Zeigler Coal Co v. OWCP

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3211 & 01-3998
ZEIGLER COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
and WILLIAM E. HAWKER,
Respondents.
____________
Petitions for Review of Decisions and Orders
of the Benefits Review Board,
United States Department of Labor.
____________
ARGUED SEPTEMBER 12, 2002—DECIDED APRIL 18, 2003
____________
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Eleven years ago, William
Hawker, a coal miner, filed a claim for black lung bene-
fits pursuant to the Black Lung Benefits Act, 30 U.S.C.
§ 901 et seq., and was granted benefits based in part on
a finding of complicated pneumoconiosis. He was also
awarded fees for the work of his attorneys and medical
experts. Zeigler Coal, Hawker’s employer, asks this court
to reexamine the final grant of benefits and the award of
attorney and expert fees. It argues that the Administra-
tive Law Judge (ALJ) failed to weigh all relevant evidence
before determining that Hawker had complicated pneumo-
coniosis, which entitled him to an irrebuttable presumption
2 Nos. 01-3211 & 01-3998
of pneumoconiosis and thereby black lung benefits, and
improperly awarded attorneys’ fees based on inadequate
fee affidavits. We disagree. Zeigler also argues that Hawk-
er was not entitled to recover the fees for his medical
experts because they only submitted medical reports and
were not “necessary witnesses attending the [ALJ] hearing”
under section 28(d) of the Longshoremen’s Act. We find,
however, that section 28(d) does provide for the recovery
of fees for medical experts who submit medical reports
but do not attend the ALJ hearing and provide oral testi-
mony. Therefore, we affirm the ALJ’s decisions.
I. BACKGROUND
William Hawker applied for black lung benefits in 1981,
while he was still working for Zeigler Coal; his claim was
denied. He retired five years later, after a thirty-eight year
career, and filed a second claim for benefits in 1992. The
Department of Labor reexamined his claim in 1993 and
determined that he was entitled to benefits. Zeigler ap-
pealed, and the matter was referred to the Office of Ad-
ministrative Law Judges. In 1998, Administrative Law
Judge Rudolf L. Jansen reviewed the medical reports of
twenty physicians and determined that Hawker had
complicated pneumoconiosis, which entitled him to an
irrebuttable presumption of pneumoconiosis, and awarded
him black lung benefits and fees for the work of his attor-
neys and medical experts. Zeigler, responsible for reim-
bursing the government for the benefits, appealed to the
Benefits Review Board, which affirmed the ALJ decision
and denied Zeigler’s motion for reconsideration.
II. ANALYSIS
A. The Award of Black Lung Benefits
Zeigler appeals from a decision of the Benefits Review
Board, but we actually review the decision of the ALJ,
Nos. 01-3211 & 01-3998 3
asking whether his decision is supported by substantial
evidence, in accord with the law, and is rational. Amax Coal
Co. v. Director, Office of Workers’ Comp. Programs, 312
F.3d 882, 887 (7th Cir. 2002); Zeigler Coal Co. v. Kelley and
Office of Workers’ Comp. Programs, 112 F.3d 839, 841 (7th
Cir. 1997); Peabody Coal Co. v. Helms, 859 F.2d 486, 489
(7th Cir. 1988). We affirm the findings of the ALJ if they
are supported by relevant evidence that a “rational mind
might accept as adequate to support a decision.” Amax Coal
Co. v. Beasley, 957 F.2d 324, 327 (7th Cir. 1992); see also
Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1392 (7th Cir.
1994). The ALJ must consider all relevant medical evidence,
refrain from substituting his layman’s expertise for that
of qualified experts, and, absent evidence to the contrary
or a legal basis, must not disregard the opinions of qualified
experts. See Kelley, 112 F.3d at 841; Vigna, 22 F.3d at 1392;
Witherell v. Director, Office of Workers’ Comp. Programs,
U.S. Dept. of Labor, 812 F.2d 376, 382 (7th Cir. 1987). The
ALJ makes factual determinations; we do not reweigh
the evidence or make credibility determinations, and we
reserve only questions of law for de novo review. See Kelley,
112 F.3d at 841; Vigna, 22 F.3d at 1392; Summers v.
Freeman United Coal Mining Co., 14 F.3d 1220, 1223 (7th
Cir. 1994); Keeling v. Peabody Coal Co., 984 F.2d 857, 862
(7th Cir. 1993).
