Blake v. Elm Grove Coal Co., BRB 04-0186 BLA
| Decision Date | 28 December 2004 |
| Docket Number | BRB 04-0186 BLA,04-0186 |
| Parties | BLA-S IVAN RANDLE BLAKE Claimant- Respondent v. ELM GROVE COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Awarding Benefits and Attorneys’ Fee Order of Daniel L. Leland, Administrative Law Judge United States Department of Labor.
William S. Mattingly (Jackson & Kelly), Morgantown, West Virginia, for employer.
Thomas E. Johnson and Anne Megan Davis (Johnson, Jones, Snelling Gilbert & Davis, P.C.), Chicago, Illinois.
Rita Roppolo (Howard M. Radzely, Solicitor of Labor; Donald S Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor, 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order - Awarding Benefits and Attorneys’ Fee Order (2002-BLA-5180) of Administrative Law Judge Daniel L. Leland 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). The relevant procedural history of this case is as follows: Claimant filed an application for benefits on August 5, 1986. The district director denied the claim as claimant did not establish any of the elements of entitlement. Claimant filed a second claim on April 4, 2001. Subsequent to the district director’s determination of entitlement, employer requested a hearing which was held before Judge Leland (the administrative law judge).
At the hearing, the administrative law judge excluded a number of exhibits proffered by employer on the ground that they exceeded the evidentiary limitations set forth in 20 C.F.R. §725.414. Additionally, the administrative law judge denied employer’s motion to compel discovery of letters between claimant’s counsel and claimant’s medical experts. In the Decision and Order - Awarding Benefits, the administrative law judge determined that claimant demonstrated a change in an applicable condition of entitlement as required by 20 C.F.R. §725.309(d), because the newly submitted evidence established the existence of pneumoconiosis. On the merits, the administrative law judge found that claimant established that he is totally disabled due to pneumoconiosis. Accordingly, the administrative law judge awarded benefits.
After considering claimant’s counsel’s fee petition and employer’s objections thereto, the administrative law judge issued an Attorneys’ Fee Order in which he awarded $32, 512.25 for the work of two attorneys and a paralegal, plus expenses. On appeal, employer challenges the administrative law judge’s findings regarding the exclusion of evidence offered by employer, the administrative law judge’s weighing of the medical evidence of record, and the award of attorney fees. Claimant has responded and urges affirmance of the award of benefits and attorney fees. The Director, Office of Workers’ Compensation Programs (the Director), has also responded and requests that the Board affirm the administrative law judge’s evidentiary rulings. Employer has filed a reply brief reiterating its contentions.
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). The Board reviews the administrative law judge’s procedural rulings for abuse of discretion. Dempsey v. Sewell Coal Co ., BRB Nos. 03-0615 BLA, 03-0615 BLA-A at 3 (Jun. 28, 2004)(en banc )(published); see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc ).
As an initial matter, employer contends that 20 C.F.R. §725.414 of the revised black lung regulations is invalid because it is contrary to the Act’s requirement that “all relevant evidence shall be considered . . . .” 30 U.S.C. §923(b). We reject employer’s argument. Employer has overlooked the statutory authority under which the Department of Labor acted when it promulgated Section 725.414. Specifically, the Department of Labor relied upon other language in Section 923(b) which incorporates a provision of the Social Security Act authorizing the agency to regulate “the nature and extent of the proofs and evidence . . . .” 30 U.S.C. §923(b), incorporating 42 U.S.C. §405(a); Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 62 Fed. Reg. 3338, 3358 (Jan. 22, 1997). Additionally, the Department of Labor relied upon Section 556(d) of the Administrative Procedure Act (APA), 5 U.S.C. §556(d), as incorporated into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a), which empowers the agency to “provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence” as “a matter of policy.” 5 U.S.C. §556(d), as incorporated into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C. §919(d) and 5 U.S.C. §554(c)(2); 62 Fed. Reg. at 3359. The United States Court of Appeals for the District of Columbia Circuit cited these statutory provisions in upholding the validity of Section 725.414. Nat'l Mining Ass'n v. Dept. of Labor, 292 F.3d 849, 873-74 (D.C. Cir. 2002)(NMA ). We therefore reject employer’s contention that Section 725.414 is invalid because it is in conflict with Section 923(b) of the Act. Dempsey, BRB Nos. 03-0615 BLA, 03-0615 BLA-A at 6-7.
