BRB No. 97-1393 BLA
PEARL M. JONES )
(Widow of NORMAN JONES) )
)
Claimant-Respondent )
)
v. )
)
BADGER COAL COMPANY ) DATE ISSUED: 11/22/1994
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
) DECISION and ORDER
Party-in-Interest ) EN BANC
Appeal of the Decision and Order - Awarding Benefits and the
Supplemental Decision and Order Granting Attorney Fees of Gerald M.
Tierney, Administrative Law Judge, United States Department of Labor.
Robert F. Cohen Jr. (Cohen, Abate & Cohen, L.C.), Fairmont, West
Virginia, for claimant.
William S. Mattingly (Jackson & Kelly), Morgantown, West Virginia, for
employer.
Helen H. Cox (Judith E. Kramer, Deputy Solicitor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and 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: HALL, Chief Administrative Appeals Judge, SMITH, BROWN and
McGRANERY, Administrative Appeals Judges, and NELSON, Acting
Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order awarding benefits and the Supplemental
Decision and Order Granting Attorney Fees (95-BLA-0050) of Administrative Law Judge
Gerald M. Tierney on a survivor's 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). The administrative law judge found that the
weight of the evidence established the existence of pneumoconiosis arising out of
coal mine employment pursuant to 20 C.F.R. §§718.202(a)(4), 718.203(b),
and death due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
Accordingly, benefits were awarded.
Subsequent to the issuance of the administrative law judge's Decision and Order, claimant's counsel submitted a
fee petition to the administrative law judge, requesting $20,960.26 for 88 hours of services at $230 per hour, and $720.26
in expenses. Thereafter, employer filed objections and claimant replied to employer's objections. In a Supplemental
Decision and Order Granting Attorney Fees, the administrative law judge reduced the hourly rate to $200, and disallowed
$146.88 in expenses. Accordingly, the administrative law judge awarded claimant's counsel a fee of $18,173.38,
representing 88 hours of services at $200 per hour, plus $573.38 in expenses.
On appeal, employer challenges the administrative law judge's weighing of the
evidence at Sections 718.202 and 718.205(c). Claimant responds, urging affirmance
of the award of benefits, and argues that because all of the criteria for invoking
the doctrine of collateral estoppel were met, the administrative law judge should
have granted claimant's motion to estop employer from relitigating the issue of the
existence of occupational pneumoconiosis, which was previously established in the
living miner's claim. Employer replies, arguing that the doctrine of collateral
estoppel is inapplicable and that claimant waived the issue by failing to file a
cross-appeal herein. The Director, Office of Workers' Compensation Programs (the
Director), submitted a limited response, urging the Board to reject employer's
arguments regarding the proper methodology for weighing evidence at Section
718.202, but declining to address the merits of this case. The Director
additionally agrees with claimant's argument that claimant was not required to file
a cross-appeal to preserve the issue of collateral estoppel, and asserts that the
administrative law judge should have addressed claimant's motion and determined
whether the doctrine of collateral estoppel was applicable under the facts of this
case. Pursuant to the Board's Order dated May 6, 1998, oral argument was held in
this case on June 18, 1998, in Charleston, West Virginia.
Employer also challenges the number of hours and the hourly rate approved by
the administrative law judge. Claimant responds, urging affirmance of the
administrative law judge's fee award.
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 by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Turning first to the procedural issue, we reject employer's argument that the
issue of collateral estoppel was waived by claimant's failure to file a cross-appeal pursuant to 20 C.F.R. §802.201(a)(2). Claimant preserved the issue
through the arguments in her response brief, which, under the applicable
regulation, are limited to those which respond to arguments raised in petitioner's
brief and to those in support of the decision below. See 20 C.F.R.
