BRB No. 00-0959 BLA
EDGAR MARTIN
Claimant-Petitioner
v.
LIGON PREPARATION COMPANY
and
OLD REPUBLIC INSURANCE COMPANY
Employer/Carrier-
Respondents
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
)
)
)
)
)
) DATE
ISSUED:08/30/2001
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) DECISION AND ORDER
Appeal of the Decision and Order and Decision and Order Denying Motion
for Reconsideration of Daniel J. Roketenetz, Administrative Law Judge,
United States Department of Labor.
Stephen A. Sanders (Appalachian Research and Defense Fund of Kentucky,
Inc.), Prestonsburg, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
employer.
Michelle S. Gerdano (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: SMITH and McGRANERY, Administrative Appeals Judges, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant[1] appeals the Decision and Order
and Decision and Order Denying Motion for Reconsideration (98-BLA-1166) of
Administrative Law Judge Daniel J. Roketenetz with respect to 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).[2] This claim is before the Board for the third
time. In the initial Decision and Order, Administrative Law Judge Mollie W.
Neal credited claimant with sixteen years of coal mine employment and determined
that the evidence of record was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2000). Accordingly,
benefits were denied. On appeal, the Board affirmed Judge Neal's findings under
Section 718.202(a)(1)-(3) (2000), but vacated her determination under Section
718.202(a)(4) (2000) and remanded the case for reconsideration of the medical
opinions of record. Martin v. Ligon Preparation Co., BRB No. 94-2594 BLA
(Mar. 10, 1995)(unpub.).
On remand, Judge Neal again found that claimant failed to establish the
existence of pneumoconiosis pursuant to Section 718.202(a)(4) (2000).
Accordingly, benefits were denied. The Board affirmed this finding and the
denial of benefits on appeal. Martin v. Ligon Preparation Co., BRB No.
96-0853 BLA (Feb. 25, 1997)(unpub.). Claimant filed a petition for modification
pursuant to 20 C.F.R. §725.310 (2000).
Administrative Law Judge Daniel J. Roketenetz (the administrative law
judge) determined that claimant established total respiratory disability
pursuant to 20 C.F.R. §718.204(c)(4) (2000) and, consequently, a change in
conditions pursuant to Section 725.310 (2000). The administrative law judge
further found, however, that claimant failed to establish the existence of
pneumoconiosis under Section 718.202 (2000) or that his disability was
attributable, at least in part, to pneumoconiosis pursuant to 20 C.F.R.
§718.204(b) (2000). Accordingly, benefits were denied. Upon claimant's
motion for reconsideration, the administrative law judge addressed the opinion
of Dr. Sundaram, which he had not explicitly weighed in his Decision and Order,
and reaffirmed his determination that the evidence was insufficient to establish
the existence of pneumoconiosis and total disability due to pneumoconiosis.
Accordingly, claimant's motion for reconsideration was denied.
On appeal, claimant contends that the administrative law judge did not
properly weigh the opinions of Drs. Broudy, Fino, Rasmussen, Potter and
Sundaram. Employer responds, urging affirmance of the denial of benefits. The
Director, Office of Workers' Compensation Programs, has not responded to the
merits of claimant's appeal.[3]
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).
Claimant initially argues that the administrative law judge accorded
inappropriate weight to the opinions of Drs. Rasmussen, Broudy, and Fino. The
record indicates that Dr. Rasmussen examined claimant and opined that he has x-ray changes consistent with pneumoconiosis . Claimant's Exhibit 1. Dr. Broudy
examined claimant on several occasions, reviewed the evidence of record, and
opined that claimant does not have pneumoconiosis and is not totally disabled.
Director's Exhibits 48, 65, 77, 82; Employer's Exhibits 1, 10, 11. Dr. Fino
reviewed the evidence of record and concluded that claimant does not have
pneumoconiosis and is not suffering from a totally disabling respiratory or
pulmonary impairment. Director's Exhibit 101; Employer's Exhibits 9, 12, 14.
In considering whether claimant established the existence of pneumoconiosis, the
administrative law judge found that "in terms of rationale," Dr. Rasmussen's
opinion was entitled to the same weight as the opinions of Drs. Broudy and Fino.
Decision and Order at 8. The administrative law judge also concluded that the
opinions of Drs. Broudy and Fino were ultimately entitled to greater weight
because Drs. Broudy and Fino had more complete medical histories available to
them as they assessed claimant's condition. Id.