The Black Lung Benefits Act provides benefits to coal
miners who are totally disabled by pneumoconiosis and to
surviving dependents of miners who died as a result of
pneumoconiosis. See 30 U.S.C. § 910; Kelley, 112 F.3d
at 842. Miners may rely on statutory and regulatory pre-
sumptions to establish disability due to pneumoconiosis.
Id.; Freeman United Coal Mining Co. v. Foster, 30 F.3d
834, 836 (7th Cir. 1994). In Hawker’s case, the ALJ found
that Hawker had pneumoconiosis due to x-ray, biopsy, and
physician opinion evidence, see 20 C.F.R. § 718.202(a)(1)-(2),
(4), and that he was entitled to an irrebuttable presump-
4 Nos. 01-3211 & 01-3998
tion that he had pneumoconiosis due to x-ray and biopsy
evidence of complicated pneumoconiosis, an aggravated
form of pneumoconiosis. See 20 C.F.R. §§ 718.202(a)(3);
718.304. Zeigler challenges the invocation of the irre-
buttable presumption, arguing that the ALJ failed to
consider all relevant evidence and failed to provide the
reasons and bases for his finding of complicated pneumoco-
niosis.
Complicated pneumoconiosis may be established by (1)
chest x-rays that yield one or more large opacities, defined
as greater than one centimeter in diameter, and classified
as Category A, B, or C according to the ILO-U/C classifica-
tion system; (2) biopsy or autopsy findings of massive
lesions in the lungs; or (3) other means that could reason-
ably be expected to yield the results described in the prior
two methods. 20 C.F.R. § 718.304. In the present case, the
ALJ determined that Hawker suffered from complicated
pneumoconiosis based on the x-ray readings of four physi-
cians dually-qualified as B-readers1 and Board Certified
Radiologists (BCRs), and one physician qualified only as a
B-reader. They all found the large opacities necessary to
find complicated pneumoconiosis, with one of the BCR/B-
readers finding large opacities from three separate read-
ings. In addition, contrary to Zeigler’s claim that the ALJ
did not consider all relevant evidence, the ALJ specifically
indicated that he also relied on the readings of two dually-
qualified BCR/B-readers and two B-readers who failed to
observe the presence of large opacities, one of them failing
to do so despite five separate readings.
Zeigler argues that the ALJ “did not explain why he
rejected [one doctor’s] opinion that the ability to read
multiple films enabled him to render a more accurate
assessment than the readers who interpreted only one
1
“B-readers” are a specially-skilled subset of x-ray readers.
Nos. 01-3211 & 01-3998 5
or two films,” and did not provide a “rationale for crediting
[another doctor’s] opinion on the biopsy or for discredit-
ing . . . contrary views.” While the ALJ could have gone into
greater detail in explaining why he favored one doctor’s
finding over another, that does not mean the ALJ did not
in fact weigh all relevant evidence to find complicated
pneumoconiosis. Zeigler further undermines its argument,
however, when it quotes from the ALJ’s finding, which
explicitly stated that all relevant evidence was weighed
and explained why greater weight was given to some
opinions over others (Zeigler claims that this is a “simple
declar[ation]”).
Weighing together the biopsy, x-ray, and other
medical evidence, . . . the existence of complicated
pneumoconiosis is established. . . . Although I find
[four of the doctors who did not find pneumoconio-
sis] to be highly qualified, Board certified physi-
cians, their opinions are not supported by the x-ray
interpretations of the most qualified readers. I am
persuaded by the large number of dually qualified
readers who found large opacities and by the [one
doctor’s] opinion from the biopsy slides that Mr.
Hawker has progressive, massive fibrosis. See 20
C.F.R. § 304(b). I note that the majority of the most
highly qualified readers found evidence of compli-
cated pneumoconiosis and that this finding is
supported by the biopsy evidence of . . . a Board
Certified pathologist. Additionally, I note that [two
doctors] found CT evidence of large opacities.
