Cohen v. Pragma Corporation
| Decision Date | 19 March 2004 |
| Docket Number | BRB 03-0429 |
| Parties | LOIS J. COHEN, Claimant-Respondent v. PRAGMA CORPORATION and CIGNA INSURANCE COMPANY, Employer/Carrier- Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Modification and Benefits and the Supplemental Decision and Order Awarding Attorney Fees of Pamela Lakes Wood, Administrative Law Judge, United States Department of Labor.
John C. Lynch (Macleay, Lynch, Gregg & Lynch, P.C.), for claimant.
Keith L. Flicker (Flicker, Garelick & Associates), for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Granting Modification and Benefits and the Supplemental Decision and Order Awarding Attorney Fees (2002-LHC-0368) of Administrative Law Judge Pamela Lakes Wood rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 etseq., as extended by the Defense Base Act, 42 U.S.C. '1651 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant worked as an attorney for employer in Almaty, Kazakhstan from November 1997 through May 1998. She claims she developed pulmonary fibrosis as a result of her employment as well as multiple complications from treatment therefor. In her original claim, she contended she was exposed to environmental pollutants in Almaty. She developed what was originally diagnosed as "usual interstitial pneumonitis" (UIP) with fibrotic processes. [1] This was interchangeably referred to as idiopathic pulmonary fibrosis. Her treating physician, Dr. Wagner, [2] could not pinpoint the cause of her condition, but he agreed it developed while claimant was overseas exposed to harmful environmental pollutants. The administrative law judge initially found that employer rebutted the Section 20(a), 33 U.S.C. §920(a), presumption via the testimony of its expert, Dr. Friedman, who stated that claimant's condition was the result of a virus she contracted and was not the result of her employment exposures. The administrative law judge then credited this opinion over that of Dr. Wagner and denied claimant's claim. Decision and Order at 28, 31-32. Claimant appealed the decision, but before the Board could address the appeal, claimant moved for modification pursuant to 33 U.S.C. §922, and the Board dismissed the appeal. Cohen v. Pragma Corp., BRB No 01-739 (Sept. 25, 2001).
The administrative law judge conducted a hearing on claimant's motion for modification on July 22, 2002. At issue was claimant's contention that her condition is not idiopathic but was the direct result of exposure to pollutants, specifically cadmium, while she lived and worked in Almaty. She submitted articles reporting the poor air quality, the atmospheric inversion, and the presence of cadmium and other pollutants. The administrative law judge considered the new evidence claimant submitted as well as the evidence from the original hearing and found that claimant established a prima facie case invoking the Section 20(a) presumption. She also found that employer's evidence no longer sufficed to rebut the presumption, but even if it did, claimant established by a preponderance of the evidence that her conditions are the result of her employment in Almaty, Kazakhstan. Decision and Order on Modif. at 42-45. The administrative law judge, therefore, modified the prior denial and awarded claimant both disability and medical benefits. Employer appeals the award, asserting that the administrative law judge should not have reopened the case pursuant to Section 22 and that the evidence does not support the administrative law judge's findings on the merits. Claimant responds, urging affirmance.
Subsequently, claimant's counsel filed a petition for an attorney's fee for work performed during the course of both the original claim and the modification proceedings. Counsel requested a total fee of $240, 299.51, plus expenses. Employer filed objections. The administrative law judge reduced the fee in light of some of employer's objections; however, she awarded a fee in the amount of $160, 140, plus $14, 779.51 in costs. Supp. Decision and Order at 7. Employer appeals the fee award, and claimant responds, urging affirmance.
In light of the issues presented, it is necessary to recount the facts in some detail. Claimant testified that when she was working in Almaty, Kazakhstan, she began having shortness of breath upon exertion and had to reduce her level of exercise. She also testified that a friend commented on her yellowing skin color, and she stated that she began having diarrhea that ceased with antibiotics but resumed once treatment was completed. Tr.1 at 50-52. As a result of her unexplained, recurrent diarrheal condition, she returned to the United States for treatment on May 31, 1998. Six days later, she suffered extreme shortness of breath and went to the emergency room. Prior to her discharge on June 18, 1998, claimant became extremely ill, was put on a ventilator, and underwent a transbronchial lavage and an open lung biopsy. Cl. Ex. G1B at 700-702; Tr.1 at 54-58.