Employer also relies upon the Fourth Circuit’s decision in Underwood v. Elkay Mining, Inc., 105 F.3d 946, 21 BLR 2-23 (4th Cir. 1997), which was decided prior to the promulgation of the regulatory revisions. [1] In Underwood, the court held that administrative law judges “must consider all relevant evidence, erring on the side of inclusion, but . . . they should exclude evidence that becomes unduly repetitious in the sense that the evidence provides little or no additional probative value.” Underwood, 105 F.3d at 951, 21 BLR at 2-32. Because the issue in Underwood concerned case-by-case rulings by administrative law judges under Section 556(d) of the APA, the court did not decide whether the Department of Labor had the authority to impose limits on the admission of evidence in black lung claims. Nevertheless, the court recognized “the discretion reposed in agencies when it comes to deciding whether to permit the introduction of particular evidence at a hearing, ” so long as the agency “is not arbitrary . . . .” Underwood, 105 F.3d at 950, 21 BLR at 2-30-32 (citations omitted). Consequently, we reject employer’s argument that Section 725.414 is invalid because it conflicts with Underwood . Dempsey, BRB Nos. 03-0615 BLA, 03-0615 BLA-A at 7-8.
With respect to the administrative law judge’s application of Section 725.414, at the hearing, the administrative law judge admitted into the record all of the items marked as Director’s Exhibits and Claimant’s Exhibits, with the understanding that they might be excluded after he reviewed them. Hearing Transcript at 20-21, 23. With respect to employer’s proposed exhibits, the administrative law judge excluded Dr. Wiot’s readings of five x-rays, Dr. Shipley’s readings of eight x-rays, Dr. Spitz’s reading of two x-rays, Dr. Fino’s reading of one x-ray, Dr. Renn’s reading of one x-ray, and Dr. Morgan’s record review. Hearing Transcript at 41-54. The administrative law judge returned these documents to employer’s counsel at the close of the hearing.
In his Decision and Order - Awarding Benefits, the administrative law judge excluded Dr. Altmeyer’s medical opinion and the x-ray interpretations offered by Drs. Fino, Renn, and Spitz. The administrative law judge also excluded Dr. Cohen’s second written opinion as the doctor did not address an x-ray interpretation or medical test that he performed. Decision and Order at 2 nn. 1, 2.
Employer maintains that the administrative law judge erred in excluding relevant evidence and in failing to keep the excluded exhibits with the record. The Director concurs with employer regarding the administrative law judge’s decision to return to employer the evidence excluded at the hearing, citing the regulations applying to the Office of Administrative Law Judges and stating that the better practice is to retain the rejected exhibits in case the exclusion is challenged on appeal. Nevertheless, the Director argues that the administrative law judge’s error is harmless in this case, as the administrative law judge acted within his discretion in declining to admit this evidence.
We affirm the administrative law judge’s decision to exclude the evidence that exceeded the evidentiary limitations. The administrative law judge rationally found employer’s argument that the excess evidence should be admitted because it is relevant to be insufficient to establish good cause pursuant to 20 C.F.R. §725.456(b)(1). Hearing Transcript at 45; see Dempsey, BRB Nos. 03-0615 BLA, 03-0615 BLA-A at 10-11. Employer raised this argument at the hearing and cited Underwood in support. The administrative law judge acted within his discretion in rejecting employer’s contention on the grounds that Underwood was decided before the implementation of the new regulations and the decision of the United States Court of Appeals for the District of Columbia in NMA established the validity of the evidentiary...
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