Zeigler Coal Co. v. Director, Workers' Comp. Prog.

• Decision Date: 18 April 2003
• Docket Number: No. 01-3211.,No. 01-3998.,01-3211.,01-3998.
• Citation: 326 F.3d 894
• Parties: ZEIGLER COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and William E. Hawker, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

326 F.3d 894

ZEIGLER COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and William E. Hawker, Respondents.

No. 01-3211.

No. 01-3998.

United States Court of Appeals, Seventh Circuit.

Argued September 12, 2002.

Decided April 18, 2003.

COPYRIGHT MATERIAL OMITTED

Mark E. Solomons (argued), Greenberg Traurig, Washington, DC, for Zeigler Coal Co.

Rita Roppolo (argued), Dept. of Labor, Office of the Solicitor, Washington, DC, for Office of Workers' Compensation Programs.

Paul Rauch (argued), Harrison & Moberly, Indianapolis, IN, for William E. Hawker.

Thomas O. Shepherd, Jr., Benefits Review Board, Washington, DC, for Benefits Review Board.

Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Eleven years ago, William Hawker, a coal miner, filed a claim for black lung benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., and was granted benefits based in part on a finding of complicated pneumoconiosis. He was also awarded fees for the work of his attorneys and medical experts. Zeigler Coal, Hawker's employer, asks this court to reexamine the final grant of benefits and the award of attorney and expert fees. It argues that the Administrative Law Judge (ALJ) failed to weigh all relevant evidence before determining that Hawker had complicated pneumoconiosis, which entitled him to an irrebuttable presumption of pneumoconiosis and thereby black lung benefits, and improperly awarded attorneys' fees based on inadequate fee affidavits. We disagree. Zeigler also argues that Hawker was not entitled to recover the fees for his medical experts because they only submitted medical reports and were not "necessary witnesses attending the [ALJ] hearing" under section 28(d) of the Longshoremen's Act. We find, however, that section 28(d) does provide for the recovery of fees for medical experts who submit medical reports but do not attend the ALJ hearing and provide oral testimony. Therefore, we affirm the ALJ's decisions.

I. BACKGROUND

William Hawker applied for black lung benefits in 1981, while he was still working for Zeigler Coal; his claim was denied. He retired five years later, after a thirty-eight year career, and filed a second claim for benefits in 1992. The Department of Labor reexamined his claim in 1993 and determined that he was entitled to benefits. Zeigler appealed, and the matter was referred to the Office of Administrative Law Judges. In 1998, Administrative Law Judge Rudolf L. Jansen reviewed the medical reports of twenty physicians and determined that Hawker had complicated pneumoconiosis, which entitled him to an irrebuttable presumption of pneumoconiosis, and awarded him black lung benefits and fees for the work of his attorneys and medical experts. Zeigler, responsible for reimbursing the government for the benefits, appealed to the Benefits Review Board, which affirmed the ALJ decision and denied Zeigler's motion for reconsideration.

II. ANALYSIS

A. The Award of Black Lung Benefits

Zeigler appeals from a decision of the Benefits Review Board, but we actually review the decision of the ALJ, asking whether his decision is supported by substantial evidence, in accord with the law, and is rational. Amax Coal Co. v. Director, Office of Workers' Comp. Programs, 312 F.3d 882, 887 (7th Cir.2002); Zeigler Coal Co. v. Kelley and Office of Workers' Comp. Programs, 112 F.3d 839, 841 (7th Cir.1997); Peabody Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir.1988). We affirm the findings of the ALJ if they are supported by relevant evidence that a "rational mind might accept as adequate to support a decision." Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir.1992); see also Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1392 (7th Cir.1994). The ALJ must consider all relevant medical evidence, refrain from substituting his layman's expertise for that of qualified experts, and, absent evidence to the contrary or a legal basis, must not disregard the opinions of qualified experts. See Kelley, 112 F.3d at 841; Vigna, 22 F.3d at 1392; Wetherill v. Director, Office of Workers' Comp. Programs, U.S. Dept. of Labor, 812 F.2d 376, 382 (7th Cir.1987). The ALJ makes factual determinations; we do not reweigh the evidence or make credibility determinations, and we reserve only questions of law for de novo review. See Kelley, 112 F.3d at 841; Vigna, 22 F.3d at 1392; Summers v. Freeman United Coal Mining Co., 14 F.3d 1220, 1223 (7th Cir.1994); Keeling v. Peabody Coal Co., 984 F.2d 857, 862 (7th Cir.1993).

