Eastern Assoc Coal v. Walker

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL
CORPORATION,
Petitioner,

v.
No. 95-2455
OTTO WALKER; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-2626-BLA, 93-2082-BLA)

Argued: May 10, 1996

Decided: August 12, 1996

Before WILKINSON, Chief Judge, and HALL and ERVIN,
Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

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COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washing-
ton, D.C., for Petitioner. George P. Surmaitis, CRANDALL, PYLES
& HAVILAND, Charleston, West Virginia, for Respondents. ON
BRIEF: Laura Metcoff Klaus, ARTER & HADDEN, Washington,
D.C., for Petitioner. Grant Crandall, CRANDALL, PYLES & HAVI-
LAND, Charleston, West Virginia, for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Eastern Associated Coal Corporation petitions for review of final
orders of the Benefits Review Board affirming the Administrative
Law Judge's Decision and Order awarding black lung disability bene-
fits to Otto Walker, and affirming the ALJ's Supplemental Decision
and Order granting attorney fees to Walker's legal counsel. We affirm
the award of benefits, but we vacate the fee award and remand to the
Department of Labor for the ALJ to further consider the appropriate
compensation.

I.

A.

Walker filed this claim for benefits in 1983. In 1987, the matter
came on for hearing before an ALJ, who denied the claim notwith-
standing the opinion of Dr. Donald L. Rasmussen that, based on the
results of a "single breath carbon monoxide diffusing capacity"
(DLCO) test that he administered, Walker was afflicted with a moder-
ate pulmonary impairment that precluded him from returning to his
usual coal mine work.1
_________________________________________________________________
1 It is undisputed that Walker has pneumoconiosis, and that the disease
arose out of his coal mine employment. See 20 C.F.R. §§ 718.202-03
(1996).

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The ALJ declined to credit Dr. Rasmussen's report on the ground
that the DLCO test was not specifically listed among the various
criteria of 20 C.F.R. § 718.204(c), under which a miner's total disabil-
ity may be established. The ALJ did not find (and Eastern did not
contend) that Dr. Rasmussen had improperly administered the DLCO
test to Walker, but instead concluded merely that the results of such
a test are not relevant to evaluating whether a miner is disabled. The
BRB affirmed.

On appeal, we vacated the denial of benefits. Walker v. Director,
OWCP, 927 F.2d 181 (4th Cir. 1991) (Walker I ). In Walker I, we held
that the criteria enumerated in § 718.204(c) are not an exhaustive list,
and we noted Eastern's admission in its appellate brief that a valid
DLCO test could, by itself, "carry the day for any [claimant]," as long
as it was "properly reported and validated by a qualified physician."
Id. at 184 (internal quotation marks and footnote omitted). We
remanded the case for the Director to reconsider the denial of benefits
in light of our admonition that the results of the DLCO test be
weighed along with "all other relevant evidence." Id. at 185.

On remand, the parties were permitted to supplement the record
with the submissions of Drs. Rasmussen and Ben V. Branscomb, who
hold opposing views as to the utility of the DLCO test in accurately
measuring pulmonary function.2 The case was then assigned to a dif-
ferent ALJ, who, upon considering all of the evidence and argument
theretofore submitted by the parties, entered a Decision and Order
awarding benefits. The BRB affirmed, holding that the ALJ's findings
and conclusions were rational, supported by substantial evidence, and
consistent with the applicable law. Eastern now appeals.

B.

Eastern's argument on appeal vacillates effortlessly back and forth
between questioning the scientific validity of DLCO tests in general,
_________________________________________________________________
2 Though Dr. Rasmussen stated that the DLCO test "certainly should be
considered as valid evidence for assessment of impairment in coal min-
ers," Dr. Branscomb opined that "[t]he diffusing capacity test result, by
itself, is an extremely unreliable predictor for the presence of total dis-
ability."

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and challenging the reliability of the particular test administered to
Walker by Dr. Rasmussen.

The concepts of validity and reliability are ingrained within the sci-
entific method. A test, measurement, or study is said to be scientifi-
cally "valid" to "the extent [that it] measures what it purports to
measure." See, e.g., Dorland's Illustrated Medical Dictionary 1791
(28th ed. 1994). Such a test or measurement is "reliable" to the extent
that it "gives the same results upon repeated sampling under identical
conditions." Id. at 1444. In other words, a test's reliability reflects the
accuracy of the raw data collected.

The validity of DLCO tests in general was, for the purposes of
black lung litigation in this circuit, conclusively established in Walker
I, wherein we held (and Eastern acknowledged) that such a test is
indeed capable of "measuring what it purports to measure," i.e., the
subject's pulmonary function. We noted only that the test results must
be "properly reported and validated," id. at 184, meaning simply that
the acts of recordation and attestation must comport with the gener-
ally accepted standards applicable to official medical reports. As we
stated in Walker I, Dr. Rasmussen's recitation of the DLCO test
results was properly reported and validated, and there can be no seri-
ous contention to the contrary. Indeed, the uncontradicted testimony
of Dr. Rasmussen reveals that "[t]he testing performed on Mr. Walker
corresponded to the methods prescribed by the American Thoracic
Society in 1978."

