Martin v. Peabody Coal Co.
| Decision Date | 26 July 2002 |
| Docket Number | BRB 01-0731 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | DALE MARTIN Claimant-Respondent v. PEABODY COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in -Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand - Awarding Benefits and Supplemental Decision and Order Granting Attorney Fees of Rudolf L. Jansen, Administrative Law Judge, United States Department of Labor.
Paul (Rick) Rauch (McNamara Fearnow & McSharar P.C.) Indianapolis, Indiana, for claimant.
W William Prochot (Greenburg Traurig LLP), Washington, D.C for employer.
Before: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER.
Employer appeals the Decision and Order - Awarding Benefits and Supplemental Decision and Order Granting Attorney Fees (98-BLA-0370) of Administrative Law Judge Rudolf L. Jansen with respect to 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.[1] Employer appeals from an award of benefits with respect to a miner's claim filed on February 17, 1993. Director's Exhibit 1. This is the second time that this case has been before the Board. In his initial Decision and Order, the administrative law judge denied benefits based upon his determination that although claimant is totally disabled, claimant did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. § 718.202(a) (2000).[2] Upon considering claimant's appeal, the Board affirmed the administrative law judge's findings under Section 718.202(a)(1)-(3) (2000), but vacated the administrative law judge's determination that the medical opinions of record did not support a finding of pneumoconiosis pursuant to Section 718.202(a)(4) (2000). The Board remanded the case to the administrative law judge for reconsideration of the medical opinions of Drs. Combs Garcia, and Cohen, holding that the administrative law judge did not adequately address their status as examining and/or treating physicians. The Board also indicated that the administrative law judge erred in rejecting the opinions of Drs. Combs and Garcia on the ground that each of these physicians underestimated claimant's smoking history. Martin v. Peabody Coal Co., BRB No. 99-1141 BLA (Oct. 30, 2000)(unpub.), slip. op. at 3-4.
On remand, the administrative law judge found that the medical opinions of record were sufficient to establish the existence of pneumoconiosis. The administrative law judge further determined that claimant was entitled to the presumption, set forth in 20 C.F.R. § 718.203(b), that his pneumoconiosis arose out his coal mine employment and that the evidence of record was sufficient to establish that claimant is totally disabled due to pneumoconiosis.[3] Accordingly, benefits were awarded. In a Supplemental Decision and Order, the administrative law judge ordered employer to pay claimant's counsel $27, 578.33 in attorney fees and expenses.
Employer argues on appeal that the administrative law judge did not properly weigh the relevant medical opinions under Sections 718.202(a)(4) and 718.204(b) (2000). Employer also contends that the administrative law judge did not properly consider counsel's attorney fee petition. Claimant has responded to employer's arguments concerning the merits of the present case and urges affirmance of the administrative law judge's Decision and Order. Claimant's counsel also urges affirmance of the administrative law judge's Supplemental Decision and Order awarding attorney fees. In addition, counsel has submitted a Supplemental Application for Attorney Fees. The Director, Office of Workers' Compensation Programs (the Director), has not filed a brief in this appeal.
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law. 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).
Pursuant to both Sections 718.202(a)(4) and 718.204(c), the administrative law judge accorded greater weight to the opinion in which Dr. Combs stated that claimant has pneumoconiosis and is totally disabled by it based upon Dr. Combs's status as a treating physician. Decision and Order on Remand at 4; Director's Exhibit 10; Claimant's Exhibit 1; Employer's Exhibit 3. The administrative law judge also noted that Dr. Combs's diagnoses were supported by the opinions of Dr. Garcia, who examined claimant, and Dr. Cohen, who reviewed the medical evidence of record. Id.; Director's Exhibit 39; Claimant's Exhibits 8, 20, 23. The administrative law judge determined that the opinions in which Drs. Renn, Cook, and Repsher stated that claimant does not have pneumoconiosis were entitled to less weight, as Drs. Renn and Repsher did not examine claimant and Dr. Cook relied upon a smoking history that was "substantially shorter" than that relied upon by the other physicians of record. Decision and Order on Remand at 4; Director's Exhibit 23; Employer's Exhibits 3, 6, 33, 38, 41, 49, 50, 51. Pursuant to Section 718.204(c), the administrative law judge discredited the opinions of Drs. Renn, Repsher, and Cook regarding the cause of claimant's totally disabling impairment on the ground that none of these physicians had diagnosed pneumoconiosis.
