BRB No. 00-0831 BLA
GLENNA FLOYD )
(Widow of DAVID L. FLOYD) )
)
Claimant-Respondent )
)
v. ) DATE ISSUED:05/18/2001 )
BETHENERGY MINES, )
INCORPORATED )
)
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-Awarding Benefits and Supplemental
Decision and Order Granting Attorney's Fees of Gerald M. Tierney,
Administrative Law Judge, United States Department of Labor.
James M. Phemister (Washington & Lee University School of Law),
Lexington, Virginia, for claimant.
William S. Mattingly (Jackson & Kelly), Morgantown, West Virginia, for
employer.
Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON, Acting Administrative
Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order-Awarding Benefits and Supplemental
Decision and Order Granting Attorney's Fees (98-BLA-1098) of Administrative Law
Judge Gerald M. Tierney 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] The administrative
law judge accepted the parties' stipulation that the miner had been employed in the
coal mines for at least twenty-two years and then determined that claimant
established total disability due to pneumoconiosis pursuant to 20 C.F.R.
§§718.202(a)(4) and 718.204(c)(2), (4) (2000). Accordingly, benefits
were awarded, commencing September 1997, the month in which the miner's claim was
filed, and ceasing in November 1999, the month prior to the month in which the
miner died. In a Supplemental Decision and Order Granting Attorney's Fees, the
administrative law judge approved the Petition for Fees and Costs in the amount of
$8983.00, filed by claimant's counsel.
On appeal, employer challenges the administrative law judge's findings
pursuant to 20 C.F.R. 718.202(a), 718.204(b) (2000), as well as the attorney fee
award. Claimant responds, urging affirmance of the award of benefits and attorney
fees. The Director, Office of Workers' Compensation Programs (the Director) has
indicated that he will not participate in this appeal.
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations, the United States District Court for the
District of Columbia granted limited injunctive relief and stayed, for the duration of the lawsuit, all Black Lung claims
pending on appeal before the Board, except for those cases where the Board determines after briefing by the parties, that
the regulations at issue in the lawsuit will not affect the outcome of the case. National Mining Association v. Chao,
No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting preliminary injunction). In the present case, the Board established
a briefing schedule by order issued on March 9, 2001, to which claimant, employer and the Director have responded.[2] Based on the briefs submitted by the parties, and our review, we hold that the
disposition of this case is not impacted by the challenged regulations. Therefore, the Board will proceed to adjudicate the
merits of this appeal.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be
affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law. 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).
In order to establish entitlement to benefits in a living miner's claim filed pursuant to 20 C.F.R. Part 718, claimant
must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the
pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204 (2000); Gee v. W.G.
Moore and Sons, 9 BLR 1-4 (1986)(en banc). Failure to establish any one of these elements precludes
entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).
In challenging the administrative law judge's finding that claimant
established the existence of pneumoconiosis, employer contends that the
administrative law judge erred by crediting the medical report by the West Virginia
Occupational Pneumoconiosis Board[3] (WVOPB)
pursuant to Section 718.202(a)(4) (2000). The administrative law judge
acknowledged that the findings of the WVOPB are not binding because of the
differences in state and federal law, Decision and Order at 5, but nevertheless,
after noting that the WVOPB's finding was based upon a physical examination, chest
x-ray findings, pulmonary function results and a medical report, permissibly
credited the report. See Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island Creek Coal Co., 10 BLR 1-19
(1987).
Employer next contends that the administrative law judge erred in crediting
Dr. Durham's opinion.[4] The administrative law
judge properly noted the conflicting nature of the physician's deposition
testimony,[5] but contrary to employer's
assertion, was not required to discredit the opinion on the basis that it is
equivocal. See Salisbury v. Island Creek Coal Co., 7 BLR 1-501
(1984); Decision and Order at 5. However, prior to determining that Dr. Durham's
opinion is sufficient to establish the existence of pneumoconiosis at Sections
718.201 and 718.202(a)(4) (2000), the administrative law judge is required to make
a determination whether the opinion is well-reasoned and well-documented. See
Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993). Thus, we vacate the
administrative law judge's weighing of Dr. Durham's opinion and remand the case for
him to consider the physician's opinion further.