§802.212(b). Inasmuch as claimant was satisfied with the result of the
administrative law judge's decision, she was not required to file a cross-appeal
in order to make arguments which were not in support of his reasoning but which
supported the result reached by the administrative law judge, i.e., an award
of benefits based on findings of the existence of pneumoconiosis arising out of
coal mine employment and death due to pneumoconiosis. See Malcomb v. Island
Creek Coal Co., 15 F.3d 364, 18 BLR 2-113 (4th Cir. 1994); Garcia v.
Director, OWCP, 869 F.2d 1413, 12 BLR 2-231 (10th Cir. 1989); Dalle Tezze
v. Director, OWCP, 814 F.2d 129, 10 BLR 2-62 (3d Cir. 1987). Claimant
initially filed a Motion for Summary Decision before the administrative law judge
raising the applicability of the doctrine of collateral estoppel. The
administrative law judge, however, failed to determine whether, under the facts of
this case, employer was precluded from relitigating the issue of the existence of
occupational pneumoconiosis by applying the criteria enunciated by the United
States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case
arises, in Sedlack v. Braswell Services Group, 134 F.3d 219 (4th Cir. 1998);
Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir. 1992). The
administrative law judge's failure to determine whether the doctrine of collateral
estoppel was applicable is moot, however, if his finding of pneumoconiosis arising
out of coal mine employment pursuant to Sections 718.202(a)(4), 718.203(b), based
on his independent review of the evidence of record in the survivor's claim, may
be affirmed.
Turning to the merits of the claim, employer contends that the administrative
law judge erred in separately evaluating the x-ray evidence at Section
718.202(a)(1) and the medical opinions at Section 718.202(a)(4) in determining
whether claimant established the existence of pneumoconiosis. Employer argues that
although Section 718.202(a) enumerates four distinct methods of establishing
pneumoconiosis, all relevant evidence must be weighed together to determine whether
claimant suffers from the disease.[1] The
Director correctly notes, however, that the Act and its implementing regulations
recognize both "clinical" and "legal" pneumoconiosis. 30 U.S.C. §902(b); 20
C.F.R. §718.201; see Barber v. Director, OWCP, 43 F.3d 899, 19 BLR 2-61
(4th Cir. 1995); Doris Coal Co. v. Director, OWCP [Stiltner], 938 F.2d 492,
15 BLR 2-135 (4th Cir. 1991). Legal pneumoconiosis, as defined in 20 C.F.R.
§718.201, is a broader category which is not dependent upon a determination
of clinical pneumoconiosis, and the absence of clinical pneumoconiosis does not
necessarily influence a physician's diagnosis of legal pneumoconiosis. See
generally Taylor v. Director, OWCP, 9 BLR 1-22 (1986). In the present case,
the administrative law judge reasonably found that although the evidence of record
was insufficient to establish clinical pneumoconiosis pursuant to Section
718.202(a)(1) and (a)(2), the weight of the medical opinions established legal
pneumoconiosis pursuant to Section 718.202(a)(4). Decision and Order at 2-4. We
therefore find no error in the administrative law judge's method of weighing the
evidence pursuant to Section 718.202(a)(1)-(4).
Employer next challenges the administrative law judge's evaluation and
weighing of the medical opinions at Section 718.202(a)(4). Specifically, employer
argues that the administrative law judge erred in mechanically crediting the
opinions of the miner's treating physicians; in relying on poorly documented or
conclusory opinions; and in selectively analyzing the evidence. Employer asserts
that the administrative law judge summarily discounted the opinions of Drs. Fino,
Zaldivar, Morgan and Renn that the miner's pulmonary condition was due to smoking
and not dust exposure in coal mine employment, and improperly shifted the burden
of proof by finding that those opinions did not "displace" the opinions of the
treating physicians, Drs. Arnett and Nefflen, that the miner had pneumoconiosis.[2] Employer's arguments are without merit.
