Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 122
May - August 1995
Circuit courts of appeals
In Malcomb v. Island Creek Coal Co., 15 F.3d 364 (4th
Cir. 1994), the court reaffirmed its holding in Massey to
state that, under § 727.203(b)(3), a nonexamining
physician's opinion which attributes a claimant's lung condition
to smoking is not of probative value where the examining
physician, while noting the miner's smoking history, did not find
that it contributed to his condition. See also Johnson v. Old
Ben Coal Co., ___ B.L.R. ___, BRB No. 94-0164 BLA (June 21,
1995) (applying Malcomb to a case arising in Fourth
Circuit).
[ VIII - 53, rebuttal under § 727.203(b)(3) ]
In Lisa Lee Mines v. Director, OWCP, ___ F.3d ___,
Case No. 94-2523 (4th Cir. June 16, 1995), the Fourth Circuit
rejected the Board's holding in Spese v. Peabody Coal Co.,
11 B.L.R. 1-174 (1988) as the standard for establishing a
"material change in conditions" in a duplicate claim.
The court determined that "[t]he purpose of section
725.309(d) is not to allow a claimant to revisit an earlier
denial of benefits, but rather only to show that his condition
has materially changed since the earlier denial." As such,
the court concluded that Spese "is an impermissible
reading of section 725.309(d)" and that it would apply the
standard set forth by the Seventh Circuit in Sahara Coal Co.
v. Director, OWCP [McNew], 946 F.2d 554 (7th Cir. 1991).
[ III - 91, "material change in conditions" -
duplicate claim ]
In Blakeley v. Amax Coal Co., ___ F.3d ___, Case No.
94-2169 (7th Cir. May 25, 1995), the Seventh Circuit held that,
under § 725.305(a), the claimant must demonstrate that
"he worked for fifteen years in an underground mine or in a
surface mine with dust conditions substantially similar to those
found in underground mines." In this vein, the court
further held that the claimant "'bears the burden of
establishing comparability' but 'must only establish that he was
exposed to sufficient coal dust in his surface mine
employment.'" The court stated that will generally
defer to the expertise of the administrative law judge in
determining the similarity of surface and underground mine
conditions.
Once invoked, the presumption at § 725.305(a) may be
rebutted if the employer demonstrates, by a preponderance of the
evidence, that either (1) the miner does not, or did not, have
pneumoconiosis, or (2) his respiratory or pulmonary impairment
did not arise out of his coal mine employment. Citing to
Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir. 1990),
the court stated that, with regard to the second avenue of
rebuttal, if the employer establishes that the miner would have
been disabled notwithstanding regardless of his exposure to coal
dust, then his disability did not arise out of coal mine
employment. Thus, although the experts in Blakeley did
not conclusively "rule out" coal workers'
pneumoconiosis as a possible factor in the claimant's condition,
rebuttal of the presumption was nevertheless accomplished by
Employer as the record evidenced that the miner would have been
totally disabled notwithstanding any complications arising from
his exposure to coal mine dust. Beasley, 957 F.2d at 328.
Finally, in applying the "hostile-to-the-Act"
rule, the Seventh Circuit noted that the rule allows an
administrative law judge to "disregard medical testimony
when a physician's testimony is affected by his subjective
personal opinions about pneumoconiosis which are contrary to the
congressional determinations implicit in the Act's
provisions." The court offered examples, including
where a physician states that he will never diagnose the
existence of pneumoconiosis in the absence of a positive x-ray,
Robinson v. Missouri Mining Co., 955 F.2d 1181, 1183 (8th
Cir. 1992); or when a physician testifies, directly contrary to
the Act, that simple pneumoconiosis can never be totally
disabling, Kaiser Steel Corp. v. Director, OWCP, 748 F.2d
1426, 1430 (10th Cir. 1984). However, a physician's expression
of a view that is at odds with the Act is not enough by itself to
exclude that opinion from consideration. Wetherhill v.
Director, OWCP, 812 F.2d 376, 382 (7th Cir. 1987).
Applying this standard, the court found in this case that
the opinion of a physician that coal dust exposure does not cause
obstructive impairment and therefore smoking must have caused
claimant's condition, did not rise to the level of
"hostility." The court explained that the physician's
opinion did not fall into a traditionally hostile category nor
contravene the Act's definition of pneumoconiosis. According to
the court, the Act and the regulations define
"pneumoconiosis" broadly and do not establish that dust
exposure from coal mine work can necessarily cause obstructive
pulmonary disease or impairment. Rather, the facts and medical
opinions in each specific case answer this question.
[ VI - 10, presumption at § 718.305; IV - 79,
hostile-to-the-Act rule ]
Benefits Review Board
In Goodloe v. Peabody Coal Co., ___ B.L.R. ___, BRB
No. 92-1738 BLA (June 27, 1995) (published), the Board held that
a fee cannot be enhanced to accommodate its contingent nature,
citing to City of Burlington v. Dague, 112 S. Ct. 2638
(1992), but that enhancement for unusually lengthy delay may be
an appropriate factor to consider in determining the hourly rate
as noted in Missouri v. Jenkins, 109 S. Ct. 2463 (1989).
However, the Board reiterated its holding in Bennett v.
Director, OWCP, 17 B.L.R. 1-72 (1992) that a request for
enhancement due to delay must be made at the time the fee
petition is submitted and counsel is entitled to his or her
customary hourly rate at the time services were performed and not
when the fee application is filed.Finally, the Board
reaffirmed that contingent fee arrangements are invalid.