Employer further contends that the administrative law judge erred in
crediting the opinions of Drs. Durham and Rasmussen and the WVOPB over contrary
opinions without providing an adequate rationale for his weighing of these
opinions.[6] These contentions have merit. In
weighing the medical opinion evidence pursuant to Section 718.202(a)(4) (2000), the administrative law judge accorded
determinative weight to the opinions by the WVOPB, and Drs. Durham and Rasmussen, finding that
these opinions were the most consistent with claimant's complaints of worsening
shortness of breath, his history of coal mine employment, the significant
abnormalities shown on arterial blood gases and the cited medical literature.
Decision and Order at 10. In assessing the relative weight to be accorded to the medical opinions of record, however, the
administrative law judge did not sufficiently address the conflicts between the diagnoses rendered by Drs. Durham,
Rasmussen, the WVOPB and those rendered by Drs. Bellote and Morgan.[7] In
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997), the United States Court of
Appeals for the Fourth Circuit indicated that in assessing the relative probative weight of the medical opinions of record,
an administrative law judge must address the qualifications of the respective physicians, the explanation of their
conclusions, the documentation underlying their medical judgments, and the sophistication and bases of their diagnoses.
See Akers, supra; see also U.S. Steel Mining Co., Inc. v. Director, OWCP [Jarrell], 187
F.3d 384, 21 BLR 2-639 (4th Cir. 1999); Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir.
1998). However, in the instant case, Drs. Rasmussen, Durham, Bellote and Morgan discuss claimant's shortness of breath,
years of coal mine employment, and abnormal blood gas study. In light of the administrative law judge's failure to provide
an adequate rationale for finding the opinions of Drs. Rasmussen, Durham and the WVOPB persuasive, when evaluated
with the opinions by Drs. Bellote and Morgan, we must vacate the administrative law judge's findings hereunder and
remand the case to the administrative law judge for further consideration of all of the relevant evidence of record.[8] See Hicks, supra; Akers, supra; Wojtowicz
v. Duquesne Light Co., 12 BLR 1-162 (1989); see also Tackett v. Director, OWCP, 7 BLR 1-703
(1985).
Furthermore, we note that the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this
case arises, held in Island Creek Coal Co. v. Compton, 211 F.3d 203, BLR (4th Cir. 2000), that although
Section 718.202(a)(1)-(4) (2000) provides alternative methods for establishing the
existence of pneumoconiosis, in determining whether the evidence is sufficient to
support a finding of the disease, an administrative law judge must weigh all
relevant evidence together.[9] Thus, on remand, if the administrative
law judge determines that the medical opinion evidence establishes the existence of pneumoconiosis at Section
718.202(a)(4) (2000), he must then address all of the pertinent evidence in conjunction with each other to determine whether
claimant has established the existence of pneumoconiosis pursuant to Section 718.202(a) (2000). See Compton,
supra.
Employer next contends that the administrative law judge erred in his analysis of the evidence regarding disability
causation at Section 718.204(b) (2000).[10] We agree. After considering the
evidence, the administrative law judge accorded determinative weight to Dr. Rasmussen's opinion, finding that it is clear,
unequivocal, well-reasoned and documented and most consistent with the miner's complaints of shortness of breath, his
significant coal mine employment history, the qualifying arterial blood gases, and the cited medical literature. Decision
and Order at 12. The administrative law judge additionally found that Dr. Rasmussen's finding that the miner's totally
disabling respiratory impairment is related, at least in part, to pneumoconiosis is partially buttressed by the opinions of Dr.
Durham and the WVOPB. Id. The administrative law judge, while acknowledging that the opinions by Drs.
