BRB No. 00-0892 BLA
MARION G. McKEE )
)
Claimant-Petitioner )
)
v. )
)
PAT WHITE FUELS, )
INCORPORATED )
)
and )
)
KENTUCKY COAL PRODUCERS )
SELF INSURANCE FUND )
)
Primary Employer/Carrier- )
Respondents )
)
WHITLEY DEVELOPMENT )
CORPORATION ) DATE ISSUED:08/30/2001
)
and )
)
OLD REPUBLIC INSURANCE )
COMPANY, INCORPORATED )
)
Secondary Employer/ )
Carrier-Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Benefits of Robert L.
Hillyard, Administrative Law Judge, United States Department of Labor.
John L. Grigsby (Appalachian Research and Defense Fund of Kentucky,
Inc.) Barbourville, Kentucky, for claimant.
Lois A. Kitts (Baird, Baird, Baird & Jones), Pikeville, Kentucky, for
primary employer.
Mark E. Solomons (Greenberg & Traurig LLP), Washington, D.C., for
secondary employer.
Barry H. Joyner (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:
Claimant appeals the Decision and Order - Denial of Benefits (99-BLA-0233)
of Administrative Law Judge Robert L. Hillyard 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 involves a duplicate claim.[2] Adjudicating the miner's duplicate claim pursuant to 20 C.F.R.
Part 718 (2000), the administrative law judge determined that claimant
established eleven years of coal mine employment and a material change in
conditions pursuant to 20 C.F.R. §§725.309 and 718.204(c) (2000).
Turning to the merits of the claim, the administrative law judge considered all
of the relevant evidence and found that although claimant established that he
was totally disabled pursuant to 20 C.F.R. §718.204(c)(1) and (4) (2000),
the preponderance of the evidence failed to prove that claimant suffered from
pneumoconiosis pursuant to 20 C.F.R. §718.202(a) (2000) or that his total
disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b)
(2000).[3] Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge's
consideration of the evidence is erroneous pursuant to Sections 718.202(a)(1),
(3), (4), and 718.204(b) (2000).[4] Both
employers have responded and urge affirmance of the denial of benefits.[5] The Director, Office of Workers' Compensation
Programs, has indicated that he will not participate in the merits of 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).
In order to establish entitlement to benefits pursuant to 20 C.F.R. Part
718, claimant must prove that he suffers from pneumoconiosis, that the
pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is
totally disabling. 20 C.F.R.§§718.3, 718.202, 718.203, 718.204.
Failure to establish any one of these elements precludes entitlement. Trent
v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR
1-1 (1986)(en banc).
Pursuant to Section 718.202(a)(1) (2000), the administrative law judge
found that the record contains fifty-two interpretations of sixteen x-rays, of
which forty-five are by physicians who are either B" readers or dually
qualified as Board-certified radiologists and B" readers. Decision and Order
at 19. The administrative law judge found that of the forty-five readings by
better qualified physicians, thirty-seven were negative for pneumoconiosis.
Relying on the majority of the interpretations by highly qualified physicians,
the administrative law judge concluded that the preponderance of the x-ray
evidence failed to demonstrate the presence of pneumoconiosis. Id.
Claimant contends that the administrative law judge erred in considering
five negative interpretations by Dr. Wheeler, which are based upon copies of x-rays, rather than the originals. Director's Exhibit 32. Claimant also argues
that the administrative law judge failed to note that five x-ray readings by Dr.
Fino are duplicative of readings he had previously performed. With respect to
the readings Dr. Wheeler performed of copies of claimant's chest x-rays, the
exclusion of these interpretations from the record would not alter the
administrative law judge's ultimate determination that the majority of the
interpretations by highly qualified physicians fails to demonstrate the presence
of pneumoconiosis. Error, if any committed by the administrative law judge is,
therefore, harmless. See Johnson v. Jeddo-Highland Coal Co., 12 BLR 1-53
(1988); Larioni v. Director, OWCP, 6 BLR 1-1276 (1984). Regarding Dr.
Fino's x-ray readings, in his Decision and Order, the administrative law judge
listed the x-rays by the date on which the x-ray was taken, not interpreted, and
included only one reading by Dr. Fino of each of the films. Decision and Order
at 6-11. Thus, the administrative law judge condensed the multiple
interpretations by Dr. Fino of any particular x-ray into a single entry based
upon the x-ray date and did not count them as multiple interpretations.
