BRB No. 99-1151 BLA
JOHN R. VINSKOFSKI )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/08/2000
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Ainsworth H.
Brown, Administrative Law Judge, United States Department of Labor.
Paul K. Paterson (Mascelli & Paterson), Scranton, Pennsylvania, for
claimant.
Timothy S. Williams (Henry L. Solano, Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for
Administrative Litigation and Legal Advice), Washington D.C., for the
Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant[1] appeals the Decision and Order -
Denying Benefits (98-BLA-1097) of Administrative Law Judge Ainsworth H. Brown on
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. (the
Act). Adjudicating this claim pursuant to 20 C.F.R. Part 718, the administrative
law judge credited the miner with more than ten but less than sixteen years of
qualifying coal mine employment. The administrative law judge found that the
evidence of record taken as a whole established the existence of pneumoconiosis
arising out of coal mine employment pursuant to 20 C.F.R. §718.202(a), as
conceded by the Director, Office of Workers' Compensation Programs (the Director),
but found that claimant failed to establish total respiratory disability pursuant
to Section 718.204(c)(1)-(4). Accordingly, the administrative law judge denied
benefits.
On appeal, claimant argues that the administrative law judge erred in failing
to find total respiratory disability at Section 718.204(c)(4). The Director
responds, urging affirmance of the denial.[2]
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with the applicable law, they are
binding upon this Board and may not be disturbed. 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).
With respect to Section 718.204(c)(4), claimant argues that the administrative
law judge erroneously credited the opinion of Dr. Levinson, who rendered two
contradictory opinions, because Dr. Levinson failed to conclusively state which of
his two reports he considered to be valid.[3]
Claimant asserts that the administrative law judge should have credited the opinion
of Dr. Cali, who opined that pneumoconiosis precluded claimant from performing his
usual coal mine employment. We disagree. After considering all of the medical
opinions of Drs. Levinson and Cali, the administrative law judge, within a
permissible exercise of discretion, found that Dr. Levinson's March 31, 1999 letter
in which he explained the reasons for his change in opinion concerning claimant's
disability to be "plausible."[4] See Trumbo
v. Reading Anthracite Co., 17 BLR 1-85, 1-88 (1993); King v. Consolidation
Coal Co., 8 BLR 1-262 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139, 1-141 (1985); Decision and Order at 5; Director's Exhibit 26. The administrative law
judge rationally discounted Dr. Cali's opinion because Dr. Cali failed to account
for the improvement in claimant's blood gas study values as noted by Dr. Levinson
and to provide an explanation for his total disability opinion aside from a
recommendation that claimant avoid further coal dust exposure.[5] See Lucostic v. U.S. Steel Corp.,
8 BLR 1-46 (1985); Carpeta v. Mathies Coal Co., 7 BLR 1-145, 1-147 n.2
(1984); see also Beatty v. Danri Corp. and Triangle Enterprises, 16 BLR 1-11, 1-14 (1991); Hopton v. U. S. Steel Corp., 7 BLR 1-12, 1-14 (1984);
Decision and Order at 5; Claimant's Exhibits 2, 7. Inasmuch as Dr. Cali discussed
claimant's non-qualifying pulmonary function and blood gas studies, but failed to
provide a rationale for his opinion that claimant's pulmonary condition precludes
him from performing coal mine work, we affirm the administrative law judge's
determination that Dr. Cali's June 8, 1999 statement failed to undermine Dr.
Levinson's March 31, 1999 letter. See Fields v. Island Creek Coal
Co., 10 BLR 1-19 (1987); Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986);
Decision and Order at 5.
Inasmuch as claimant has not otherwise challenged the administrative law
judge's total disability finding pursuant to Section 718.204(c)(4), we affirm the
administrative law judge's determination that claimant failed to satisfy his burden
of demonstrating total respiratory disability under Section 718.204(c), a requisite
element of entitlement pursuant to 20 C.F.R. Part 718. See Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986) (en banc).
Accordingly, the Decision and Order - Denying Benefits of the administrative
law judge is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant, John R. Vinskofski, the miner, filed his application
for benefits on November 14, 1997. Director's Exhibit 1.
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2) We affirm the administrative law judge's findings regarding
length of coal mine employment and pursuant to Sections 718.202(a) and
718.204(c)(1)-(3) inasmuch as these determinations are unchallenged on appeal.
See Coen v. Director, OWCP, 7 BLR 1-30 (1984); Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983); Decision and Order at 3-5.
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3) Dr. Levinson conducted two pulmonary evaluations of claimant.
Pursuant to the first examination on February 3, 1998, he opined that claimant's
pulmonary impairment is mild "and would in and of itself preclude him from
performing work that would be comparable to his prior coal mine employment."
Director's Exhibit 6. However, on January 22, 1999, he opined that claimant's
"pulmonary impairment in and of itself would not appear to be sufficient to disable
him from work comparable to his prior coal mine employment." Director's Exhibit
19.
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4) On March 31, 1999, Dr. Levinson compared the pulmonary function
and blood gas study values from both examinations and explained that claimant "could
produce higher ventilatory study results with a better effort" than those obtained on January 22, 1999 and that the resting
blood gas study obtained on this same date "was also substantially higher" than that obtained on February 3, 1998.
Director's Exhibit 26. He explained, therefore, "That would leave me to believe that he does not have any hypoxemia of
a significant degree that would be caused by prior coal mine employment." Ibid.
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5) On March 5, 1999, Dr. Cali concluded that a "combination of
reactive airways disease or asthma, simple coal workers' pneumoconiosis based on
chest x-ray and history, and obesity would preclude him form [sic] doing mine
work." Claimant's Exhibit 2. In a supplemental letter dated June 8, 1999, Dr.
Cali opined that claimant "would not be able to perform coal mine work because of
his pulmonary conditions and because of the level of activity that it would
require." Claimant's Exhibit 7. He summarized this opinion by stating "that the
original report provides significant detail and objective evidence including the
diagnosis and requires no additional information." Ibid.
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NOTE: This is an UNPUBLISHED BLA Document.
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