Fletcher v. Harman Mining Co., BRB 11-0836 BLA
| Decision Date | 12 October 2012 |
| Docket Number | BRB 11-0836 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | PATRICIA FLETCHER (Widow of DONALD FLETCHER) Claimant-Respondent v. HARMAN MINING COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Second Remand Granting Benefits and the Supplemental Order Awarding Supplemental Fees of Pamela Jane Lakes, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Ryan C. Gilligan (Wolfe Williams Rutherford & Reynolds), Norton, Virginia, for claimant.
Laura Metcoff Klaus and W. William Prochot (Greenberg Traurig LLP) Washington, D.C., for employer/carrier.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer/carrier (employer) appeals the Decision and Order on Second Remand Granting Benefits and the Supplemental Order Awarding Supplemental Fees (2006-BLA-05812) of Administrative Law Judge Pamela Jane Lakes rendered in connection with a survivor's claim filed on June 6, 2005, pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C §§901-944 (2006), amended by Pub. L. No 111-148, §1556, 124 Stat. 119 (2010) () (the Act). The relevant procedural history of this case is as follows. The administrative law judge issued a Decision and Order on Remand Granting Benefits and Awarding Fees on December 3, 2010 and employer appealed to the Board, which docketed the case under BRB No. 11-0222 BLA. [1] While employer's appeal was pending, the administrative law judge issued a Supplemental Order Awarding Supplemental Fees dated July 29, 2011. Employer appealed the Supplemental Order and the Board docketed the case under BRB No. 11-0836 BLA.
Subsequently, the Board issued its Decision and Order in BRB No. 11-0222 BLA. The Board vacated the administrative law judge's finding that Dr. Perper's medical opinion was sufficient to establish the existence of legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). P.F. [Fletcher] v. Harman Mining Co., BRB No. 11-0222 BLA, slip op. at 6 (Nov. 29, 2011) (unpub.). The Board also vacated the administrative law judge's finding that the evidence established that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c), as the administrative law judge did not set forth her rationale in compliance with the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), 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). Id. at 7-8. The Board did not address employer's challenge to the attorney fee award rendered in the Decision and Order Granting Benefits and Awarding Fees, because the issues were premature in light of the Board's determination to vacate the award of benefits. Id. at 9.
In the administrative law judge's Decision and Order on Second Remand Granting Benefits, issued on March 2, 2012, the administrative law judge reconsidered Dr. Perper's opinion and again found that it was sufficient to establish the existence of legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge further found that Dr. Perper's opinion was sufficient to establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the administrative law judge awarded benefits. [2] The administrative law judge again approved an attorney's fee of $9, 350.00 for legal services performed from March 24, 2006 to December 27, 2008.
On March 13, 2012, the Board received employer's notice of appeal with regard to the administrative law judge's Decision and Order on Second Remand. This appeal was docketed under BRB No. 12-0302 BLA and consolidated with employer's appeal in BRB No. 11-0836 BLA for the purpose of decision only.
In employer's appeal of the administrative law judge's Decision and Order on Second Remand, it contends that the administrative law judge erred in finding that the miner suffered from legal pneumoconiosis and that clinical and legal pneumoconiosis hastened his death. In addition, employer contends that the administrative law judge deprived employer of a fair hearing, in violation of the APA, by prejudging the issues in this case and, therefore, was obligated to recuse herself. Employer further asserts that the administrative law judge was biased and requests that the Board remand this case with instructions that it be assigned to a different administrative law judge. With respect to the administrative law judge's disposition of the attorney fee petitions in the Supplemental Order and the Decision and Order on Second Remand, employer contends that the amount of the fees awarded is excessive.
Claimant responds in support of the administrative law judge's award of benefits and urges the Board to reject employer's assertion of bias and its request that this case be remanded and transferred to a new administrative law judge. Claimant also urges affirmance of the administrative law judge's attorney's fee awards in BRB Nos. 12-0302 BLA and 11-0836 BLA. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. [3] 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).
As an initial matter, employer requests that the award of benefits be vacated and the case reassigned to another administrative law judge, due to the administrative law judge's prejudgment of the relevant issues. Employer bases its contention upon the administrative law judge's statements asserting that the Board's remand was based upon mischaracterizations of her findings and the application of an incorrect standard of review. See Decision and Order on Second Remand at 2-3, 5, 8, 14. Employer maintains that the administrative law judge's comments establish that she was not an impartial adjudicator and, therefore, that she deprived employer of its right to due process. We deny employer's request.
The Board has held that a party alleging bias or prejudice on the part of the administrative law judge has a heavy burden to satisfy. Cochran v. Consolidation Coal Co., 16 BLR 1-101, 1-107-08 (1992). However, as the Board stated in Hall v. Director, OWCP, 12 BLR 1-80 (1988), “the United States judicial system relies on the most basic of principles, that a lower forum must not deviate from the orders of a superior forum, regardless of the lower forum's view of the instructions given it.” Hall, 12 BLR at 1-82. Notwithstanding the administrative law judge's comments regarding the Board's decision to remand the case, the record does not reflect that the administrative law judge deviated from the Board's instructions or exhibited bias against employer. Consolidation Coal Co. v. Williams, 453 F.3d 609, 620, 23 BLR 2-345, 2-358 (4th Cir. 2006), citing Liteky v. U.S., 510 U.S. 540, 555 (1994) (expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display, do not establish bias or partiality). We thus reject employer's request that the award of benefits be vacated and the case remanded to another administrative law judge. Marcus v. Director, OWCP, 548 F.2d 1044, 1050 (D.C. Cir. 1976); Zamora v. C.F. & I. Steel Corp., 7 BLR 1-568 (1984); see also 20 C.F.R. §725.352.
In order to establish entitlement to benefits pursuant to 20 C.F.R. Part 718, in a survivor's claim filed on or after January 1, 1982, claimant must establish that the miner had pneumoconiosis arising out of coal mine employment and that his death was due to pneumoconiosis. See 20 C.F.R §§718.202(a), 718.203, 718.205(c); Trumbo v. Reading Anthracite Co., 17 BLR 1-85, 1-87-88 (1993). The miner's death will be considered due to pneumoconiosis if the evidence establishes that pneumoconiosis caused the miner's death, that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death, if death was caused by complications of pneumoconiosis or if the presumption relating to complicated pneumoconiosis, set forth in 20 C.F.R. §718.304, is applicable. See 20 C.F.R. §718.205(c)(1)-(3). Pneumoconiosis is a substantially contributing cause of a miner's death if it hastens the miner's death. See 20 C.F.R. §718.205(c)(5); Bill Branch Coal Co. v. Sparks, 213 F.3d 186, 190, 22 BLR 2-251, 2-259 (4th Cir. 2000); Shuff v. Cedar Coal Co., 967 F.2d 977, 979-80, 16 BLR 2-90, 2-92-93 (4th Cir. 1992).
Employer contends that the administrative law judge erred in finding that the medical opinion evidence established the existence of legal pneumoconiosis [4]pursuant to 20 C.F.R §718.202(a)(4). Specifically, employer asserts that the administrative law judge did not reconsider the opinion of Dr. Perper and did not provide an adequate explanation for crediting Dr. Perper's opinion. After consideration of the administrative law judge's Decision and Order on Second Remand, the arguments raised on appeal, and the evidence of record, we conclude that the administrative law judge's Decision and Order on Second Remand is supported by substantial evidence, is consistent with applicable law, and contains no reversible error.
Pursuant to employer's previous appeal, the Board agreed with employer that the administrative law judge did not...
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