BRB No. 00-0890 BLA
ROBERT L. TANNER
Claimant-Petitioner
v.
AMAX COAL COMPANY
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
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ISSUED:08/30/2001
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) DECISION AND ORDER
Appeal of the Decision and Order on Remand - Awarding Benefits of
Ellin M. O'Shea, Administrative Law Judge, United States Department of
Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for
claimant.
Mark Solomons (Greenberg Traurig LLP), Washington, D.C., for employer.
Dorothy L. Page (Howard M. Radzely, Acting 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 and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand - Awarding Benefits (97-BLA-0432) of Administrative Law Judge Ellin M. O'Shea 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).[1] This case is before the Board for the second
time. In the original Decision and Order, the administrative law judge
adjudicated the claim pursuant to 20 C.F.R. Part 718, based on claimant's
September 29, 1994 filing date. In weighing the medical evidence of record, the
administrative law judge found the evidence sufficient to establish the
existence of pneumoconiosis arising out of coal mine employment pursuant to 20
C.F.R. §§718.202(a)(4) and 718.203(b) (2000). In addition, the
administrative law judge found employer's concession of total respiratory
disability pursuant to 20 C.F.R. §718.204(c) (2000) supported by the
evidence of record. The administrative law judge further found the evidence
sufficient to establish that claimant's total respiratory disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b) (2000). Accordingly, the
administrative law judge awarded benefits, commencing September 1994.
Pursuant to employer's appeal, the Board vacated the administrative law
judge's Decision and Order awarding benefits and remanded the case to the
administrative law judge for further consideration. Tanner v. Amax Coal
Co., BRB No. 98-0456 BLA (Dec. 18, 1998)(unpub.). Initially, the Board
affirmed the administrative law judge's determination of the date of onset and
her findings pursuant to Sections 718.203(b) and 718.204(c) (2000), as
unchallenged on appeal. Tanner, slip op. at 2, n.2. The Board also
affirmed the administrative law judge's finding that the CT scan evidence of
record was inconclusive and, therefore, did not establish either the presence or
absence of pneumoconiosis. Tanner, slip op. at 2. Furthermore, the Board
affirmed the administrative law judge's finding that the opinions of Drs. Wiot
and Repsher were unpersuasive.[2] Id.
However, the Board vacated the administrative law judge's findings with respect
to the medical opinions of Drs. Castle, Dahhan, Renn, Selby and Tuteur,
remanding the case for the administrative law judge to reconsider these medical
opinions under Sections 718.202(a)(4) and 718.204(b) (2000), holding that the
administrative law judge did not provide adequate and rational bases for
discrediting these opinions. Tanner, slip op. at 3-4.
On remand, the administrative law judge again found that the medical
opinion evidence of record established the existence of pneumoconiosis pursuant
to Section 718.202(a)(4) (2000). In addition, the administrative law judge
found the medical evidence sufficient to establish that pneumoconiosis was a
necessary cause of claimant's total respiratory disability pursuant to Section
718.204(b) (2000). Accordingly, the administrative law judge again awarded
benefits on remand.
In challenging the administrative law judge's award of benefits in the
instant appeal, employer contends that the administrative law judge erred in
finding the medical opinion evidence sufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(4) (2000) and that claimant's
total respiratory disability was due to pneumoconiosis pursuant to Section
718.204(b) (2000). In response, claimant urges affirmance of the administrative
law judge's award of benefits, arguing that the administrative law judge
properly considered the medical evidence on remand and reasonably found the
evidence sufficient to establish entitlement to benefits. In its reply brief,
employer reiterates the arguments as set forth in its Petition for Review and
brief. Specifically, employer again contends that the administrative law judge
did not follow the Board's remand instructions and, therefore, the case must be
remanded. The Director, Office of Workers' Compensation Programs, has filed a
letter stating that he will not file a response brief in this appeal.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law. 33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965).
After consideration of the administrative law judge's Decision and Order,
the issues raised on appeal and the relevant evidence of record, we conclude
that the administrative law judge's Decision and Order is supported by
substantial evidence and there is no reversible error therein. Initially,
employer contends that the administrative law judge erred in failing to follow
the remand instructions of the Board in reconsidering the medical opinion
evidence pursuant to Section 718.202(a)(4). In particular, employer contends
that the administrative law judge again found the medical opinions of Drs. Selby
and Tuteur biased and, therefore, discredited them, which is contrary to the
Board's remand instructions. Employer also argues that the administrative law
judge again rejects the opinions of Drs. Renn, Dahhan and Castle for the same
reasons that were found insufficient by the Board in its 1998 Decision and
Order. We disagree.