Results from the lavage and biopsy revealed active interstitial pneumonitis with fibrotic processes in mature, immature, and active stages. Cl. Ex. J at 14, 99-100; Tr.2 at 73-75. Based on the presence of the fibrous materials, claimant was put on Prednisone therapy. The dose was originally extremely high, and it was reduced over the course of the next nine months until it was discontinued. Cl. Ex. J at 19-22, 115-116; Tr.1 at 59. Although the steroid treatment halted claimant's active lung inflammation, a number of complications arose related to the Prednisone therapy. [3] Claimant was able to return to work as an attorney, traveling to Latvia in February 1999, Tbilisi, Georgia in June 1999, and Bosnia in early 2000; however, due to her continuing conditions and surgeries, she worked only sporadically after June 2001. Tr.1 at 68, 76-77; Tr.2 at 42-43.
Following the administrative law judge's first decision, wherein she stated that one of the reasons she denied benefits was because claimant could not "identify a causative agent[, ]" Decision and Order at 29, claimant and her attorneys undertook the task of searching for such an agent. Upon reading an article by the Green Women Ecological News Agency of Kazakhstan, Cl. Ex. L1, and other similar articles, Cl. Exs. L2-L31, claimant came to believe that cadmium was the cause of her disease. Claimant and her attorneys conducted more research, re-connected with Dr. Wagner, obtained his opinion on this theory, and filed a motion for modification pursuant to Section 22.
Employer first contends the administrative law judge erred in reopening the denial of benefits pursuant to Section 22. Employer argues that claimant's theory on modification cadmium-related illness, is different from her original theory of recovery, environmental pollutants-related illness, and is based on materials that cannot be considered "new evidence" as they were published and available before the first hearing. Employer asserts that claimant merely changed her theory of causation to fill in the gaps noted in the administrative law judge's first decision and, consequently, claimant was improperly permitted to re-litigate her claim. We reject employer's argument.
Section 22 of the Act displaces doctrines of finality such as res judicata and the law of the case doctrine, see Banks v. Chicago Grain Trimmers Ass'n, Inc., 390 U.S. 459, reh'g denied, 391 U.S. 929 (1968); Consolidation Coal Co. v. Borda, 171 F.3d 175 (4th Cir. 1999); Jessee v. Director, OWCP, 5 F.3d 723 (4th Cir. 1993), and permits the modification of a final award or denial if the party seeking to alter the award or denial can establish either a change in conditions or a mistake in the determination of a fact. 33 U.S.C. §922; Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1(CRT) (1995). The administrative law judge has great discretion to correct any mistakes of fact, see Banks, 390 U.S. 459, and may consider wholly new evidence, cumulative evidence, or may further reflect on evidence initially submitted. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971). If the moving party asserts a change in condition, the award or denial may be modified if there is a change in either an employee's wage-earning capacity or a change in her physical condition. Rambo I, 515 U.S. 291, 30 BRBS 1(CRT).
Claimant moved for modification on the basis of a mistake in fact regarding the issues of causation and rebuttal. Thus, the administrative law judge has great discretion in reviewing the evidence regardless of whether it is "wholly new, " cumulative or old evidence. O'Keeffe, 404 U.S. 254. While acknowledging this holding, employer argues that claimant's motion for modification here was based on new evidence, namely the articles depicting Almaty as being extremely polluted with cadmium and other harmful particles. Employer asserts that as this evidence was available prior to the time of the first hearing, it cannot be considered "wholly new" evidence and should not be permitted to be the basis for granting a motion for modification. Employer asserts that "wholly new" evidence under the Act should be defined as:
evidence which was not readily available or could not with due diligence have been discovered within ten days of the Administrative Law Judge's ruling in the...
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