In evaluating the medical opinions at Section 718.202(a)(4), the
administrative law judge acknowledged the pulmonary expertise of Drs. Fino,
Zaldivar, Morgan and Renn, but determined that Drs. Fino, Zaldivar and Morgan never
examined the miner, and Dr. Renn examined him only once in 1984, whereas Dr. Arnett
treated the miner between 1979 and his death in 1993,[3] and Dr. Nefflen treated the miner during multiple hospitalizations.
The administrative law judge acted within his discretion as trier-of-fact in
finding that the opinions of the miner's treating physicians, Drs. Arnett and
Nefflen, were entitled to greater weight because those physicians had the most
complete picture of the miner's health, particularly Dr. Arnett,[4] a Board-certified pulmonary expert whose
conclusions were based on his personal observation, testing and treatment of the
miner over a period of more than ten years.[5]
Decision and Order at 3-4; see Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR
2-299 (4th Cir. 1994); Hall v. Director, OWCP, 8 BLR 1-193 (1985). Contrary
to employer's arguments, the fact that Dr. Arnett achieved some improvement in the
miner's respiratory function with prescribed medications does not mandate a
conclusion that the miner did not suffer from pneumoconiosis, an irreversible
condition, see generally Badger Coal Co. v. Director, OWCP [Kittle], 83 F.3d
414, 20 BLR 2-265 (4th Cir. 1996); and Dr. Arnett was not required to specifically
apportion the effects of the miner's smoking and his dust exposure in coal mine
employment upon the miner's condition.[6] See
generally Gorzalka v. Big Horn Coal Co., 16 BLR 1-48 (1990). The
administrative law judge's findings and inferences pursuant to Section
718.202(a)(4) are supported by substantial evidence, and therefore are affirmed.[7]
Similarly, we reject employer's challenge to the administrative law judge's
weighing of the evidence at Section 718.205(c). The administrative law judge
permissibly accorded little weight to the opinions of Drs. Fino, Zaldivar, Morgan
and Renn that pneumoconiosis played no role in the miner's death, as they failed
to diagnose pneumoconiosis, see Grigg, supra; and reasonably relied on the
opinions of the miner's treating physicians, Drs. Arnett and Nefflen, corroborated
by the opinions of Dr. Gaziano and the physicians of the West Virginia Occupational
Pneumoconiosis Board, that the miner's death was due to pneumoconiosis. Decision
and Order at 4-5. The administrative law judge's findings pursuant to Section
718.205(c) are supported by substantial evidence, in accordance with applicable
law, see Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992),
cert. denied, 113 S.Ct. 969 (1993), and are affirmed. Consequently, we
affirm the administrative law judge's award of benefits.
Lastly, employer challenges the administrative law judge's award of attorney
fees as excessive. The award of an attorney fee is discretionary and will be
upheld on appeal unless shown by the challenging party to be arbitrary, capricious,
or an abuse of discretion. Abbott v. Director, OWCP, 13 BLR 1-15 (1989),
citing Marcum v. Director, OWCP, 2 BLR 1-894 (1980).
Employer contends that the administrative law judge erred in failing to apply
the appropriate standard and in failing to separately address each of employer's
objections to the hours requested by claimant's counsel, which either challenged
the reasonableness and necessity of the work performed on various dates, or the
adequacy of counsel's description of the extent and character of the work done
pursuant to 20 C.F.R. §725.366(a).[8]
Employer also maintains that the hourly rate of $200 approved by the administrative
law judge was excessive, and that the administrative law judge did not address
employer's argument that a reduced hourly rate of $175 is more consistent with
counsel's customary rate in other areas of law and the rate charged by the general
legal community. Employer's arguments are without merit.
The review of a fee petition requires the administrative law judge to decide
whether, at the time counsel performed the service, counsel could reasonably regard
it as necessary to establish entitlement and whether the amount of time expended
was excessive or unreasonable. See Lanning v. Director, OWCP, 7 BLR 1-314
(1984); Robel v. Director, OWCP, 7 BLR 1-358 (1984); Marcum, supra.