Moreover, we think that Dr. Rasmussen's adherence to the ATS
standards gives rise to a presumption that the DLCO test result
obtained here is scientifically reliable, i.e. , that Walker's pulmonary
efficiency is, in reality, only 59% of what would ordinarily be
expected in a disease-free subject. There is no evidence in the record,
including that outlining Dr. Branscomb's skeptical view of the utility
of DLCO tests in general, that would have permitted the ALJ to con-
clude that the presumption of the test's reliability in this particular
instance had been effectively rebutted.

C.

Our opinion in Walker I merely left open the possibility that, even
giving Dr. Rasmussen's opinion the consideration that it deserved,

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substantial evidence might nevertheless exist to support a denial of
benefits. On remand, the ALJ perceived his duties precisely:

[T]he Court's remand was unaccompanied by any mandate
as to what further action need be taken in the instant case.
. . . Nevertheless, it may be reasonably assumed that the
Court meant for an ALJ to reconsider the case on the narrow
issues delineated in the last sentence of its opinion, i.e., a
weighing of the diffusing capacity test with the pulmonary
function and blood gas studies and "all other relevant evi-
dence[.]"

(emphasis deleted). As a result of considering the evidence anew, the
ALJ concluded that Dr. Rasmussen's opinion, based on the single
DLCO test, "carried the day" for Walker. The ALJ found that the
test's revelation of what Dr. Rasmussen interpreted as a moderate
impairment was consistent with the results of a pulmonary function
study performed by Dr. John M. Daniel, who had been retained by
Eastern to examine Walker in 1987. Blood gas studies conducted by
Drs. Rasmussen and Daniel were inconclusive as a whole, inasmuch
as Walker was unable to exert sufficient effort during the testing to
produce a meaningful result.

The ALJ recited Dr. Rasmussen's belief that Walker's pulmonary
impairment was due to his pneumoconiosis, and that it prevented him
from returning to his usual coal mine work. As to this latter conclu-
sion, the only evidence directly to the contrary was provided by Dr.
Daniel, whose opinion as to Walker's disability was deemed to be
without foundation in Walker I. Dr. Branscomb, as the ALJ noted,
declined to offer an opinion on the matter.3

Based on the above, we believe that the ALJ's decision to award
benefits is supported by substantial evidence and consistent with the
law. We will not, therefore, disturb it.
_________________________________________________________________
3 Dr. Branscomb believed that the evidence was insufficient to allow
him to form an opinion. He attributed this belief, at least in significant
part, to his perception that the DLCO test is often an unreliable indicator
of pulmonary function. See note 2, supra .

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II.

Pursuant to the award of benefits, Walker's lawyer, Grant Crandall,
submitted an application for attorney fees to the ALJ. See 20 C.F.R.
§§ 725.366, -.367 (1996). The application requested recompense from
Eastern at the rate of $200/hour for work performed by Mr. Crandall,
and $150/hour for the services of his associate. The ALJ issued a Sup-
plemental Decision and Order approving the application. The BRB
affirmed, and Eastern appeals, asserting that the hourly rates are
excessive.

Neither the ALJ nor the BRB mentioned the Supreme Court's deci-
sion in City of Burlington v. Dague, 505 U.S. 557 (1992). In Dague,
the Court set forth guidelines for determining a"reasonable" hourly
attorney fee under the various federal fee-shifting statutes.4 According
to the Court, the inquiry begins by calculating the"lodestar" figure,
that is, the lawyer's usual hourly rate multiplied by the number of
hours spent on a case. See id. at 562 ("We have established a `strong
presumption' that the lodestar represents the `reasonable' fee. . . .")
(citation omitted).

A fee in excess of the lodestar may be appropriate in a particular
case, but only if the fee applicant can show that"such an adjustment
is necessary to the determination of a reasonable fee." Id. (citation
omitted). In no case may the lodestar figure be adjusted upward to
reflect the risk that, in the event that the claimant or plaintiff does not
prevail, the unsuccessful lawyer will recover nothing. Id. at 567.5
_________________________________________________________________

4 See, e.g., 20 C.F.R.§ 725.366(b) (1996) ("Any fee approved under
paragraph (a) of this section shall be reasonably commensurate with the
necessary work done. . . .").

5 The Court has previously announced that factors such as the novelty
and complexity of the issues, counsel's skill and experience, and the
quality of the representation are presumed to be reflected in the lodestar
amount, and would therefore result in impermissible double-counting if
used as justification for increasing the basic fee award. See Pennsylvania
v. Delaware Valley Citizens' Council, 478 U.S. 546, 564-65 (1986);
Blum v. Stenson, 465 U.S. 886, 898-900 (1984).

6
We are unable to review the ALJ's fee award in this case, for there
is no evidence of Mr. Crandall's usual hourly rate, or that of his asso-
ciates. The record thus does not contain any indication of the appro-
priate lodestar figure, which the Supreme Court has deemed the
necessary starting point for all analysis and review. The fee award
must therefore be vacated, and the matter remanded for reconsidera-
tion.

III.

The award of benefits is affirmed, but the fee award is vacated and
remanded to the Director for reconsideration in light of City of Bur-
lington v. Dague.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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