BRB No. 95-1111 BLA
DOUGLAS W. FLYNN ) )
Claimant-Respondent )
)
v. )
)
GRUNDY MINING COMPANY ) )
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED: 07/27/1995
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
) DECISION and ORDER
Party-in-Interest ) On RECONSIDERATION
Appeal of the Decision and Order on Remand of Fletcher E. Campbell, Jr., Administrative Law
Judge, United States Department of Labor.
Ronald E. Gilbertson (Kilcullen, Wilson and Kilcullen, Chartered), Washington,
D.C.,
for employer.
Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer has filed a Motion for Reconsideration requesting en banc review of the
Board's
Decision and Order in Flynn v. Grundy Mining Co. [Flynn IV], BRB No. 95-1111 BLA
(July 27,
1995)(unpub.), wherein the Board affirmed the administrative law judge's award of benefits on
a duplicate
claim.
In discussing the instant case the Board, in Flynn IV,[1]
first noted that in order to establish a material change in conditions under Ross,
claimant must now
prove, through the submission of new evidence, that he is totally disabled and/or that his
disability is due to
pneumoconiosis. See Flynn IV, supra. In applying this standard the Board held that
inasmuch as the
administrative law judge has considered all of the new evidence, favorable and unfavorable, and
permissibly
determined that the 1984 medical opinion of Dr. Fritzhand is sufficient to establish total
disability at 20
C.F.R. §718.204(c), claimant has established a material change in conditions as a matter
of law.
Id.
In its Motion for Reconsideration, employer argues that the Board improperly made a de
novo
finding that the evidence is sufficient to establish a material change in conditions under the
standard
enunciated by the United States Court of Appeals for the Sixth Circuit in Sharondale Corp.
v. Ross,
42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994). Employer asserts that the case must be remanded for
the
administrative law judge to explain whether he merely disagreed with the previous
characterization of Dr.
Fritzhand's opinion, or whether he believes there is some rational basis to conclude that there
is a
qualitative difference between Dr. Fritzhand's 1980 and 1984 opinions.
Explicitly rejecting the Board's standard in Spese v. Peabody Coal Co., 11 BLR 1-174
(1988), dismissed with prejudice, No. 88-3309 (7th Cir., Feb. 6, 1989)(unpub.),[2] the Sixth Circuit, in Ross, held that in order to
determine
whether a material change in conditions is established, an administrative law judge must
consider all of the
new evidence, favorable and unfavorable, and determine whether the miner has proven at least
one of the
elements of entitlement previously adjudicated against him. Ross, supra. The Sixth
Circuit noted
that "if the miner establishes the existence of that element, he has demonstrated, as a matter
of law, a
material change." Ross, 42 F.3d at 997, 998, 19 BLR at 2-19. The Court further
acknowledged that
the administrative law judge in Ross did not properly analyze the facts, since he never
discussed
how the later evidence differed qualitatively from the evidence previously submitted which had
been
deemed insufficient to establish the requisite element of entitlement with regard to the first
claim. The
Court, therefore, noted that it was unable to discern on the record whether the administrative
law judge
merely disagreed with the previous characterization of the strength of the evidence or whether
Ross indeed
had shown the existence of a material change in his condition since the earlier denial.
Consequently, the
Sixth Circuit remanded Ross to the administrative law judge for further consideration
of this issue.
In the instant case, employer's interpretation of Ross is correct, in that the Sixth
Circuit
requires that a miner show that there has been a worsening in his physical condition in order
to have his
claim reconsidered on the merits more than one year after the prior final denial. Ross,
supra.
Consequently, we grant employer's Motion for Reconsideration. We hold that a determination
that the
miner's physical condition has worsened is a requisite part of the duplicate claims analysis
at 20 C.F.R.
§725.309(d) under Ross, and as such shall be applied to all cases arising within
the appellate
jurisdiction of the United States Court of Appeals for the Sixth Circuit. See Shupe
v. Director,
OWCP, 12 BLR 1-200 (1989)(en banc).
In his Decision and Order on Remand, the administrative law judge noted the existence of Dr.
Fritzhand's two medical opinions in his summary of the medical evidence, Decision and Order on
Remand
dated February 7, 1995, at 6, and explicitly stated in his discussion of the medical report
evidence at
Section 718.204, that Dr. Fritzhand's 1984 medical report is "the only report in which he
mentioned a
disability." Decision and Order on Remand dated February 7, 1995, at 8. It may be inferred from
this
statement,[3] that the administrative law judge did, in fact,
agree with
the previous Department of Labor characterization that Dr. Fritzhand's 1980 opinion is
insufficient to
establish a totally disabling respiratory impairment arising out of coal mine employment.
Thus, it is
conceivable that the administrative law judge permissibly concluded that claimant established
a material
change in conditions under the applicable standard in Ross. However, the evidence of
record
appears equally open to an interpretation that the administrative law judge merely disagreed
with the
previous characterization of the strength of Dr. Fritzhand's 1980 opinion, and as such,
believed only that the
district director was mistaken in issuing a denial of the initial claim. Given that more than
one year has
passed since the prior denial, claimant would not be entitled to benefits on this basis.
See 20 C.F.R.
§§725.309; 725.310.
As employer notes in its Motion for Reconsideration, Dr. Fritzhand appears to have drawn
the same
conclusion regarding claimant's physical condition in each of his two medical opinions.[4] In his July 26, 1980, medical report Dr. Fritzhand
specifically opined
that claimant had shortness of breath and could "ambulate on level ground no more than 200
feet." In his
subsequent report of June 16, 1984, Dr. Fritzhand opined that claimant could "ambulate on level
terrain no
more than 300 feet." Thus, as employer maintains, it may be reasonably construed that Dr.
