RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 122
ay - August 1995

Circuit courts of appeals

In Malcomb v. Island Creek Coal Co. , 15 F.3d 364 (4th Cir. 1994), the court reaffirmed its holding in Massey to state that, under § 727.203(b)(3), a nonexamining physician's opinion which attributes a claimant's lung condition to smoking is not of probative value where the examining physician, while noting the miner's smoking history, did not find that it contributed to his condition. See also Johnson v. Old Ben Coal Co. , ___ B.L.R. ___, BRB No. 94-0164 BLA (June 21, 1995) (applying Malcomb to a case arising in Fourth Circuit).

[ VIII - 53, rebuttal under § 727.203(b)(3) ]

In Lisa Lee Mines v. Director, OWCP , ___ F.3d ___, Case No. 94-2523 (4th Cir. June 16, 1995), the Fourth Circuit rejected the Board's holding in Spese v. Peabody Coal Co. , 11 B.L.R. 1-174 (1988) as the standard for establishing a "material change in conditions" in a duplicate claim. The court determined that "[t]he purpose of section 725.309(d) is not to allow a claimant to revisit an earlier denial of benefits, but rather only to show that his condition has materially changed since the earlier denial." As such, the court concluded that Spese "is an impermissible reading of section 725.309(d)" and that it would apply the standard set forth by the Seventh Circuit in Sahara Coal Co. v. Director, OWCP [McNew] , 946 F.2d 554 (7th Cir. 1991).

[ III - 91, "material change in conditions" - duplicate claim ]

In Blakeley v. Amax Coal Co. , ___ F.3d ___, Case No. 94-2169 (7th Cir. May 25, 1995), the Seventh Circuit held that, under § 725.305(a), the claimant must demonstrate that "he worked for fifteen years in an underground mine or in a surface mine with dust conditions substantially similar to those found in underground mines." In this vein, the court further held that the claimant "'bears the burden of establishing comparability' but 'must only establish that he was exposed to sufficient coal dust in his surface mine employment.'" The court stated that will generally defer to the expertise of the administrative law judge in determining the similarity of surface and underground mine conditions.

Once invoked, the presumption at § 725.305(a) may be rebutted if the employer demonstrates, by a preponderance of the evidence, that either (1) the miner does not, or did not, have pneumoconiosis, or (2) his respiratory or pulmonary impairment did not arise out of his coal mine employment. Citing to Shelton v. Director, OWCP , 899 F.2d 690 (7th Cir. 1990), the court stated that, with regard to the second avenue of rebuttal, if the employer establishes that the miner would have been disabled notwithstanding regardless of his exposure to coal dust, then his disability did not arise out of coal mine employment. Thus, although the experts in Blakeley did not conclusively "rule out" coal workers' pneumoconiosis as a possible factor in the claimant's condition, rebuttal of the presumption was nevertheless accomplished by Employer as the record evidenced that the miner would have been totally disabled notwithstanding any complications arising from his exposure to coal mine dust. Beasley , 957 F.2d at 328.

Finally, in applying the "hostile-to-the-Act" rule, the Seventh Circuit noted that the rule allows an administrative law judge to "disregard medical testimony when a physician's testimony is affected by his subjective personal opinions about pneumoconiosis which are contrary to the congressional determinations implicit in the Act's provisions." The court offered examples, including where a physician states that he will never diagnose the existence of pneumoconiosis in the absence of a positive x-ray, Robinson v. Missouri Mining Co. , 955 F.2d 1181, 1183 (8th Cir. 1992); or when a physician testifies, directly contrary to the Act, that simple pneumoconiosis can never be totally disabling, Kaiser Steel Corp. v. Director, OWCP , 748 F.2d 1426, 1430 (10th Cir. 1984). However, a physician's expression of a view that is at odds with the Act is not enough by itself to exclude that opinion from consideration. Wetherhill v. Director, OWCP , 812 F.2d 376, 382 (7th Cir. 1987).

Applying this standard, the court found in this case that the opinion of a physician that coal dust exposure does not cause obstructive impairment and therefore smoking must have caused claimant's condition, did not rise to the level of "hostility." The court explained that the physician's opinion did not fall into a traditionally hostile category nor contravene the Act's definition of pneumoconiosis. According to the court, the Act and the regulations define "pneumoconiosis" broadly and do not establish that dust exposure from coal mine work can necessarily cause obstructive pulmonary disease or impairment. Rather, the facts and medical opinions in each specific case answer this question.

[ VI - 10, presumption at § 718.305 ; IV - 79, hostile-to-the-Act rule ]

Benefits Review Board

In Goodloe v. Peabody Coal Co. , ___ B.L.R. ___, BRB No. 92-1738 BLA (June 27, 1995) (published), the Board held that a fee cannot be enhanced to accommodate its contingent nature, citing to City of Burlington v. Dague , 112 S. Ct. 2638 (1992), but that enhancement for unusually lengthy delay may be an appropriate factor to consider in determining the hourly rate as noted in Missouri v. Jenkins , 109 S. Ct. 2463 (1989). However, the Board reiterated its holding in Bennett v. Director, OWCP , 17 B.L.R. 1-72 (1992) that a request for enhancement due to delay must be made at the time the fee petition is submitted and counsel is entitled to his or her customary hourly rate at the time services were performed and not when the fee application is filed. Finally, the Board reaffirmed that contingent fee arrangements are invalid.

[ XI - 1, attorney fees ]