The Black Lung Benefits Act provides benefits to coal miners who are totally disabled by pneumoconiosis and to surviving dependents of miners who died as a result of pneumoconiosis. See 30 U.S.C. § 910; Kelley, 112 F.3d at 842. Miners may rely on statutory and regulatory presumptions to establish disability due to pneumoconiosis. Id.; Freeman United Coal Mining Co. v. Foster, 30 F.3d 834, 836 (7th Cir.1994). In Hawker's case, the ALJ found that Hawker had pneumoconiosis due to x-ray, biopsy, and physician opinion evidence, see 20 C.F.R. § 718.202(a)(1)-(2), (4), and that he was entitled to an irrebuttable presumption that he had pneumoconiosis due to x-ray and biopsy evidence of complicated pneumoconiosis an aggravated form of pneumoconiosis. See 20 C.F.R. §§ 718.202(a)(3); 718.304. Zeigler challenges the invocation of the irrebuttable presumption, arguing that the ALJ failed to consider all relevant evidence and failed to provide the reasons and bases for his finding of complicated pneumoconiosis.

Complicated pneumoconiosis may be established by (1) chest x-rays that yield one or more large opacities, defined as greater than one centimeter in diameter, and classified as Category A, B, or C according to the ILO-U/C classification system; (2) biopsy or autopsy findings of massive lesions in the lungs; or (3) other means that could reasonably be expected to yield the results described in the prior two methods. 20 C.F.R. § 718.304. In the present case, the ALJ determined that Hawker suffered from complicated pneumoconiosis based on the x-ray readings of four physicians dually-qualified as B-readers¹ and Board Certified Radiologists (BCRs), and one physician qualified only as a B-reader. They all found the large opacities necessary to find complicated pneumoconiosis, with one of the BCR/B-readers finding large opacities from three separate readings. In addition, contrary to Zeigler's claim that the ALJ did not consider all relevant evidence, the ALJ specifically indicated that he also relied on the readings of two dually-qualified BCR/B-readers and two B-readers who failed to observe the presence of large opacities, one of them failing to do so despite five separate readings.

Zeigler argues that the ALJ "did not explain why he rejected [one doctor's] opinion that the ability to read multiple films enabled him to render a more accurate assessment than the readers who interpreted only one or two films," and did not provide a "rationale for crediting [another doctor's] opinion on the biopsy or for discrediting ... contrary views." While the ALJ could have gone into greater detail in explaining why he favored one doctor's finding over another, that does not mean the ALJ did not in fact weigh all relevant evidence to find complicated pneumoconiosis. Zeigler further undermines its argument, however, when it quotes from the ALJ's finding, which explicitly stated that all relevant evidence was weighed and explained why greater weight was given to some opinions over others (Zeigler claims that this is a "simple declar[ation]").

Weighing together the biopsy, x-ray, and other medical evidence, ... the existence of complicated pneumoconiosis is established.... Although I find [four of the doctors who did not find pneumoconiosis] to be highly qualified, Board certified physicians, their opinions are not supported by the x-ray interpretations of the most qualified readers. I am persuaded by the large number of dually qualified readers who found large opacities and by the [one doctor's] opinion from the biopsy slides that Mr. Hawker has progressive, massive fibrosis. See 20 C.F.R. § 304(b). I note that the majority of the most highly qualified readers found evidence of complicated pneumoconiosis and that this finding is supported by the biopsy evidence of ... a Board Certified pathologist. Additionally, I note that [two doctors] found CT evidence of large opacities. Accordingly, I find that complicated pneumoconiosis is established and that pneumoconiosis may be presumed pursuant to 718.304.

(Emphasis added.)

Zeigler asserts that the ALJ provided no rationale for crediting the positive readings over the negative ones, and that the only rationale for the ALJ's credibility finding is his purported "nose counting" of the number of witnesses. Sahara Coal Co. v. Fitts, 39 F.3d 781, 782 (7th Cir.1994). However, as in Kelley, the ALJ in the present case did not mechanically count votes, but rather outlined and considered the conclusions of all reports and the qualifications of all readers before making his determination. In addition, the ALJ indicated that he gave greater weight to the opinions of "dually qualified" physicians, those of "the most qualified" physicians, and that of a "Board Certified pathologist." Furthermore, the ALJ properly cited Board precedent for the proposition that he may assign heightened weight to the interpretations by physicians with superior radiological skills. See Kelley, 112 F.3d at 842-43.

We find that the ALJ properly weighed all relevant medical evidence, and refrained from substituting his layman's expertise for that of qualified experts, in finding that Hawker suffered from complicated pneumoconiosis and was therefore entitled to an irrebuttable presumption of pneumoconiosis. Because his findings are rational, supported by substantial evidence, and follow the law, we affirm his finding that Hawker...