Claimant also asserts that the administrative law judge erred in treating
the readings proffered by Drs. Binns and Abramowitz as negative for
pneumoconiosis without addressing the comments that the physicians included with
their readings. This contention is devoid of merit as the regulations makes
plain, an x-ray must be classified at least as Category 1 in order to establish
the existence of pneumoconiosis by x-ray at Section 718.202(a)(1). See Section
718.102(b). Since neither Dr. Abramowitz, nor Dr. Binns need an x-ray as
Category 1 or better, they offered no evidence of pneumoconiosis and their
reading were correctly deemed negative. In fact, both doctors checked the box
indicating that there were no pleural abnormoralities consistent with
pneumoconiosis. Director's Exhibit 34 at 3, 5.
In addition, claimant contends that the administrative law judge did not
discuss a 1985 positive x-ray reading by Dr. Richard O'Neill. The
administrative law judge specifically noted the physician's x-ray
interpretation of 1/2, s, t in his discussion of Dr. O'Neill's July 12, 1985
medical opinion under Section 718.202(a)(4) (2000), but did not include this
reading in his summary of the x-ray evidence.[6]
Decision and Order at 6-11; Director's Exhibit 38. With respect to the
administrative law judge's finding under Section 718.202(a)(1) (2000), however,
the administrative law judge rationally relied upon the preponderance of
negative readings by the highly qualified physicians of record. Decision and
Order at 19. Inasmuch as the record does not indicate that Dr. O'Neill is
similarly qualified, claimant has failed to indicate how this omission by the
administrative law judge would alter the ultimate findings at Section
718.202(a)(1). See Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th
Cir. 1993); Edmiston v. F & R Coal Co., 14 BLR 1-710 (1990). Therefore, we hold that
this error is harmless. See Johnson, supra; Larioni,
supra. Inasmuch as the administrative law judge rationally found that
the preponderance of the x-ray interpretations by physicians who are highly
qualified is negative for the existence of pneumoconiosis, we affirm his
findings pursuant to Section 718.202(a)(1). See Woodward, supra;
Edmiston, supra.
Claimant next challenges the administrative law judge's finding that
claimant failed to establish the existence of complicated pneumoconiosis
pursuant to Section 718.202(a)(3) and 20 C.F.R. §718.304 (2000). The
evidence relating to the presence of complicated pneumoconiosis includes an x-ray dated February 13, 1998, on which Drs. Barrett and Bassali detected large
opacities and Dr. Sargent stated that he was uncertain as to whether the x-ray
contained large opacities consistent with complicated pneumoconiosis or
represented healed tuberculosis or some other granulomatous disease. Director's
Exhibit 8; Claimant's Exhibit 5. Drs. Abramowitz, Binns, and Fino read this x-ray as negative for pneumoconiosis of any type, while Dr. Baker detected simple
pneumoconiosis, but found no large opacities. Director's Exhibits 8, 31, 34.
Dr. Bassali also read an x-ray dated May 13, 1998 as positive for complicated
pneumoconiosis while Drs. Wheeler, Scott, and Broudy found this film to be
negative for pneumoconiosis. Director's Exhibits 29, 35; Claimant's Exhibit 5.
The record also contains five CT scan readings. Drs. Scott and Wheeler
determined that CT scans dated November 5, 1994 and December 29, 1998, were
negative for pneumoconiosis. Employer's Exhibit 8. Dr. Tucker found the
presence of severe pulmonary fibrosis attributable to previous granulomatous
infection on a July 6, 1999 CT scan. Employer's Exhibit 6.
In addressing Section 718.304 (2000), the administrative law judge
considered the evidence set forth above, with the exception of Dr. Barrett's
diagnosis of large opacities on the February 13, 1998 x-ray and the negative
readings of the December 29, 1998 CT scan proffered by Drs. Scott and Wheeler.
The administrative law judge stated that:
Based on a review of the record evidence, I find that the evidence
weighing against a finding of complicated pneumoconiosis is at least
as strong as the evidence weighing in favor of such a finding.
Consequently, the claimant has failed to prove by a preponderance of
the evidence that he suffers from complicated pneumoconiosis and is
not entitled to the presumption of pneumoconiosis.