Accordingly, I find that complicated pneumoconiosis
is established and that pneumoconiosis may be
presumed pursuant to 718.304.
(Emphasis added.)
Zeigler asserts that the ALJ provided no rationale for
crediting the positive readings over the negative ones, and
6 Nos. 01-3211 & 01-3998
that the only rationale for the ALJ’s credibility finding
is his purported “nose counting” of the number of wit-
nesses. Sahara Coal Co. v. Fitts, 39 F.3d 781, 782 (7th Cir.
1994). However, as in Kelley, the ALJ in the present case
did not mechanically count votes, but rather outlined
and considered the conclusions of all reports and the
qualifications of all readers before making his determina-
tion. In addition, the ALJ indicated that he gave greater
weight to the opinions of “dually qualified” physicians, those
of “the most qualified” physicians, and that of a “Board
Certified pathologist.” Furthermore, the ALJ properly cited
Board precedent for the proposition that he may assign
heightened weight to the interpretations by physicians
with superior radiological skills. See Kelley, 112 F.3d at
842-43.
We find that the ALJ properly weighed all relevant
medical evidence, and refrained from substituting his
layman’s expertise for that of qualified experts, in finding
that Hawker suffered from complicated pneumoconiosis
and was therefore entitled to an irrebuttable presumption
of pneumoconiosis. Because his findings are rational, sup-
ported by substantial evidence, and follow the law, we
affirm his finding that Hawker was entitled to black lung
benefits and affirm the judgment of the Benefits Review
Board to that effect.
B. The Award of Medical Expert Fees and Attorneys’ Fees
Zeigler objects to the ALJ’s determination, and the
Board’s affirmation, that Hawker is entitled to an award
of fees for the work of his medical experts and attorneys.
Zeigler argues that there is no statutory authority for
the ALJ and Board to award Hawker fees for the work
of his medical experts and that the Board improperly
awarded him his attorneys’ fees. We disagree.
Nos. 01-3211 & 01-3998 7
1. The award of medical expert fees.
Each party in a lawsuit ordinarily bears the burden of
its own attorneys’ fees unless there is express statutory
authorization to the contrary. Buckhannon Bd. & Care
Home, Inc. v. W.V. Dep’t of Health & Human Servs., 532
U.S. 598, 602 (2001) (citing Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247 (1975)); Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983). Section 28 of the
Longshoremen’s Act provides the authority for fee and
cost-shifting in black lung cases. 30 U.S.C. § 932(a). Section
28(d) of the Longshoremen’s Act provides:
In cases where an attorney’s fee is awarded against
an employer or carrier there may be further as-
sessed against such employer or carrier as costs,
fees and mileage for necessary witnesses attending
the hearing at the instance of claimant. Both the
necessity for the witness and the reasonableness of
the fees of expert witnesses must be approved by
the hearing officer, the Board, or the court, as the
case may be. The amounts awarded against an
employer or carrier as attorney’s fees, costs, fees
and mileage for witnesses shall not in any respect
affect or diminish the compensation payable under
this chapter.
33 U.S.C. § 928(d). Zeigler argues that section 28(d) does
not provide statutory authority to shift the cost of fees
charged by Hawker’s medical experts. It relies on W.V.
Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991), to support
is position, but Casey is inapposite. Casey dealt with the
recovery of expert fees under the former 42 U.S.C. § 1988,
the text of which only provided for the recovery of attor-
neys’ fees.2 That is not the case here; the text of section
2
Congress legislatively overruled Casey by amending § 1988
to provide that a court, in its discretion, may include expert
(continued...)
8 Nos. 01-3211 & 01-3998
28(d) of the Longshoremen’s Act addresses “the reasonable-
ness of the fees of the expert witness” within the context
of assessing “as costs, fees and mileage for necessary wit-
nesses” to an employer against whom attorneys’ fees also
were assessed. Indeed, the Supreme Court in Casey cited
section 28(d) as one of the statutes that “explicitly shift[s]
attorney’s fees and expert witness fees.” 499 U.S. at 92
and n.4 (emphasis in original).
