BRB Nos. 02-0618 BLA
and 02-0618 BLA-A
ARNOLD E. SWIGER
Claimant-Respondent
Cross-Petitioner
v.
CONSOLIDATION
COAL
COMPANY
Employer-Petitioner
Cross-Respondent
DIRECTOR,
OFFICE
OF
WORKERS'
COMPENSATION PROGRAMS,
UNITED
STATES DEPARTMENT OF LABOR
Party-In-Interest
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DATE
ISSUED:06/13/2003
DECISION
and
ORDER
Appeal and Cross-Appeal of the Decision and Order--Awarding Benefits and
Supplemental Decision and Order Awarding Attorney Fees of Michael P.
Lesniak, Administrative Law Judge, United States Department of Labor.
Robert F. Cohen, Jr. (Cohen, Abate & Cohen, L.C.), Morgantown, West
Virginia, for claimant.
William S. Mattingly (Jackson & Kelly PLLC), Morgantown, West
Virginia, for employer.
Before: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals and claimant cross-appeals the Decision and Order--Awarding
Benefits and Supplemental Decision and Order Awarding Attorney Fees (2000-BLA-0744)
of Administrative Law Judge Michael P. Lesniak rendered 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] Claimant's initial application for black lung benefits filed with the
Social Security Administration (SSA) was denied on August 25, 1973. Director's Exhibit 88. On February 1,
1990, claimant filed an application for benefits with the Department of Labor (DOL). Director's Exhibit 37-1.
The District Director of the Office of Workers' Compensation Programs denied benefits on June 26, 1990
because claimant did not establish any element of entitlement. Director's Exhibit 37-29. On April 28, 1992,
claimant filed another application, which was a duplicate claim for benefits because it was filed more than one
year after the final denial of a previous claim. Director's Exhibit 38-1; see 20 C.F.R.
§725.309(d)(2000). After holding a hearing, Administrative Law Judge Victor Chao found that
claimant established that he had a totally disabling respiratory or pulmonary impairment, but did not establish
the existence of pneumoconiosis. Director's Exhibit 38-43. Accordingly, Judge Chao denied benefits in a
Decision and Order effective July 19, 1993. Id.
Proceeding without the assistance of counsel, claimant drafted an August 10, 1993 letter which, he
would later testify, he timely mailed to the district director's office in Parkersburg, West Virginia. [1999] Tr.
at 11-14, 19. In the handwritten letter, which bore the case number of his claim, claimant stated, "I protest this
claim," and alleged errors in the determination of his claim. Director's Exhibit 32. According to claimant's
testimony, approximately two months after mailing the letter, he telephoned the district director's Parkersburg
office and was informed that no letter was ever received. [1999] Tr. at 20. Claimant testified that at that
point, he "gave up." [1999] Tr. at 14.
On January 7, 1997, claimant filed the current application for benefits. Director's Exhibit 1. During the
processing of his claim, claimant retained counsel and began to raise issues concerning the procedural status of
his claim. As a result, three hearings were held before two different administrative law judges.
On June 23, 1999, Administrative Law Judge Richard A. Morgan held a hearing on the issue of whether
claimant's April 28, 1992 claim was still pending. Judge Morgan found that claimant's August 10, 1993 letter
was mailed to the district director and, coupled with claimant's subsequent phone call, constituted a timely
request for modification. Director's Exhibit 78; see 33 U.S.C. §922, implemented by 20 C.F.R.
§725.310(2000)(providing, in relevant part, for modification within one year of a denial, based on a
mistake of fact or change in conditions). Consequently, Judge Morgan ruled that claimant's 1992 claim
remained open, and that claimant's 1997 claim merged into the 1992 claim. See 20 C.F.R.
§725.309(c)(2000). Judge Morgan remanded the claim to the district director for further processing.
On November 5, 2000, Administrative Law Judge Michael P. Lesniak held a hearing confined to the
issue of whether claimant could elect review of his Part B claim that was denied by SSA in 1973. Both
claimant and employer alleged that claimant never received an election card and good cause therefore excused
his failure to timely elect review of his Part B claim. See 20 C.F.R. §§725.496(d);
727.104(b). Claimant therefore requested the application of 20 C.F.R. Part 727 to his claim, and employer
moved to be dismissed on the ground that liability transferred to the Black Lung Disability Trust Fund (Trust
Fund). Based on SSA computer data of record, Judge Lesniak found that an election card was mailed to
claimant on March 24, 1978 and that claimant timely received the card. Order, April 12, 2001. Consequently,
the administrative law judge ruled that claimant could not belatedly elect review of his denied Part B claim,
and that liability did not transfer to the Trust Fund. Accordingly, the administrative law judge also denied
employer's motion to be dismissed.