Bellotte and Morgan are probative regarding disability causation, Decision and Order at 11, fn. 4, 5, nevertheless failed to
address these opinions when weighing the evidence on the issue of causation at Section 718.204(b) (2000). The United
States Court of Appeals for the Fourth Circuit has stated that a medical opinion that acknowledges the miner's respiratory
impairment but nevertheless concludes that an ailment other than pneumoconiosis caused the miner's total disability is
relevant because it directly rebuts the miner's evidence that pneumoconiosis contributed to his disability. See Hicks,
supra; Dehue Coal Co. v. Ballard,65 F.3d 1189, 19 BLR 2-304 (4th Cir. 1995); Hobbs v. Clinchfield Coal
Co., 45 F.3d 819, 19 BLR 2-86 (4th Cir. 1995). In the instant case, because the administrative law judge did not address
evidence which is pertinent to the issue of disability causation at Section 718.204(b) (2000), we vacate his determination
that the miner established total disability due to pneumoconiosis, and remand the case for further consideration of the
evidence.
Additionally, on the issue of attorney's fees, counsel requested a fee of $5,500.00 for twenty-seven and one-half
hours of services performed at an hourly rate of $200.00 and reimbursement for expenses totaling $3,483.00. Employer
objected to the hourly rate and contested the inclusion of fees paid to two physicians who provided claimant with reports.
In his Supplemental Decision and Order Granting Attorney's Fees, the administrative law judge found the hourly rate to
be reasonable. The administrative law judge also found that $2,937.50 for a medical report by Dr. Koenig[11] and $200.00 for a medical report by Dr. Shamma-Othman were reasonable
expenses for reimbursement and therefore granted counsel's request and instructed employer to pay counsel a total of
$8,983.00. Supplemental Decision and Order at 2. Employer argues on appeal that the
administrative law judge did not comply with the Administrative Procedure Act in
determining the reasonableness of the hourly rate and failed to explain why the
costs incurred in obtaining Dr. Koenig's and Dr. Shamma-Othman's opinions were
reasonable or necessary.
In determining whether the $200.00 hourly rate was reasonable, the
administrative law judge set forth the standard contained in 20 C.F.R. 725.366(b),
which provides in pertinent part that:
Any fee approved...shall be reasonably commensurate with the necessary work
done and shall take into account the quality of the representation, the
qualifications of the representative, the complexity of the legal issues
involved, the level of proceedings to which the claim was raised, the level
at which the representative entered the proceedings, and any other
information which may be relevant to the amount of the fee requested.
20 C.F.R. §725.366(b).[12] The
administrative law judge then stated that "[t]aking into consideration these
factors, I do not find that the proposed hourly rate of $200.00 [is] excessive."
Supplemental Decision and Order at 2. We reject 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. The administrative law
judge may consider this factor, but is not required to do so. 20 C.F.R.
§725.366(b); c.f. 20 C.F.R. §802.203(d)(4). Therefore, as
employer raises no other specific objection to the hourly rate, we affirm his
determination that $200.00 per hour constitutes a reasonable hourly rate.
Employer also objects to the reimbursement of Dr. Koenig's fee of $2,937.50,
arguing that the fee is excessive because Dr. Rasmussen submitted a similar report
and charged $200.00. Employer also contends that since Dr. Koenig's opinion was
not credited by the administrative law judge, it was unnecessary to secure an award
of benefits and the charge should not be compensable. With respect to the opinion
by Dr. Shamma-Othman, employer argues that although claimant requested the report,
it was employer that offered the report, and since the physician did not diagnose
pneumoconiosis or indicate that the miner was totally disabled, the report was
unnecessary to claimant's case and should not be compensated. We disagree that the
administrative law judge committed any error in awarding these costs. The
administrative law judge's Supplemental Decision indicates that with respect to Dr.
Koenig's opinion, he was persuaded by claimant's counsel's argument that the report
was thorough, and given the amount of medical records, the evidence submitted by
employer and the complex issues regarding obstruction, the fee is reasonable.