Zeigler next posits that the fees of a medical expert
may not be shifted when that expert does not formally
attend the hearing but instead submits medical reports
that are admitted into evidence before the ALJ. According
to Zeigler, the plain language of section 28(d) limits fees
for witnesses to “necessary witnesses attending the hear-
ing at the instance of the claimant.” (Emphasis added.)
The Director asserts that expert fees are recoverable
whether or not the expert actually appears at a hearing.3
2
(...continued)
fees as part of the attorneys’ fee award. See Pub. L. 102-66,
§ 113(a)(2), codified at 42 U.S.C. § 1988.
3
The Benefits Review Board has a long history of awarding
claimants the fees for their expert medical reports when the
physicians do not appear at the oral hearing. See, e.g., Branham
v. E. Assoc. Coal Corp., 19 Black Lung Rep. 1, OWCP No. 236-52-
5867, BRB No. 91-2179 BLA, 1994 DOLBRB LEXIS 639, at *4
(Ben. Rev. Bd. 1994) (rejecting a Casey argument that an em-
ployer could not be liable for costs of a deposition witness who did
not appear and testify at a hearing, and stating that “the Board
has previously interpreted this statutory language and held
that an expert need not testify at the administrative hearing in
order for claimant’s counsel to be reimbursed for the costs of
obtaining a physician’s opinion”) (citing Hardrick v. Campbell
Inds., Inc., 12 B.R.B.S. 265, 270 (1980); Vacchio v. Sun Shipbuild-
ing & Dry Dock Co., 16 B.R.B.S. 190, 195 (1984); Cahill v. Int’l
(continued...)
Nos. 01-3211 & 01-3998 9
We begin our analysis of Zeigler’s claim by looking at
the language of the statute. The primary rule of statutory
interpretation is that words used in statutes must be
given their ordinary and plain meaning. United States v.
Wilson, 159 F.3d 280, 291 (7th Cir. 1998). Zeigler argues
that the word “attend” means “to be present at.” However,
the word has alternative meanings that we find instructive.
For instance, Webster’s indicates that “attend” can also
mean “to be present,”“to take care of, minister to,” “to
serve,” and “to take care or charge.” See WEBSTER’S COL-
LEGE DICTIONARY 85 (2nd ed. 1997). Indeed, the term
“present” itself is not dispositively clear, as its definition
includes the terms “being . . . under consideration” and
“being before the mind.” Id. at 1029. Accordingly, we do
not find the word “attending” to be unambiguous, and
believe that in the context of these hearings it includes
the testimony and reports of expert witnesses that have
been presented to the ALJ and thus are “under consider-
ation” and “before the mind.”
We note that other terms in the statute perhaps appear
clear in isolation, but are similarly indefinite and am-
biguous in the context of the statute and regulations. See
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)
(“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.”); Boim v. Quranic Literacy Inst. and Holy Land
Found. For Relief & Dev., 291 F.3d 1000, 1009 (7th Cir.
2002). For example, the term “hearing” is not defined in the
statute or the regulations and is used with qualifying
3
(...continued)
Terminal Operating Co., Inc., 14 B.R.B.S. 483, 489 (1981); Pernell
v. Capitol Hill Masonry, 11 B.R.B.S. 532, 541 (1979)).
10 Nos. 01-3211 & 01-3998
language in the regulations,4 which indicates that there
are various types of hearings in black lung cases.5 Thus, we
cannot conclude that “hearing” used in this context neces-
sarily means an oral presentation of evidence at a set date
and time, as Zeigler contends. See United States Ex Rel
Stinson v. Prudential Ins., 944 F.2d 1149, 1155 (3d Cir.
1991) (In “civil contexts the term ‘hearing’ does not neces-
sarily take the form of a live, formal proceeding.”). The word
“witness” similarly is not defined in the statute or regula-
tions, and its various definitions lead us to conclude that
it does not mean solely “a person who gives oral testi-
mony at a hearing.”6 In addition, the statutes and regula-
tions provide that a witness may testify by means of a
written document. See, e.g., 33 U.S.C. § 924, incorporated
by 30 U.S.C. § 932(a) (the “testimony of any witness may be
taken by deposition or interrogatories”); Richardson v.