On September 12, 2001, Judge Lesniak held a hearing on the merits of the claim. In the ensuing
Decision and Order--Awarding Benefits, the administrative law judge credited claimant with "approximately
40 years" of coal mine employment, Decision and Order at 6, determined that Judge Morgan correctly found
that claimant requested modification of the denial of his prior duplicate claim, and found that a material
change in conditions had been established in the duplicate claim when Judge Chao found claimant to be totally
disabled. See 20 C.F.R. §725.309(d)(2000); Lisa Lee Mines v. Director, OWCP
[Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223
(4th Cir. 1995). Reviewing the entire record, the administrative law judge found that the x-ray evidence was
inconclusive for the existence of clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), but
found that the better reasoned medical opinion evidence established that the miner's chronic lung disease was
due in part to coal mine dust exposure and thus constituted legal pneumoconiosis. See 20 C.F.R.
§§718.202(a)(4); 718.201. Weighing the chest x-rays and medical opinions together, the
administrative law judge found that the evidence established the existence of legal pneumoconiosis. See
Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000). The administrative law
judge further found that claimant was totally disabled and that his total disability was due to legal
pneumoconiosis pursuant to 20 C.F.R. §§718.204(b),(c). Accordingly, the administrative law
judge awarded benefits. In a Supplemental Decision and Order, the administrative law judge awarded
claimant's counsel a fee of $37,968.75 for services performed, and $9,909.84 for costs incurred, while the case
was pending before the Office of Administrative Law Judges.
On appeal, employer contends that the administrative law judge erred in denying employer's motion to
be dismissed from the claim. Employer alleges further that the administrative law judge erred in finding that
claimant requested modification of the denial of his previous claim. Additionally, employer argues that the
administrative law judge erred in his analysis of the medical opinion evidence pursuant to Sections
718.202(a)(4), and 718.204(c). Employer also contends that the administrative law judge erred in awarding
claimant's counsel an hourly rate of $225.00. Claimant responds, urging affirmance of the attorney's fee
award, and the Director, Office of Workers' Compensation Programs (the Director), has declined to participate
in this appeal.[2]
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 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).
Employer contends that the administrative law judge erred in finding that claimant could not elect review
of his denied Part B claim and therefore erred in denying employer's motion to be dismissed from the claim.
Employer's Brief at 21-37. Employer's contention lacks merit. The record contains a printout of a DOL computer
screen, along with the affidavit and testimony of District Director Robert L. Hardesty, explaining that the screen
contains SSA data reflecting that an election card was mailed to claimant on March 24, 1978 and was not returned.
Director's Exhibit 98; Employer's Exhibit 13. Based on this evidence, the administrative law judge found that an
election card was mailed. The administrative law judge was not persuaded by the testimony of claimant and his
wife that they did "not recall [receiving] a particular piece of mail 22« years after the fact," and he found that the
card was received "on or about March 24, 1978." Order at 8. The administrative law judge's finding is supported
by substantial evidence and is in accordance with law. See Caney Creek Coal Co. v. Satterfield, 150 F.3d
568, 21 BLR 2-464 (6th Cir. 1998); Crace v. Kentland-Elkhorn Coal Corp., 109 F.3d 1163, 21 BLR 2-73
(6th Cir. 1997); Barber v. Director, OWCP, 43 F.3d 899, 19 BLR 2-61 (4th Cir. 1995).
Employer's argument that it appears likely the election card was incorrectly addressed to Arnold "Swinger"
does not alter the analysis. The administrative law judge considered this possibility and found, within his
discretion, that it "would not have precluded [the card's] receipt in the normal and ordinary course." Order at 8;
see Mays v. Piney Mountain Coal Co., 21 BLR 1-59, 1-64 (1997)(Dolder, J., concurring and
dissenting)(The Board will not substitute its inferences for those of the administrative law judge). The
administrative law judge's finding is reasonable and supported by substantial evidence. Review of the record
reflects that claimant's 1973 denial letter from SSA reached him even though addressed to "Mr. Arnold Swinger,"
and claimant stated that he has never moved from the Wallace, West Virginia address to which the denial letter
was sent. Director's Exhibit 88. Therefore, we reject employer's contention and affirm the administrative law
judge's finding that because claimant never elected review of his Part B claim, employer could not be dismissed
as the responsible operator. See Satterfield, supra; Barber, supra.