Regarding the $200.00 charge for Dr. Shamma-Othman, the administrative law judge
found that it is not unreasonable to request reimbursement for a report that was
requested but ultimately not used.[13] As the
administrative law judge acted within his discretion and employer has failed to
demonstrate that the reimbursement of these costs was arbitrary, capricious, or an
abuse of discretion, we affirm his determination that costs incurred by claimant's
counsel for obtaining the reports by Drs. Koenig and Shamma-Othman are
reimbursable. 20 C.F.R. §725.366(c); Branham v. Eastern Associated Coal Corp., 19 BLR 1-1
(1994); Marcum v. Director, OWCP, 2 BLR 1-894 (1980).
We note, however, that in order to be entitled to an award of attorney's
fees under Section 28(a) of the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C. §928, as incorporated into the Act by 30 U.S.C.
§932(a), claimant's counsel must engage in the successful prosecution
of a claim.[14] See Beasley
v. Sahara Coal Co., 16 BLR 1-6 (1991); see generally Director, OWCP
v. Baca, 927 F.2d 1122, 15 BLR 2-42 (10th Cir.1991); Yates v. Harman
Mining Co., 12 BLR 1-175 (1989), aff'd on recon., 13 BLR 1-56
(1989) (en banc). As we have vacated the award of benefits, neither
counsel is entitled to a fee until claimant has succeeded in obtaining
benefits.
Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits and Supplemental Decision and Order Granting Attorney's Fees is affirmed
in part and vacated in part and this case is remanded to the administrative law
judge for further proceedings consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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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 65
Fed. Reg. 80, 045-80, 107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725 and 726). All citations to the regulations,
unless otherwise noted, refer to the amended regulations.
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2)The Director's brief, dated March 26, 2001, asserted that the
regulations at issue in the lawsuit do not affect the outcome of this case.
Claimant's brief, dated April 2, 2001, asserted that the changes contained in the
new regulations will not affect the outcome of this case and therefore a decision
on the merits should not be stayed. In a brief dated April 2, 2001, employer
asserted that the regulations at issue in the lawsuit "could" affect the outcome
of this case. Employer's Brief at 4 - 9. Employer contends that the provisions
contained at 20 C.F.R. §§718.201(c) and 718.204(a) may affect the
disposition of this case, but has not specifically indicated how the application
of the new regulations to the facts of the case herein could affect the outcome of
the instant appeal.
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3)On September 22, 1992, the West Virginia Occupational Pneumoconiosis
Board diagnosed occupational pneumoconiosis with thirty percent pulmonary functional impairment attributable
to the disease. The report indicated that these findings were based upon twenty-three years of coal mine
employment, physical examination, pulmonary function studies and chest x-ray. Director's Exhibit 3.
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4)Dr. Durham, who is board-certified in internal medicine and pulmonary disease, examined the
miner on October 20, 1997 and diagnosed mild chronic obstructive pulmonary disease related to coal dust exposure and
tobacco abuse. Director's Exhibit 8. Dr. Durham also opined that the miner's rheumatoid arthritis significantly limits his
ability to perform work. Dr. Durham stated that the miner's mild obstructive pulmonary disease contributes five percent
to his impairment.
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5) At deposition, Dr. Durham stated that his assessment of five percent was relatively arbitrary
and that it was possible that the miner's lung disease was related to his smoking history as opposed to coal dust exposure,
but stated that although rheumatoid arthritis and/or tobacco abuse probably contributed more to the miner's disabling
condition, coal dust exposure and coal workers' pneumoconiosis were also contributing factors. Employer's Exhibit 5.
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6)Dr. Rasmussen, who is board-certified in internal medicine and forensic medicine, issued a report
on April 12, 1999. Claimant's Exhibit 2. Based on a review of the medical data and citations to medical literature, the
physician concluded that the miner suffers from occupational pneumoconiosis which arose from coal mine employment.
The physician further opined that the miner is totally disabled as a consequence of his probable rheumatoid lung disease
as well as coal mine dust exposure. Dr. Rasmussen stated that the miner's coal mine dust exposure and resultant
pneumoconiosis is a significant contributing factor in the miner's total disability. The physician additionally noted that the
miner suffered from rheumatoid arthritis, which is known to be able to produce diffuse interstitial fibrosis, and also noted
that silicosis is associated with an increased incidence of rheumatoid arthritis. In a supplemental report on July 9, 1999,
Dr. Rasmussen responded to Dr. Bellotte's deposition testimony and reiterated his previous findings regarding the miner.