Decision and Order at 20. Claimant alleges that the administrative law judge's
finding must be vacated as the administrative law judge failed to note that Dr.
Barrett detected large opacities on the x-ray dated February 13, 1998 and
neglected to consider the opinions of Drs. Saha, Vaezy, and O'Neill. Director's
Exhibits 8, 38; Claimant's Exhibits 1, 2. We disagree. The regulations
provide that complicated pneumoconiosis may be demonstrated by x-ray evidence,
by biopsy or autopsy evidence yielding massive lesions in the lung, or by
consideration of any acceptable medical means of diagnosis. 20
C.F.R.§718.304(a)-(c). See Melnick v. Consolidation Coal Co., 16 BLR
1-31 (1991)(en banc).
Pursuant to Section 718.202(a)(1) (2000), the administrative law judge
addressed all of the x-ray readings of record, including all but one of those in
which large opacities were noted, and rationally found that the preponderance of
readings by highly qualified physicians was negative for pneumoconiosis.
Decision and Order at 19; see Woodward, supra; Edmiston,
supra. We hold that the administrative law judge's finding that the x-ray evidence was insufficient to establish the existence of simple
pneumoconiosis pursuant to section 718.202(a)(1) supports his finding that the
x-ray evidence indicating large opacities is insufficient to establish
complicated pneumoconiosis pursuant to Section 718.304(a). Decision and Order
at 19-20. As a result, the inclusion of Dr. Barrett's reading would not alter
this finding. See Melnick supra.
Nevertheless, the administrative law judge properly considered the CT
evidence pursuant to Section 718.304(c) and rationale found that Drs. Wheeler
and Scott interpreted a November 5, 1994 scan as negative for pneumoconiosis.
His omission of the same physicians' readings of the December 29, 1998 CT scan
is of no significance, as they were also negative for pneumoconiosis. See
Johnson, supra; Larioni, supra. The administrative law
judge further noted that in his interpretation of the scan dated July 6, 1999,
Dr. Tucker diagnosed "severe pulmonary fibrosis with retraction, most likely
related to previous granulomatous infection." Decision and Order at 20;
Employer's Exhibit 6. Dr. Tucker's finding does not constitute a diagnosis of
complicated pneumoconiosis nor does it provide a basis upon which a
determination could be made that the processes viewed on the CT scan were
equivalent to opacities greater than one centimeter in size if viewed on an x-ray. 20 C.F.R. §718.304(c); see Gray v. SLC Coal Co., 176 F.3d 382, 21 BLR 2-615 (6th Cir. 1999). Inasmuch as the administrative law judge's findings are rational
and supported by substantial evidence, we must affirm the administrative law
judge's determination that claimant did not establish the existence of
pneumoconiosis under Sections 718.202(a)(3) and 718.304 (2000).
Claimant also alleges that the administrative law judge erred in his
weighing of the evidence at Section 718.202(a)(4). The administrative law judge
found that although Drs. Kleinerman, Fino, Branscomb and Broudy did not examine
claimant, their opinions that claimant did not suffer from pneumoconiosis were
based on a thorough review of the record and were well-reasoned, and were
therefore entitled to some weight. Decision and Order at 20. The
administrative law judge then considered the contrary medical opinions by Drs.
Baker, Turner, Vaezy, Kraman, and Saha and determined that they were not
entitled to as much weight.[7] The
administrative law judge found, therefore, that claimant failed to prove by a
preponderance of the medical opinion evidence that he suffers from
pneumoconiosis at Section 718.202(a)(4). Decision and Order at 21.
Claimant argues that the administrative law judge should have accorded
determinative weight to the opinions of Drs. Baker, Vaezy, and Turner.[8] Claimant states that Dr. Turner's affirmative
response to the question of whether claimant's coal-dust induced lung disease
contributes to his respiratory impairment is a statement that claimant's lung
disease arose out of coal mine employment. We disagree. The administrative law
judge acted within his discretion in finding that in the same document, Dr.
Turner's statement that claimant has chronic lung disease which "may" be related
to previous coal dust exposure, previous infections or cigarette smoking is
equivocal and therefore, insufficient to establish legal pneumoconiosis pursuant
to Section 718.201. Decision and Order at 20; Claimant's Exhibit 1; see
Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988); Snorton v. Zeigler
Coal Co., 9 BLR 1-106 (1986).