Employer next argues that the administrative law judge erred in finding that claimant requested
modification of the July 12, 1993 denial of his previous claim. Employer's Brief at 19-21. Employer does not
challenge Judge Morgan's finding that claimant timely mailed his August 10, 1993 letter to the district director
and called the district director two months later to check on his claim. Instead, employer argues that the letter is
not a modification request because it was not received by the district director within the one-year modification
period, and because the letter does not reflect an intent to seek modification. We disagree.
The administrative law judge reasonably found that the letter was a request for modification even though
the district director had no record of its receipt. Judge Morgan considered but was not persuaded by District
Director Hardesty's deposition testimony that he could find no record of claimant's August 10, 1993 letter,
because Mr. Hardesty could not exclude the possibility that the letter had arrived but had been misplaced.
Director's Exhibit 58, Hardesty Tr. at 71-72, 128. In this context, Judge Morgan found "credible" the affidavit
of claimant's counsel setting forth several specific instances in which the district director's office in West Virginia
had lost part or all of a claim file. Director's Exhibits 72, 78 at 7. These were credibility matters reserved for the
administrative law judge. See Mays, supra. Moreover, given the uncontested fact of timely mailing, the
letter's absence from DOL's file is not dispositive of whether the letter was a modification request. See
Consolidation Coal Co. v. Borda, 171 F.3d 175, 181, 21 BLR 2-545, 2-557 (4th Cir. 1999)("The content and
context of the letter itself, and not the Director's reaction to it, must govern whether it was a request for
modification.")
Additionally, contrary to employer's contention, the administrative law judge properly found that claimant's
letter constituted a request for modification. The standard for a modification request is so low that "[a]lmost any
sort of correspondence from the claimant can constitute a request for modification of a denial, so long as it is
timely and expresses dissatisfaction with a purportedly erroneous denial." Betty B Coal Company v. Director,
OWCP [Stanley], 194 F.3d 491, 497, 22 BLR 2-1, 2-11 (4th Cir. 1999). Claimant's August 10, 1993
letter states, "I protest this claim," alleges that DOL "disregarded 40 ¬ yr in the mines," and argues that a
physician whose opinion was credited similarly failed to consider claimant's coal mine employment. Director's
Exhibit 32. Claimant's letter meets the modification standard because it is timely and expresses dissatisfaction
with Judge Chao's prior findings. See Stanley, supra; Borda, supra. Therefore, we reject employer's
contention and affirm the administrative law judge's finding that claimant requested modification of the denial
of his 1992 claim. Accordingly, we turn to the administrative law judge's findings on the merits of entitlement.
To be entitled to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that
he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20
C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes
entitlement. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director,
OWCP, 11 BLR 1-26, 1-27 (1987).
Pursuant to Section 718.202(a)(4), employer argues that the administrative law judge erred in finding the
existence of legal pneumoconiosis established because he provided an inadequate rationale for crediting the
opinions of Drs. Abrahams, Koenig, and Rasmussen over those of Drs. Bellotte, Renn, Fino, Branscomb, and
Rosenberg. Employer's Brief at 38-43. The physicians agreed that claimant has a moderately severe, variable,
and partially reversible obstructive impairment. Based on claimant's medical history and the pattern of variable,
partially reversible impairment, most of the physicians diagnosed bronchial asthma, which they stated is unrelated
to the inhalation of coal mine dust.[3] Director's Exhibits 26, 30; Employer's Exhibits 4, 9, 14, 19, 22, 24, 25,
27-29. The physicians disagreed regarding the etiology of the fixed portion of claimant's obstructive impairment
that does not reverse with the administration of a bronchodilator. Drs. Renn and Branscomb stated that the non-reversible portion of claimant's impairment resulted from airway scarring due to prolonged asthma, and from
emphysema or chronic bronchitis due to smoking. Employer's Exhibits 28 at 15; 29 at 69, 115-16. Drs. Bellotte,
Fino, and Rosenberg attributed claimant's fixed obstruction to smoking. Employer's Exhibits 4, 9, 25. By
contrast, Drs. Rasmussen, and Koenig concluded that claimant's fixed obstruction was due to both smoking and
coal mine dust exposure, Director's Exhibit 26 at 3; Employer's Exhibit 27 at 55, 87; Claimant's Exhibit 10 at 3-5,
and Dr. Abrahams opined that all of claimant's obstruction resulted from smoking and coal mine dust exposure.
Claimant's Exhibit 1 at 4-7.
After setting forth the medical opinions and the physicians' qualifications, the administrative law judge
found that "despite the impressive credentials" of employer's experts, the opinions of Drs. Rasmussen, Koenig,
and Abrahams were "more persuasive regarding the pneumoconiosis issue." Decision and Order at 21. Employer
contends that the administrative law judge did not provide an adequate rationale for crediting the opinions of Drs.