Claimant's Exhibit 3.
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7)Dr. Bellotte, a B-reader who is board-certified in internal medicine and pulmonary diseases,
examined the miner on April 14, 1998, and on the basis of a summary of the available medical data, the miner's history,
complaints and the results of clinical tests, concluded that there was insufficient objective evidence to justify a diagnosis
of coal workers' pneumoconiosis. The physician further opined that the miner suffered from some moderately severe
pulmonary and respiratory impairment, attributed to pulmonary fibrosis secondary to his collagen vascular disease, namely
rheumatoid arthritis. The physician noted the miner's smoking history of thirty-nine pack years and found that the miner's
chest x-rays, pulmonary function and blood gas tests are compatible with a diagnosis of chronic obstructive pulmonary
disease with bullous emphysema and chronic bronchitis. Dr. Bellotte stated that the type of findings on the miner's x-rays
were inconsistent with coal workers' pneumoconiosis as they are localized in the lower zones and are linear, whereas one
would expect to see nodular rounded densities in the upper lung zones. Director's Exhibit 23. Dr. Bellotte was deposed
on June 18, 1999, at which time he reiterated his previous findings. Employer's Exhibit 12.
Dr. Morgan, a B-reader and British certified pulmonologist issued a report on March 20, 1999, and based upon his
interpretation of several chest x-rays, CT scans, and a review of the medical data, concluded that there was insufficient
evidence to justify a diagnosis of coal workers' pneumoconiosis because the miner had worked for a relatively limited time
in the coal mines and the fact that expert B-readers have interpreted his chest x-ray as negative for pneumoconiosis. The
physician further opined that the miner has mild to moderate respiratory impairment due to emphysema which was induced
by his former habit of cigarette smoking. Dr. Morgan additionally found that it "may well be" that the miner is totally and
permanently disabled by his rheumatoid arthritis which would impair the miner's ability to carry out regular mining work.
Dr. Morgan also found that the miner "may have" mild interstitial pulmonary fibrosis, but was not impaired by his prior
exposure to coal mine dust. Employer's Exhibit 10.
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8)Employer also contends that the absence of a diagnosis of
pneumoconiosis from the treating physician, Dr. Shamma-Othman, supports the
findings of Drs. Bellotte and Morgan. Petition for Review at 21. However, the
administrative law judge properly found that Dr. Shamma-Othman's treatment notes
and medical reports did not directly address the issue of the existence of
pneumoconiosis and therefore did not consider them at Section 718.202(a)(4) (2000).
Decision and Order at 10; Employer's Exhibits 6, 11.
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9)This case arises within the jurisdiction of the United States Court of Appeals for the Fourth
Circuit, as the miner's last full year of coal mine employment occurred in West Virginia. Director's Exhibit 2; see
Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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10)The administrative law judge's finding that claimant
established total disability pursuant to Section 718.204(c) (2000) is unchallenged
on appeal, and is therefore affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
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11)The administrative law judge mistakenly refers to Dr. Koenig
as Dr. Downig. See Supplemental Decision and Order Granting Attorney's Fees
at 2.
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12)No substantive changes were made to 20 C.F.R. §725.366(b) in the amended
regulations. See 65 Fed. Reg. 80,071 (2000)(to be codified at 20 C.F.R. §725.366(b).
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13)The record indicates that Dr. Shamma-Othman was the miner's treating physician.
Employer's Exhibits 6, 11.
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14)A prosecution of a claim is successful when claimant receives an economic benefit resulting
from an adversarial proceeding. See 33 U.S.C. §928(a), as implemented by 20 C.F.R. §725.367(a);
see also Bethenergy Mines Inc. v. Director, OWCP [Markovich], 854 F.2d 632 (3d Cir. 1988), aff'g
sub nom. Markovich v. Bethlehem Mines Corp., 11 BLR 1-105 (1987).
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NOTE: This is an UNPUBLISHED BLA Document.
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