Perales, 402 U.S. 389, 406 (1971) (holding due process not
4
The regulation subpart governing hearings, 20 C.F.R. § 725Subpart F, uses the terms “hearing,” id. §§ 725.450 et seq.,
“full evidentiary hearing,” id. § 725.452(c), “oral hearing,” id.
§ 725.452(d), and “formal hearing,” id. § 725.454(a).
5
Indeed, Webster’s indicates “hearing” can mean an “opportunity
to be heard” or “a session in which testimony and arguments
are presented.” WEBSTER’S COLLEGE DICTIONARY 599 (2nd ed.
1997). Black’s Law Dictionary echoes this by defining “hearing”
as “any setting in which an affected person presents arguments
to an agency decision-maker.” BLACK’S LAW DICTIONARY 725 (7th
ed. 1999).
6
The dictionary defines a witness as including “one who is able
to attest as to what took place,” “a person who gives testimony,”
“a person or thing serving as evidence,” or “testimony or evidence.”
WEBSTER’S COLLEGE DICTIONARY 1476-77 (2nd ed. 1997) (empha-
sis added). Black’s defines witness as “one who sees, knows, or
vouches for something,” and “one who gives testimony under
oath or affirmation (1) in person, (2) by oral or written deposition,
or (3) by affidavit.” BLACK’S LAW DICTIONARY 1596 (7th ed. 1999).
Nos. 01-3211 & 01-3998 11
violated by introduction of an ex parte hearsay medical
report); 20 C.F.R. § 725.458 (“The testimony of any wit-
ness . . . may be taken by deposition or interrogatory. . . .”).7
Indeed, the Longshore Men’s Act incorporates the hear-
ing provisions of the Administrative Procedures Act
(APA), 33 U.S.C. § 919(d), which allow for evidence to be
submitted on the record without a formal hearing. 5 U.S.C.
§§ 554(d), 556(d).
Reading this statute in context of the usual practice
under the BLBA, see Krzalic v. Republic Title Co., 314 F.3d
875, 879-80 (7th Cir. 2002), we give deference to the direc-
tor’s longstanding and reasonable interpretation of the
statute.8 Barnhart v. Walton, 535 U.S. 212, 122 S. Ct. 1265,
1270 (2002); North Haven Bd. of Ed. v. Bell, 456 U.S. 512,
522 n.12; cf. Heinz v. Cent. Laborers’ Pension Fund, 303
F.3d 802, 812 n.17 (7th Cir. 2002). In most black lung
cases, the parties present evidence in the form of medical
reports and other written testimony; seldom do doctors
and medical experts appear at an oral hearing to present
evidence. Indeed, ALJs typically schedule numerous “hear-
ings” on the same day, allotting no more than an hour
or two for the introduction of evidence in the form of
narrative reports and deposition testimony. If oral testi-
mony of all medical experts were required in order for a
7
Testimony also is not defined in the statute or regulations. The
dictionary defines “testimony” as “evidence in support of a fact
or statement,” WEBSTER’S COLLEGE DICTIONARY 1330 (2nd ed.
1997), and Black’s defines it as “[e]vidence that a competent
witness under oath or affirmation gives at trial or in an affidavit
or deposition.” BLACK’S LAW DICTIONARY 1485 (7th ed. 1999).
“Expert testimony” is also termed “expert evidence,” which is
defined as “[e]vidence about a scientific, technical, or professional
issue given by a person qualified to testify because of familiarity
with the subject or special training in the field.” Id. at 577-78.
8
See supra note 3 and accompanying text.
12 Nos. 01-3211 & 01-3998
successful claimaint to recover their fees, hearings could
take more than a day and would be more expensive (with
the additional expense also shifting to the employer),
medical experts would be unwilling to provide the neces-
sary medical reports because of the time out of their
practice that would accompany appearing at such hear-
ings (the dates of which typically change), and the ad-
ministration of the black lung program would be unduly
burdened. See Republic Steel Corp. v. Leonard, 635 F.2d
206, 210 (3d Cir. 1980) (noting the “undesirable burden
that would be placed on both the administration of the
black lung program and on the energy of the nation’s
physicians if black lung medical examiners were required
to attend each hearing”).