Rasmussen, Koenig, and Abrahams because he merely stated that they were "more consistent with" the miner's
worsening breathing problems, coal mine employment and smoking histories, and test results. Decision and Order
at 21-22.
Upon review of the administrative law judge's Decision and Order as a whole, we hold that he provided
an adequate rationale for his weighing of the medical evidence. The administrative law judge specifically found
that the presence of an obstructive impairment that remained even after the administration of bronchodilator
medication was a factor that supported the "opinions of Drs. Rasmussen, Abrahams, and Koenig that the miner's
totally disabling respiratory impairment is due to a combination of factors, including pneumoconiosis." Decision
and Order at 22. As the trier of fact, the administrative law judge "must evaluate the evidence, weigh it, and draw
his own conclusions." Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, 21 BLR 2-23, 2-28 (4th Cir.
1997). The administrative law judge's inference that claimant's residual abnormality was consistent with a
diagnosis of legal pneumoconiosis was not unreasonable. See Mays, supra. Additionally, in weighing
together all of the relevant evidence, the administrative law judge specified that it was "the better reasoned medical
opinion evidence [that] establishe[d] the presence of legal pneumoconiosis as defined in §718.201."
Decision and Order at 22. The determination of whether a medical opinion is better reasoned is a credibility matter
for the administrative law judge. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 21 BLR 2-323,
2-335 (4th. Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441, 21 BLR 2-269, 2-275-76
(4th Cir. 1997); Trumbo v. Reading Anthracite Co., 17 BLR 1-85, 1-88-89 and n.4 (1993). The
administrative law judge's findings that the opinions of Drs. Rasmussen, Koenig, and Abrahams were more
persuasive because they were supported by the presence of a non-reversible impairment and because they were
better reasoned constitute valid reasons for crediting their opinions over those of employer's experts. See
Hicks, supra. Consequently, we reject employer's allegation of error and affirm the administrative law
judge's findings pursuant to 20 C.F.R. §§718.202(a)(4) and 718.202(a).
Pursuant to Section §718.204(c), employer contends that the administrative law judge erred in
according greater weight to the opinions of Drs. Rasmussen, Koenig, and Abrahams because he provided the same
rationale he relied on in finding the existence of legal pneumoconiosis established. Employer's Brief at 38. The
administrative law judge did cite the same rationale, Decision and Order at 24, but based on our foregoing analysis
of this issue, we reject employer's contention. Employer's additional argument, that the opinions of Drs.
Rasmussen, Koenig, and Abrahams are legally insufficient to establish total disability due to pneumoconiosis
because they do not distinguish between the effects of smoking and coal mine dust exposure, lacks merit.
Employer's Brief at 45-46. These three physicians stated unequivocally that although part of claimant's
impairment was due to smoking, his totally disabling obstruction was also due to or aggravated by coal mine dust
exposure. No more was required. See 20 C.F.R. §§718.201; 718.204(c); Jones v. Badger
Coal Co., 21 BLR 1-102, 1-107-08 (1998)(en banc)(A medical opinion need not "specifically
apportion the effects of the miner's smoking and his dust exposure in coal mine employment upon the miner's
condition.") Therefore, we affirm the administrative law judge's finding that claimant's total disability is due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(c) and that claimant is therefore entitled to benefits.[4]
Employer challenges the administrative law judge's award of an attorney's fee, alleging that the hourly rate
is unreasonable. The award of an attorney's fee is discretionary and will be upheld on appeal unless shown by
the challenging party to be arbitrary, capricious, or an abuse of discretion. Jones, 21 BLR at 1-108.
Subsequent to the issuance of the administrative law judge's Decision and Order--Awarding Benefits,
claimant's counsel submitted a complete, itemized fee petition to the administrative law judge, requesting
$44,043.75 for 195.75 hours of services at $225.00 per hour, plus $10,228.28 in expenses. Employer filed
objections to the requested hourly rate and to several time and expense entries. Claimant replied to employer's
objections. On September 30, 2002, the administrative law judge held a telephone conference on the record. After
hearing arguments from employer and claimant, the administrative law judge found that $225.00 an hour was a
reasonable rate, considering claimant's counsel's qualifications, experience, and the hourly rate he was awarded
previously by administrative law judges. [2002] Tr. at 12-13; see 20 C.F.R. §725.366(b). Upon
review of employer's additional objections and claimant's responses thereto, the administrative law judge struck
27 hours of time and $318.44 in expenses, and awarded a fee of $37,968.75 plus $9,909.84 in expenses. [2002]
Tr. at 13-48. In the ensuing Supplemental Decision and Order, the administrative law judge again awarded the
above-referenced fee and expenses, "based upon my rationale as stated during the telephone hearing conducted
on September 30, 2002." Supplemental Decision and Order at 2.