Fritzhand
limited claimant more in 1980 than he did in 1984. The administrative law judge is therefore
initially required
to explain why Dr. Fritzhand's 1980 opinion either does or does not establish total disability.
In the event
that the administrative law judge finds that both of Dr. Fritzhand's opinions support a finding
of disability, he
must then articulate what distinguishes Dr. Fritzhand's finding of total disability in 1984,
such that it is now
sufficient to establish the requisite material change in conditions.[5]
Inasmuch as we are unable to discern from the record whether the administrative law judge
merely
disagreed with the previous characterization of the evidence or whether claimant has shown a
material
change in his condition since the earlier denial, we must vacate our holding that claimant has
established a
material change in conditions as a matter of law. This case is remanded to the administrative
law judge for
consideration of the relevant evidence on this issue under the standard enunciated in
Ross. See
Ross, supra. In light of the administrative law judge's prior determination that Dr.
Fritzhand's 1984
opinion establishes a totally disabling respiratory impairment, the administrative law judge,
on remand, must
explain whether he merely disagreed with the previous characterization of Dr. Fritzhand's 1980
medical
report or whether claimant has shown, through the submission of Dr. Fritzhand's 1984 medical
opinion, a
material change in his condition since the earlier denial. If the administrative law judge
determines that
claimant has established a material change in conditions, claimant is entitled to benefits
since employer has
not raised any contentions in its Motion for Reconsideration regarding our affirmance of the
administrative
law judge's finding of entitlement on the merits. Thus, that holding stands under the law of
the case
doctrine. See Bridges v. Director, OWCP, 6 BLR 1-988 (1984); Dean v. Marine
Terminals
Corp., 15 BRBS 394 (1984). If, however, the administrative law judge concludes that he
merely
disagreed with the prior denial of benefits, the instant claim must be denied. See 20
C.F.R
§725.309(d); Ross, supra.
Accordingly, we grant employer's Motion for Reconsideration, vacate our prior holding that
claimant
has established a material change in conditions as a matter of law,[6]
and remand this case for further consideration of the duplicate claims issue consistent with
this opinion. In
all other regards, our prior decision in Flynn IV is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) 1The Board's decision in Flynn IV contains a complete and
thorough
discussion of the protracted procedural history of the instant case. Flynn v. Grundy Mining
Co.
[Flynn IV], BRB No. 95-1111 BLA (July 27, 1995)(unpub.). Consequently, it is
unnecessary for the
Board to presently reiterate that history in order to render its disposition of employer's
Motion for
Reconsideration.
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2) 2Under Spese v. Peabody Coal Co., 11 BLR 1-174 (1988),
dismissed
with prejudice, No. 88-3309 (7th Cir., Feb. 6, 1989)(unpub.), the administrative law judge
is required to
examine the newly submitted evidence to determine whether there is a reasonable possibility
that it would
change the prior administrative result. The Sixth Circuit rejected the Spese standard
because it
confuses the delineation in 20 C.F.R. §725.309(d), which limits requests for modification
of a decision
wrongly decided to be filed within one year, with requests based on a material change in
conditions.
Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994). Specifically, the
Court
concluded that the Spese standard is too broad, since it includes evidence never
presented but
available at the time of the initial hearing, which although relevant to a request for
modification, is not
relevant to establishing a material change in conditions and thus, should not be considered.
Id.
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3) 3This is particularly true given that the administrative law judge
relied exclusively
on Dr. Fritzhand's 1984 opinion in rendering his determinations regarding claimant's condition.
Moreover,
as the administrative law judge acknowledged, Dr. Fritzhand, in his 1984 opinion, diagnoses
pneumoconiosis for the first time.
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4) 4As acknowledged by the Board in Flynn v. Grundy Mining Co. [Flynn
III],
BRB No. 91-1348 BLA (Apr. 4, 1994)(unpub.), Administrative Law Judge V. M. McElroy found, in
his
Decision and Order on Remand, that the two opinions of Dr. Fritzhand were essentially the same.
Specifically, Judge McElroy commented that "Dr. Fritzhand made the same assessment in his
report dated
June 16, 1984," Decision and Order on Remand dated April 29, 1991, at 5, as he made in his prior
1980
medical opinion.
Back to Text
5) 5Additionally, it is unclear from the record whether the Department of
Labor
[DOL] ever considered Dr. Fritzhand's 1980 opinion in issuing the final denial of the prior
claim. In a letter to
claimant dated June 10, 1980, the district director informed claimant that the evidence is not
sufficient for
approval of his claim. In addition, the district director notified claimant that he would be
contacted "in the
near future" by Dr. Fritzhand for medical tests authorized by the DOL. While Dr. Fritzhand's
first
examination of claimant occurred prior to the issuance of the final denial in claimant's first
claim on June 15,
1981, the record does not specify what evidence was considered by the district director at that
time.
Moreover, in Flynn III the Board noted, in its discussion of employer's contention
regarding 20
C.F.R. §725.308, that the record does not indicate when claimant was initially made aware
of Dr.
Fritzhand's 1980 determination; this despite the fact that claimant was certainly aware of
DOL's final denial
issued June 15, 1981. Thus, even if the administrative law judge finds that Dr. Fritzhand's two
opinions
similarly support a finding of total disability, claimant nevertheless may have established
a material change
in conditions if it is determined that Dr. Fritzhand's 1980 medical opinion was not considered
by the district
director in the issuance of his denial of claimant's initial claim.
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6) 6Inasmuch as we grant the relief requested by employer in its Motion
for
Reconsideration, we deny employer's request for en banc review.
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NOTE: This is a PUBLISHED BLA Document. To Top of Document
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