We therefore reject Zeigler’s argument that Hawker can
only recover the fees of his medical experts if they ap-
pear at the ALJ hearing, and hold that such fees may be
recovered when their medical reports are submitted as
evidence before the ALJ.
2. The award of attorneys’ fees.
In reviewing Zeigler’s specific challenges to the attor-
neys’ fees award, we give great deference to the views and
conclusions of the ALJ. Ustrak v. Fairman, 851 F.2d
983, 987 (7th Cir. 1988); see also Tenner v. Zurek, 168 F.3d
328, 329 (7th Cir. 1998) (citing LaMotte v. Roundy’s, Inc., 27
F.3d 314, 315 (7th Cir. 1994)). We review the question of
reasonableness of time spent by a lawyer on a particular
task in the course of litigation under a highly deferential
version of the “abuse of discretion” standard. See Ustrak,
851 F.2d at 987. “Not only is the [ALJ] in a much better
position than the appellate court to make this determina-
tion, but neither the stakes nor the interest in uniform
determination are so great as to justify microscopic appel-
late scrutiny.” Id.Nos. 01-3211 & 01-3998 13
Contrary to Zeigler’s contention, Hawker’s counsel
provided complete, itemized statements requesting fees
for services in representing Hawker in the initial appeal
and in defense of the fee petition. These statements de-
scribed the extent and character of the necessary work
done before the Board and indicated the professional
status and the customary hourly billing rate for the attor-
neys who performed the work. The ALJ reviewed the
hourly rates and concluded they were reasonable after
considering the quality of the legal representation pro-
vided, the qualifications of Hawker’s counsel, and the
complexity of the legal issues involved in the case. See 20
C.F.R. § 725.366(b). Zeigler offered no evidence to support
its contention that the rates charged are improper or
unreasonably high.9 Therefore, we do not find an abuse
of discretion in the ALJ’s determination that the attor-
neys’ fees requested were reasonable.
Zeigler next argues that the ALJ improperly awarded
attorneys’ fees for the attorneys’ performance of clerical
tasks and office overhead (postage and photocopying). We
disagree. The ALJ specifically reviewed the entries that
Zeigler claims constituted “clerical tasks” and found that
counsel’s work was more than just clerical; counsel con-
ducted telephone conferences with doctors and reviewed
doctors’ reports. As for the overhead costs, the ALJ ac-
cepted as reasonable Hawker’s assertion that the postage
9
Zeigler argues that there is no support for awarding fees in this
case because one of Hawker’s counsel conceded that he charged
a higher rate for black lung cases. However, counsel indicated
that he charged this higher rate because of his experience with
black lung cases. The ALJ found this reasonable, and we do not
find this conclusion to be an abuse of discretion. Furthermore,
even if the ALJ had found that such a rate was unreasonable,
that would hardly be “dispositive in demonstrating the absence
of any support for the award of fees,” as Zeigler contends.
14 Nos. 01-3211 & 01-3998
and photocopying costs were necessary to successfully
prosecute this case as the physicians needed a complete
copy of the record to provide a written report on Hawker’s
behalf. Because the ALJ is in a much better position
than the appellate court to make this determination, we
do not find these conclusions to be an abuse of discretion.
Finally, Zeigler argues that the ALJ improperly awarded
fees to the attorneys for their work defending the their
fee application and responding to interrogatories. We dis-
agree and believe that § 928(d) actions should be treated
similar to § 1988 actions, so that fees awarded under the
statute are not diminished by the cost of bringing a legiti-
mate petition for attorney’s fees. See Kerns v. Consolida-
tion Coal Co., 247 F.3d 133, 134 (4th Cir. 2001) (holding
that § 928(a) actions should be treated similar to § 1988
actions); cf. Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.
1988) (approving fee-shifting for defending fee applica-
tions in the context of civil rights suits).
III. CONCLUSION
For the reasons stated above, the Board’s orders are
ENFORCED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-18-03