Employer contends that the administrative law judge abused his discretion by failing to explain why
$225.00 an hour is a reasonable rate when it exceeds the rate that claimant's counsel charges paying clients.
Employer's Brief at 4-8. In his fee petition to the administrative law judge and in his response on appeal,
claimant's counsel states that he charges a higher hourly rate for black lung work than for other matters because
of his expertise and experience in the black lung field. Fee Petition Cover Letter at 6-7; Claimant's Brief at 6-7.
We detect no abuse of discretion in the administrative law judge's finding that $225.00 was a reasonable
hourly rate. See Jones, supra. The applicable regulation directs the administrative law judge to consider,
inter alia, "the quality of the representation, the qualifications of the representative," and "any other
information which may be relevant to the amount of the fee requested." 20 C.F.R. §725.366(b). Based upon
the quality of the legal representation provided by claimant's counsel, and citing counsel's "professionalism" and
estimated win rate of 50 to 60 per cent in black lung cases, the administrative law judge found that claimant's
counsel is "the strongest Claimant's lawyer in the field. . . . [H]e is more or less setting the standard." [2002] Tr.
at 12. The administrative law judge also reasonably took into account recent attorney fee awards by the Office
of Administrative Law Judges granting claimant's counsel an hourly rate of $225.00. See 20 C.F.R.
§725.366(b); Fee Petition, Exhibits F-H. Thus, contrary to employer's contention, the administrative law
judge explained his finding that $225.00 was a reasonable hourly rate.
Employer presents no reason to disturb the administrative law judge's discretionary determination. See
Jones, supra. During the telephone conference, the administrative law judge considered employer's objection
that the requested hourly rate exceeds the $175.00 an hour that claimant's counsel charges for ordinary civil
litigation, along with counsel's explanation that $225.00 an hour is his customary billing rate for black lung work
because of his expertise in that field. [2002] Tr. at 6-11. The administrative law judge explained to employer that
"the reasons I am going to award $225 an hour I feel are--outweigh everything you said." [2002] Tr. at 11.
Consistently with Section 725.366(b), the administrative law judge then explained his finding with reference to
the quality of claimant's counsel's representation, his qualifications in the black lung field, and recent fee awards
granting him $225.00 an hour. See 20 C.F.R. §725.366(b). Considering that the administrative law
judge overruled employer's objection to the hourly rate based on a finding that claimant's counsel is the most
highly qualified claimant's representative practicing before him, employer presents no reason to remand this case
for the administrative law judge to state the obvious: that it is therefore reasonable for claimant's counsel to
charge more for black lung work than he charges for other matters in which he has less expertise. See Zeigler
Coal Co. v. Director, OWCP [Hawker], 326 F.3d 894, 902 n.9, --- BLR --- (7th Cir. 2003)(upholding
administrative law judge's finding that counsel reasonably charged a higher hourly rate for black lung cases
because of his experience in that field). Because employer has not demonstrated an abuse of discretion in the
administrative law judge's determination that the requested
hourly rate of $225.00 was reasonable, we affirm the administrative law judge's finding. See Jones, supra.
Accordingly, the administrative law judge's Decision and Order--Awarding Benefits and Supplemental
Decision and Order Awarding Attorney Fees are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
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 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
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2) We affirm as unchallenged on appeal the findings of approximately forty years of
coal mine employment, that the chest x-ray readings were inconclusive for the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(1), and that claimant is totally disabled pursuant to 20 C.F.R.
§718.204(b). See Coen v. Director, OWCP, 7 BLR 1-30, 1-33 (1984); Skrack v. Island
Creek Coal Co., 6 BLR 1-710, 1-711 (1983).
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3) Dr. Abrahams stated that asthma was absent. His opinion was that claimant has
obstructive airways disease due to both smoking and coal mine dust exposure. Claimant's Exhibit 1. Dr.
Koenig concluded that asthma was neither confirmed nor excluded by claimant's test results, but he opined
that assuming claimant has asthma, claimant is still totally disabled by obstructive lung disease due in part to
coal mine dust exposure. Claimant's Exhibit 10.
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4) Because we affirm the award of benefits, we need not address claimant's cross-appeal.
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NOTE: This is an UNPUBLISHED BLA Document.
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