Employer asserts that the administrative law judge erred in giving greatest weight to Dr. Combs's medical opinion, as Dr. Combs did not indicate whether coal dust exposure was a significant or substantial factor contributing to claimant's obstructive impairment in accordance with the definition of pneumoconiosis set forth in 20 C.F.R. § 718.201. Employer's Brief at 14. Employer raises essentially the same argument with respect to Dr. Garcia's opinion. Regarding Dr. Cohen's reports, employer maintains that Dr. Cohen's findings of pneumoconiosis and total disability due to pneumoconiosis are not supported by adequate reasoning or documentation, as Dr. Cohen did not indicate to what extent coal dust exposure, as opposed to cigarette smoking, was responsible for claimant's totally disabling obstructive impairment. Employer further alleges that the administrative law judge's reliance upon treating or examining physician status is inappropriate in light of the holding of the United States Court of Appeals for the Seventh Circuit in Peabody Coal Co. v. McCandless, 255 F.3d 465, 22 BLR 2- (7th Cir. 2001). Employer also asserts that the administrative law judge erred in neglecting to explicitly address the CT scan evidence and the medical report of Dr. Deppe. Finally, employer argues that the administrative law judge erred in discrediting the opinions of Drs. Cook, Renn, and Repsher. These contentions have merit, in part.
Pursuant to Section 718.201(a)(2), a pulmonary impairment, such as that diagnosed by Dr. Combs, constitutes "legal" pneumoconiosis if that impairment is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §718.201. Dr. Combs stated that claimant had chronic obstructive pulmonary disease (COPD) and restrictive lung disease and identified cigarette smoke, welding fumes, and coal and rock dust as the sources of these conditions with no explicit indication of the extent to which each exposure contributed to claimant's respiratory and pulmonary diseases. Director's Exhibit 10; Claimant's Exhibit 1. Dr. Combs also diagnosed "clinical" coal workers' pneumoconiosis, as defined in Section 718.201(a)(1), based upon positive chest x-ray interpretations performed by Drs. Aycoth and Pathak; it is unclear from the administrative law judge's Decision and Order on Remand whether he credited Dr. Combs's diagnosis of clinical pneumoconiosis, his diagnosis of legal pneumoconiosis, or both[1] Absent an explanation in the administrative law judge's Decision and Order on Remand of which of Dr. Combs's diagnoses he was relying upon and identification of the underlying support for that diagnosis, the administrative law judge's crediting of Dr. Combs's opinion cannot be affirmed. See Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989); Fetterman v. Director, OWCP, 7 BLR 1-688 (1985); McCune v. Central Appalachian Coal Co., 6 BLR 1-996 (1984).
Similarly, Dr. Garcia concluded in his medical report that claimant has severe emphysema, manifested in a totally disabling pulmonary impairment. Director's Exhibit 39. Dr. Garcia concluded that 95% of claimant's impairment was due to his "extensive cigarette smoking history" with the remaining 5% caused by coal dust exposure. Id. The administrative law judge did not determine whether Dr. Garcia's finding was sufficient to establish that claimant's impairment was significantly related to, or substantially aggravated by dust exposure in coal mine employment in accordance with Section 718.201(a)(2). In addition, Dr. Garcia also diagnosed coal workers' pneumoconiosis by chest x-ray and indicated that a CT scan of claimant's chest was consistent with coal workers' pneumoconiosis. Id. The administrative law judge did not identify which of Dr. Garcia's diagnoses of pneumoconiosis corroborated Dr. Combs's opinion.
We reject, however, employer's assertion that the administrative law judge erred in treating Dr. Cohen's opinion as containing a reasoned and documented diagnosis of pneumoconiosis pursuant to Section 718.202(a)(4). Although Dr. Cohen stated that he could not precisely apportion the respective degrees to which cigarette smoking and coal dust exposure contributed to claimant's totally disabling...
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