In finding that the hours claimed by counsel were not excessive, the administrative
law judge summarized employer's seven specific challenges to the time spent, and
acted within his discretion in finding that all of the hours requested by counsel
for reviewing the file, traveling, organizing exhibits and preparing briefs were
necessary and reasonable.[9] Supplemental
Decision and Order at 1-2; see 20 C.F.R. §725.366; Lenig v.
Director, OWCP, 9 BLR 1-147 (1986); Ball v. Director, OWCP, 7 BLR 1-617
(1984); Lanning, supra. We therefore reject employer's challenge to the
number of hours claimed for services rendered.
We also reject employer's argument that the hourly rate and total fee awarded
by the administrative law judge was excessive. The administrative law judge denied
counsel's request of a $30 per hour fee enhancement for delay as premature,[10] and after consideration of the factors
contained at 20 C.F.R. §725.366(b), awarded counsel his customary hourly rate
of $200 for black lung cases. Supplemental Decision and Order at 3-4. Employer's
assertion that an hourly rate of $175 would be appropriate and more consistent with
the rate obtained by the general legal community in this area of law is
insufficient to meet employer's burden of proving that the rate awarded was
excessive or that the administrative law judge abused his discretion in this
regard. See generally Broyles v. Director, OWCP, 974 F.2d 508, 17 BLR 2-2-1
(4th Cir. 1992); Pritt v. Director, OWCP, 9 BLR 1-159 (1986).
Accordingly, the administrative law judge's Decision and Order awarding
benefits and his Supplemental Decision and Order Granting Attorney Fees are
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
Deskbook Section: Part V.A.9 - Issues on Appeal
Inasmuch as claimant was satisfied with the result of the administrative law
judge's decision, she was not required to file a cross-appeal pursuant to 20 C.F.R.
§802.201(a)(2), but could make arguments in her response brief pursuant to 20
C.F.R. §802.212(b) which were not in support of the administrative law judge's
reasoning but which supported the result he reached.
Deskbook Section: Part VII.B.5 - Section 718.202(a)(4): Medical Reports
Under the facts of this case, in determining whether the evidence was sufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4), the administrative law judge did not err in failing to
weigh evidence relevant to a determination of "clinical" pneumoconiosis together
with evidence relevant to a determination of "legal" pneumoconiosis. Legal
pneumoconiosis, as defined in 20 C.F.R. §718.201, is a broader category which
is not dependent upon a determination of clinical pneumoconiosis, and the absence
of clinical pneumoconiosis does not necessarily influence a physician's diagnosis
of legal pneumoconiosis.
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Footnotes.
1) In support of its position, employer cites to Penn Allegheny Coal Co. v. Williams,
114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997), a case arising in a different appellate circuit which consequently is not
controlling. In Williams, the court adopted the Director's position that although 20 C.F.R.
§718.202(a) enumerates four distinct methods of establishing pneumoconiosis, all types of relevant evidence must
be weighed together to determine whether the miner suffers from the disease. The Director correctly notes, however,
that the Williams court did not distinguish between legal pneumoconiosis and clinical pneumoconiosis, as
that issue was not relevant to the facts of that case, whereas in the present case, the administrative law judge found that
claimant failed to establish clinical pneumoconiosis but successfully established legal pneumoconiosis.
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2) We reject employer's argument that Dr. Nefflen offered inconsistent and conflicting
diagnoses. The administrative law judge accurately determined that Dr. Nefflen's treatment notes included diagnoses
of chronic obstructive pulmonary disease and asthmatic or acute bronchitis, diagnoses which fall within the regulatory
definition of pneumoconiosis if they arise out of coal mine employment. 20 C.F.R. §718.201. The miner's death
certificate, signed by Dr. Nefflen, listed the immediate cause of death as sepsis due to pneumonia due to chronic
obstructive pulmonary disease; and Dr. Nefflen's letter of March 2, 1994 indicated that the miner's underlying
pulmonary problem was pneumoconiosis. Decision and Order at 4; Director's Exhibits 6-9; Claimant's Exhibits 3, 4,
9.