Regarding Dr. Vaezy's opinion, contrary to claimant's contention, although
significant weight may be accorded to the treating physician's opinion, the
administrative law judge is not required to do so when he or she determines that
the treating physician's opinion is not well-documented and well-reasoned.
See Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir.
1995); Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th
Cir. 1993); Tedesco v. Director, OWCP, 18 BLR 1-103(1994). In the
present case, the administrative law judge acted within his discretion in
finding that Dr. Vaezy's diagnosis of coalworkers' pneumoconiosis on the basis
of claimant's medical history and fifteen years of dust exposure lacked support
and detail sufficient to substantiate the diagnosis. Decision and Order at 21;
see Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); York v.
Jewell Ridge Coal Corp., 7 BLR 1-766 (1985); Oggero v. Director,
OWCP, 7 BLR 1-860 (1985). Inasmuch as the administrative law judge
rationally found that the medical opinion evidence is equally balanced, we
affirm his finding that claimant failed to establish the existence of
pneumoconiosis at Section 718.202(a)(4). See Director, OWCP v. Greenwich
Collieries [Ondecko], 512 U.S. 267, 18 BLR 2A-1 (1994).
In light of our affirmance of the administrative law judge's determination
that claimant did not establish the existence of pneumoconiosis pursuant to
Section 718.202(a)(1)-(4), an essential element of entitlement, we must also
affirm the denial of benefits. See Trent, supra. Consequently, we
need not reach claimant's arguments concerning the administrative law judge's
findings under Section 718.204(b).
Accordingly, the administrative law judge's Decision and Order - Denial of
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 Board was notified by counsel that claimant died on March 2, 2001.
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2)Claimant filed his first application for benefits on
October 10, 1984. Director's Exhibit 38. The district director denied the
claim on August 5, 1985. Claimant did not appeal and the claim was deemed
abandoned and administratively closed on November 13, 1985. Claimant filed the
current claim on January 21, 1998. Director's Exhibit 1.
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3)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 20 C.F.R. Parts 718, 722, 725, and 726 (2001). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to forty-seven 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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4)The administrative law judge's findings regarding the length of claimant's coal mine
employment and pursuant to 20 C.F.R. §§718.202(a)(2), 718.204(c) and 725.309 (2000) are affirmed
as unchallenged on appeal. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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5)The administrative law judge identified Pat White Fuels Incorporated as the operator
responsible for the payment of benefits pursuant to 20 C.F.R. §725.492. Decision and Order at 6. The
administrative law judge further determined that if, for some reason, Pat White Fuels Incorporated is unable to
assume liability for the payment of benefits should entitlement be established, Whitley Development Corporation
would be the responsible operator. Id.
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6)Dr. O'Neill stated in his medical report that the chest x-ray indicates "remotely coal
workers' pneumoconiosis, 1/2, s/t." Director's Exhibit 38.
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7)The administrative law judge found that Dr. Turner's opinion that claimant suffered
from chronic obstructive pulmonary disease which may be related to previous dust exposure, previous infections or
cigarette smoking, was equivocal, poorly supported, and entitled to little weight. The administrative law judge also
found that Dr. Turner failed to specifically address the extent of claimant's smoking history and relied partially on
x-ray findings, which the administrative law judge determined to be negative for pneumoconiosis. Decision and
Order at 20. With respect to Dr. Vaezy's opinion, the administrative law judge found that the physician's opinion
that claimant had coal workers' pneumoconiosis based on history and fifteen years of dust exposure failed to address
claimant's extensive smoking history and was unsupported. Id. The administrative law judge also found
that Dr. Kraman's opinion that claimant's pneumoconiosis probably arose out of coal mine employment failed to
state the basis for the conclusion and was equivocal. The administrative law judge accorded little weight to the
opinions and reports by Drs. Saha, Whitley and O'Neill as they failed to identify the etiology of their diagnoses of
obstructive airway disease, chronic obstructive pulmonary disease and chronic bronchitis. The administrative law
judge found that Dr. Baker's diagnosis of pneumoconiosis was supported by his examination of claimant was entitled
to some weight. Id.
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8)Claimant does not challenge the weight accorded to the opinions by Drs. Kraman,
Saha, Whitley and O'Neill. These findings are therefore affirmed as unchallenged on appeal. Skrack,
supra.
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NOTE: This is an UNPUBLISHED BLA Document.
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