
- Awarding Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
I concur.
REGINA C. McGRANERY
Administrative Appeals Judge
GABAUER, Administrative Appeals Judge, concurring:
I concur in the majority's decision to affirm the administrative law
judge's award of benefits and to affirm the administrative law judge's
modified attorney fee award. I disagree, however, with the majority's
position that the administrative law judge did not err by finding invocation
of the irrebuttable presumption established under 20 C.F.R. §718.304(c)
instead of under 20 C.F.R. §718.304(b). The medical evidence relied
upon by the administrative law judge to find invocation of the irrebuttable
presumption at 20 C.F.R. §718.304 in this case, namely the medical
opinion of Dr. Green, as corroborated by Dr. Koenig's opinion, establishes
that the 1.5 centimeter lesion observed on the miner's autopsy would have
produced an opacity of equivalent size if viewed on x-ray. Because this
medical evidence involves the interpretation of the autopsy findings,
invocation is properly established under 20 C.F.R. §718.304(b) and not
under 20 C.F.R. §718.304(c), as the administrative law judge found.
See 20 C.F.R. §718.304(b).
Nonetheless, I agree that the administrative law judge properly found
invocation of the irrebuttable presumption at 20 C.F.R. §718.304
established in this case. The administrative law judge properly found that
substantial autopsy evidence supports such a finding. See Claimant's
Exhibits 1, 4. He properly considered all the relevant evidence of record
in a manner consistent with the mandates of the United States Court of
Appeals for the Fourth Circuit in Eastern Associated Coal Corp v. Director, OWCP
[Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000), Double B Mining, Inc. v. Blankenship,
177 F.3d 240 (4th Cir. 1999), and Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162
(4th Cir. 2000). Specifically, the administrative law judge resolved the
conflicting x-ray evidence, properly finding that the weight of the x-ray
evidence is negative for the existence of complicated pneumoconiosis under
20 C.F.R. §718.304(a). The administrative law judge then determined
that the weight of the "more probative autopsy evidence" diminished the
weight of the x-ray evidence. Decision and Order on Remand at 2. The
administrative law judge concluded, "Upon weighing all of the evidence
relevant to the existence of complicated pneumoconiosis together, I find
that the [20 C.F.R.] §718.304 irrebuttable presumption is invoked."
Id. at 3. Based on the foregoing, I agree with my colleagues that
the administrative law judge's ultimate finding of invocation of the
irrebuttable presumption at 20 C.F.R. §718.304 in this case was proper.
PETER A. GABAUER, Jr.
Administrative Appeals Judge
To Top of Document
Footnotes.
1) The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as
amended. These regulations became effective on January 19, 2001, and are
found at 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations to
the regulations, unless otherwise noted, refer to the amended
regulations.
Back to Text
2) The Board specified the following issues for the Oral Argument:
1. Whether the provisions of 20 C.F.R. §718.304(c) are applicable where there is evidence
available under both 20 C.F.R. §718.304(a) and (b)?
2. Assuming 20 C.F.R. §718.304(c) is applicable where there is evidence available under 20
C.F.R. §718.304(a) and (b), is the administrative law judge's finding of complicated
pneumoconiosis pursuant to 20 C.F.R. §718.304(c) in the instant case rational and supported
by substantial evidence.
Board's Order dated August 5, 2002.
Back to Text
3) The miner's October 10, 1979 application for benefits was
denied on August 21, 1980 based on the miner's failure to establish any
element of entitlement. Director's Exhibit 46. The miner's second claim,
filed June 18, 1996, was denied on September 17, 1996 based on the miner's
failure to establish a material change in conditions under 20 C.F.R.
§725.309 (2000). Director's Exhibit 45. The miner died on December
6, 1996. Director's Exhibit 7. Claimant, the miner's surviving spouse,
filed an application for survivor's benefits on February 19, 1997 and
requested modification of the denial of the miner's claim under 20 C.F.R.
§725.310 (2000). Director's Exhibits 1, 45.
Back to Text
4) Dr. Green specifically explained his disagreement with
pathological standards requiring a two centimeter lesion for a diagnosis of
pulmonary massive fibrosis where radiological standards properly require a
one centimeter in diameter lesion. He opined, "There are now good studies
and the advent of CT scans which show that the size [of a nodule seen] on
the x-ray is equivalent to the size in real life. Thus today there is no
reason to have two differing standards, one based on radiology, the other
on pathology." Claimant's Exhibit 1. Dr. Green further opined that there
is a ten to fifteen percent shrinkage of tissue when it is cut and prepared
for examination. Dr. Green added:
The lesion that I measured as 1.1 cm across was, in fact, only part
of a larger lesion, presumably the 1.5 cm lesion documented by the
pathologist at autopsy. Finally, with regard to the pathologic
definition of [progressive massive fibrosis], it has always been
my policy , now and when I was Head of Pathology at the National
Institute for Occupational Safety and Health in Morgantown, West
Virginia, to diagnose lesions measuring greater than 1 cm in
diameter pathologically as progressive massive fibrosis. I did
this to be in accord with the radiological definition. Hence it
is my view that Mr. Braenovich had [progressive massive fibrosis]
as defined either radiologically or pathologically.
Id.
Back to Text
5) Employer argues that the administrative law judge did not weigh the relevant evidence
together, but instead considered the evidence at 20 C.F.R. §718.304(a), (b) and (c) separately. By analogy,
employer cites to an administrative law judge's duty to consider all relevant evidence at 20 C.F.R. §718.202
under Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000) and all relevant
evidence at 20 C.F.R. §718.204 under Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195 (1986),
aff'd on recon., 9 BLR 1-236 (1987)(en banc). Claimant and the Director, Office of Workers'
Compensation Programs (the Director), contend that the administrative law judge properly considered all relevant
evidence under 20 C.F.R. §718.304 and fully explained his findings. We agree with claimant and the
Director. The record refutes employer's argument. The administrative law judge specifically weighed all relevant
evidence together in determining on remand that the irrebuttable presumption at 20 C.F.R. §718.304 is
invoked, see Decision and Order on Remand at 1-3. Eastern Associated Coal Corp. v. Director,
OWCP [Scarbro], 220 F.3d 250, 256, 22 BLR 2-93, 2-100 (4th Cir. 2000); Double B Mining, Inc.
v. Blankenship, 177 F.3d 240, 242-243 (4th Cir. 1999).
Back to Text
6) We hold, moreover, that the administrative law judge's
findings on remand are consistent with the decision of the United States
Court of Appeals for the Fourth Circuit in Blankenship, wherein the
court instructed the administrative law judge on remand to make an
equivalency determination based on the biopsy evidence. See
Blankenship, 177 F.3d at 244.
Back to Text
7) Employer contends that this case has reached "administrative gridlock" which may
necessitate reassignment to a different administrative law judge. Employer's contention is rendered moot by our
decision to affirm the decision below.
Back to Text
NOTE: This is a PUBLISHED BLA Document.
To Top of Document