Claimant contends specifically that the administrative law judge erred in
finding that Drs. Broudy and Fino relied upon more complete medical histories
than Dr. Rasmussen, as Drs. Broudy and Fino did not explicitly address an
exercise blood gas study and a diffusing capacity test obtained by Dr. Rasmussen
during his examination of claimant on January 22, 1999. Claimant's contention
has merit. Pursuant to 20 C.F.R. §718.201, any chronic pulmonary disease
resulting in a respiratory or pulmonary impairment significantly related to or
substantially aggravated by dust exposure in coal mine employment is considered
to be pneumoconiosis. The results of the arterial blood gas study and diffusing
capacity test are probative, therefore, of the issue of whether claimant is
suffering from a respiratory or pulmonary impairment that meets the legal
definition of pneumoconiosis.[4] Moreover,
claimant notes correctly that both Drs. Broudy and Fino referred to the values
produced on the type of tests performed by Dr. Rasmussen as being supportive, in
general, of a diagnosis of interstitial disease that could be related to dust
exposure in coal mine employment. Employer's Exhibits 11, 14. Inasmuch as the
administrative law judge did not consider the significance of this data when
weighing Dr. Broudy's and Dr. Fino's opinions, we must vacate the administrative
law judge's findings under Sections 718.202(a)(4) and 718.204(b) and remand the
case to the administrative law judge for reconsideration of the reports of Drs.
Rasmussen, Broudy, and Fino. See Clark v. Karst-Robbins Coal Co., 12 BLR
1-149 (1989)(en banc); Tackett v. Director, OWCP, 7 BLR 1-703
(1985).
Claimant next contends that the administrative law judge erred in failing
to assign controlling weight to the opinions of Drs. Potter and Sundaram, both
of whom treated claimant and diagnosed pneumoconiosis. The administrative law
judge acknowledged Dr. Potter's status as claimant's treating physician and
found his opinion "to be of virtually no probative value" because the report
proffered after claimant requested modification contains "conclusions without
rationale or reference to objective findings." Decision and Order at 7;
Decision and Order on Reconsideration at 2; Director's Exhibit 141. Although
the administrative law judge was not required to accord greatest weight to Dr.
Potter's diagnosis, based upon his status as a treating physicians without first
assessing the degree to which Dr. Potter's opinion is reasoned and documented,
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 (6thCir. 1993); Tedesco v.
Director, OWCP, 18 BLR 1-103 (1994), the administrative law judge's
characterization of Dr. Potter's opinion is not supported by the record. See
Tackett, supra. The administrative law judge indicated that he
considered both the evidence submitted in conjunction with claimant's request
for modification and the previously submitted evidence of record. Decision and
Order at 8. However, in assessing Dr. Potter's opinion, the administrative law
judge did not explicitly address the reports Dr. Potter submitted prior to the
request for modification. Director's Exhibits 17, 75, 76, 77, 103. In
addition, Dr. Potter appears to have cited x-ray readings, claimant's symptoms,
and pulmonary function study results in rendering his diagnoses. Id.
Accordingly, we vacate the administrative law judge's finding with respect to
Dr. Potter's opinion. The administrative law judge must consider all of Dr.
Potter's medical reports on remand in determining the probative value of Dr.
Potter's opinion regarding the issues of the existence of pneumoconiosis and
total disability due to pneumoconiosis.
Finally, we affirm the administrative law judge's decision to accord little
weight to the opinion of Dr. Sundaram. The administrative law judge acted
within his discretion in finding that the credibility of Dr. Sundaram's
diagnosis of pneumoconiosis was
diminished by the fact that his opinion was based upon positive x-ray readings
when the administrative law judge had previously determined that the
preponderance of the x-ray evidence is negative for the existence of
pneumoconiosis. Decision and Order on Reconsideration at 2; Lafferty v.
Cannelton Industries, Inc., 12 BLR 1-190 (1989); Clark, supra.
Accordingly, the administrative law judge's Decision and Order and Decision
and Order on Reconsideration denying benefits are vacated and this case is
remanded to the administrative law judge for further proceedings consistent with
this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)Claimant is Edgar Martin, the miner, who filed a claim for benefits on June 22, 1986.
Director's Exhibit 1.
Back to Text
2)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 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.
Back to Text
3)We affirm the administrative law judge's findings pursuant to 20 C.F.R.
§§718.202(a)(1)-(3), 718.204(c) (2000), and his determination that claimant established a change in
conditions under 20 C.F.R. §725.310 (2000) by proving that he is totally disabled pursuant to 20 C.F.R.
§718.204(c)(4), as they have not been challenged on appeal. See Skrack v. Island Creek Coal Co.,
6 BLR 1-710 (1983).
Back to Text
4)Employer asserts that the pulmonary function and blood gas studies obtained by Dr.
Rasmussen in January of 1999 are not probative of the existence of pneumoconiosis, as they produced nonqualifying
results. Employer's argument is without merit, as for the purposes of determining whether a miner has
pneumoconiosis as defined in 20 C.F.R. §718.201, whether an objective study exceeds the table values set
forth in Appendices B or C to Part 718 is not relevant. See 20 C.F.R. §718.201. Moreover, an
administrative law judge is not required to discredit a physician's diagnosis of an impairment, whether totally
disabling or of a lesser degree, solely on the ground that the objective studies upon which the physician relies did
not produce qualifying values. See McMath v. Director, OWCP, 12 BLR 1-6 (1988); Fuller v.
Gibraltar Coal Corp., 6 BLR 1-1291 (1984).
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