Contrary to employer's contention, the administrative law judge did not
fail to apply the Board's remand instructions in her consideration of the
medical evidence. Rather, the administrative law judge noted the specifics of
the Board's holdings and reconsidered the evidence within the parameters of
those instructions. Decision and Order on Remand at 3-12. While the
administrative law judge again notes her conclusion that the medical opinions of
Drs. Selby and Tuteur tended to be less than objective inasmuch as they did not
cooperate fully during their depositions, she nonetheless properly considered
these medical opinions in their entirety. The administrative law judge, within
a reasonable exercise of her discretion, found that the opinions of Drs. Selby
and Tuteur were not as well reasoned and not as well supported by their
underlying medical documentation as the contrary opinions of Drs. Cohen and
Sandoval, that stated claimant's respiratory impairment was due to a combination
of his coal dust exposure and cigarette smoking. Decision and Order on Remand
at 5, 6, 12; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc); Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989). Specifically, the administrative law judge considered the totality
of the documentation underlying the relevant medical opinions, including the
clinical evidence, employment and social histories, and medical literature
discussed in the opinions. In weighing this evidence, the administrative law
judge reasonably found that Dr. Cohen's opinion was the most persuasive opinion
inasmuch as he better "explained the relationship between the development of
COPD [Chronic Obstructive Pulmonary Disease], manifested in chronic bronchitis
and emphysema and Mr. Tanner's coal dust exposure." Decision and Order on
Remand at 11-12; Clark, supra; Lafferty, supra; see also Fagg
v. Amax Coal Co., 12 BLR 1-77 (1988).
Similarly, the administrative law judge did not fail to follow the Board's
remand instructions with respect to the opinions of Drs. Renn, Dahhan and
Castle. In considering these opinions, the administrative law judge again noted
the Board's holdings in its 1998 decision and her disagreement with some of the
Board's characterizations of her prior opinion and the medical evidence.
Nonetheless, the administrative law judge weighed each of the medical reports in
its entirety, and after discussing the shortcomings of each of the reports,
reasonably found that none was as well reasoned, documented or persuasive as the
opinions of Drs. Cohen and Sandoval. See Decision and Order on Remand at
6-11. Inasmuch as the administrative law judge's analysis is rational and
supported by substantial evidence, we affirm the administrative law judge's
findings that the medical opinions of Drs. Renn, Dahhan and Castle were not as
well supported by their underlying documentation and rationale as the opinions
of Drs. Cohen and Sandoval. Decision and Order on Remand at 10-12; see
Clark, supra; Fagg, supra.
In addition, contrary to employer's contentions, the administrative law
judge reasonably exercised her discretion as fact-finder in determining that the
opinion of Dr. Cohen was well reasoned and persuasive, and, thus, that it was
entitled to the greatest weight because it was better supported, reasoned and
more comprehensive, in light of its underlying documentation. Decision and
Order on Remand at 10; see Clark, supra; Lafferty, supra; see
also Pastva v. The Youghiogheny & Ohio Coal Co., 7 BLR 1-829 (1985).
Similarly, contrary to employer's contention, the administrative law judge
considered the specific text of Dr. Sandoval's medical report, that "COPD can
be related to exposure to coal dust and as such represents coal miner
pneumoconiosis," but reasonably found that the use of the words "can be" do not
indicate an equivocation in relating claimant's respiratory disease to coal dust
exposure. Decision and Order on Remand at 10-11 (emphasis added); Director's
Exhibit 10; see Justice v. Island Creek Coal Co., 11 BLR 1-91
(1988); Campbell v. Director, OWCP, 11 BLR 1-16 (1987). Also, contrary
to employer's contention, the administrative law judge did not mechanically
accord greater weight to the diagnoses offered by Drs. Cohen and Sandoval, based
on their status as examining physicians, but rather, properly considered the
respective qualifications of the physicians, the extent to which their reports
reflect a thorough knowledge of the miner's occupational, medical, social and
smoking histories, and the extent to which their conclusions are supported by
the underlying documentation. See Amax Coal Co. v. Franklin, 957
F.2d 355, 16 BLR 2-50 (7th Cir. 1992); Amax Coal Co. v. Beasley, 957 F.2d
324, 16 BLR 2-45 (7th Cir. 1992). Inasmuch as the administrative law judge has
considered all of the relevant evidence, and provided rational bases for her
crediting of the opinions of Drs. Cohen and Sandoval, that claimant has
established the existence of pneumoconiosis pursuant to Section 718.202(a)(4)
(2000), we affirm her findings as supported by substantial evidence.[3] 20 C.F.R. §§718.201, 718.202(a)(4)
(2000); see Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111
(1989); Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988).