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3) Employer argues that its experts had access to the same medical data base as did Dr. Arnett
in assessing the miner's condition, and notes that because Dr. Arnett did not have admitting privileges, he did not treat
the miner during his multiple hospitalizations. The administrative law judge, however, determined that while Dr.
Nefflen treated the miner when he was hospitalized, Dr. Arnett's deposition testimony established that he remained
aware of the miner's condition through frequent visits to the miner and informal consultation in the miner's treatment.
Decision and Order at 4; Employer's Exhibit 11 at 8, 33.
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4) We reject employer's assertion that the basis for Dr. Arnett's diagnosis of pneumoconiosis
is not clear, and was possibly based solely on his positive x-ray interpretations. Dr. Arnett's deposition testimony
indicates that his diagnosis was based on the totality of the miner's medical, smoking and employment histories,
symptoms, and his findings on examination and testing of the miner over a period of more than ten years. Moreover,
while Dr. Arnett observed x-ray abnormalities, he noted that an overwhelming number of the miner's films were
interpreted by qualified readers as negative for pneumoconiosis, and agreed that at most, any x-ray changes were
minimal. Employer's Exhibit 11 at 12-16, 20-25, 28-30, 38-44, 49-54. The administrative law judge additionally
determined that Dr. Arnett diagnosed asthma, which he testified was not caused by dust exposure in coal mine
employment but was greatly exacerbated by it, see 20 C.F.R. §718.201. Decision and Order at 3,
n. 4; Employer's Exhibit 11 at 28-30.
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5) The administrative law judge additionally determined that the opinions of Drs. Arnett and
Nefflen were corroborated by the physicians of the West Virginia Occupational Pneumoconiosis Board, and Drs. Franz,
Kovoor, Corder and Kaufmann, who either diagnosed pneumoconiosis or noted the miner's history of pneumoconiosis.
Decision and Order at 4, n. 5; Director's Exhibits 3, 19; Claimant's Exhibits 1-2, 5-8.
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6) We also reject employer's argument that Dr. Renn's opinion was entitled to greater weight
because he cited to 22 articles in support of his conclusions, whereas Dr. Arnett was supplied with medical literature
by claimant's counsel and did not perform his own in-depth literature search. The method of obtaining medical literature
in support of a physician's opinion and the quantity of such literature does not necessarily impact upon the validity of
a physician's conclusions.
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7) The administrative law judge's findings that the miner was entitled to the presumption that
his pneumoconiosis arose out of coal mine employment pursuant to Section 718.203(b), and that the evidence of record
was insufficient to establish rebuttal of that presumption, are affirmed as unchallenged on appeal. See Skrack v.
Island Creek Coal Co., 6 BLR 1-710 (1983).
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8) Claimant notes that counsel's response to employer's objections to the fee petition provided
a detailed explanation to the administrative law judge of the precise nature of the services provided and why counsel
believed the time spent providing such services was reasonable and necessary. Employer did not acknowledge counsel's
explanation either before the administrative law judge or in its brief on appeal to the Board.
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9) Although employer objected to the entries of April 5-7, 1995, and July 16-18, 1996, on the
ground that they lacked the specificity required by the regulation, the administrative law judge did not abuse his
discretion by awarding a fee for these entries. 20 C.F.R. §725.366(a).
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10) The administrative law judge invited counsel to file for reconsideration of the attorney fee
award on the basis of delay within thirty days of an award which reflected a successful prosecution of the claim, at which
time the administrative law judge could properly consider the appropriateness of enhancement of the fee for delay in
accordance with Bennett v. Director, OWCP, 17 BLR 1-72 (1992). Supplemental Decision and Order at
2-4.
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NOTE: This is a PUBLISHED BLA Document.
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