Finally, we affirm the administrative law judge's finding that the evidence
is sufficient to establish that claimant's total respiratory disability was due
to pneumoconiosis pursuant to Section 718.204(b) (2000). Contrary to employer's
contention, the administrative law judge did not discredit the opinions of Drs.
Tuteur, Selby, Dahhan, Renn and Castle on the issue of causation because they
did not diagnose pneumoconiosis when she found it existed. Brief for Employer
at 29. The administrative law judge plainly stated that Dr. Cohen's well-reasoned opinions were more convincing than those of the other doctors,
considered in light of his "far weightier background and foundation for his
reasoned opinions...." Decision and Order on Remand at 11. Furthermore, the
administrative law judge found causation established based upon the opinions of
Drs. Cohen and Sandoval, showing that pneumoconiosis contributed significantly
to claimant's disabling lung disease.[4]
Decision and Order on Remand at 12. Because it is rational and supported by
substantial evidence, we affirm the administrative law judge's finding and hold
claimant has established that pneumoconiosis was a substantially contributing
cause of his totally disabling pulmonary impairment established pursuant to
Section 718.204(c).[5]
Finally, in light of our affirmance of the administrative law judge's
weighing of the medical evidence and her finding that the evidence is sufficient
to establish entitlement to benefits, we decline employer's request that this
case be remanded to a new administrative law judge for reconsideration of the
evidence.
Accordingly, the administrative law judge's Decision and Order on Remand -
Awarding Benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations implementing the Federal Coal
Mine Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and are
found at 65 Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726). All
citations to the regulations, unless otherwise noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and
stayed, inter alia, all claims pending on appeal before the Board under the Act, except for those in
which the Board, after briefing by the parties to the claim, determined that the regulations at issue in the lawsuit
would not affect the outcome of the case. National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C.
Feb. 9, 2001)(order granting preliminary injunction). The Board subsequently issued an order requesting
supplemental briefing in the instant case. On August 9, 2001, the District Court issued its decision upholding the
validity of the challenged regulations and dissolving the February 9, 2001 order granting the preliminary injunction.
National Mining Ass'n v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001). The court's decision
renders moot those arguments made by the parties regarding the impact of the challenged regulations.
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2) In addition, the Board rejected employer's contention that the administrative law judge
erred in failing to weigh the reports of Drs. Stotlar, Nordlicht and Wood, holding that the omission in their opinions
of a diagnosis of pneumoconiosis is not the equivalent of a diagnosis of no pneumoconiosis under 20 C.F.R.
§718.201(2000). Tanner v. Amax Coal Co., BRB No. 98-0456 BLA, slip op. at 3 (Dec. 18,
1998)(unpub.).
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3) Employer also contends that the administrative law judge erred in failing to weigh the
contrary x-ray evidence and CT scan evidence against the medical opinion evidence under Section 718.202(a)
(2000), in light of Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997).
We disagree. The instant case arises within the jurisdiction of the United States Court of Appeals for the Seventh
Circuit, see Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc); Director's Exhibit
2. Inasmuch as the Seventh Circuit court has not adopted the reasoning by the United States Court of Appeals for
the Third Circuit and we have consistently applied the long-standing precedent that Section 718.202(a) provides four
alternative methods by which claimant can establish the existence of pneumoconiosis, we decline to apply
Williams in this case. See Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985);
cf. Island Creek Coal Co. v. Compton, 211 F.3d 203, BLR (4th Cir. 2000);
Williams, supra.
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4) In view of this determination, we reject employer's contention that the administrative
law judge erred in finding that Dr. Cohen's opinions established that pneumoconiosis was a necessary condition of
claimant's totally disabling pulmonary disease. Decision and Order on Remand at 12. See Shelton
v. Director, OWCP, 899 F.2d 690, 693, 13 BLR 2-444, 2-448 (7th Cir. 1990); but see 20 C.F.R.
§718.204(c)(1)(i)- (ii) (2001).
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5) The administrative law judge applied the disability causation regulation set forth at 20
C.F.R. §718.204(b) (2000). After revision of the regulations the disability causation regulation is now set
forth at Section 718.204(c).
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NOTE: This is an UNPUBLISHED BLA Document.
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