BRB No. 00-1019 BLA
FLOYD E. DUNCAN )
)
Claimant-Respondent )
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v. )
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DIXIE FUEL COMPANY ) DATE ISSUED:08/30/2001
)
and )
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BITUMINUS CASUALTY CORPORATION )
)
Employer/Carrier- )
Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order on Remand - Award of Benefits of Daniel
J. Roketenetz, Administrative Law Judge, United States Department of
Labor.
Mark L. Ford (Smith & Ford), Harlan, Kentucky, for claimant.
Tab R. Turano (Greenberg Traurig LLP), Washington, D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand - Award of Benefits (96-BLA-821) of Administrative Law Judge Daniel J. Roketenetz on a duplicate 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 third
time. In the Board's most recent Decision and Order it delineated the lengthy
procedural history of this case. See Duncan v. Dixie Fuel Co., BRB No. 98-0879 BLA (Apr. 5, 1999)(unpub.). In that case, the Board affirmed the
administrative law judge's finding that the evidence was sufficient to establish
total disability, but vacated the administrative law judge's findings that the
existence of pneumoconiosis and therefore a material change in conditions was
established and that disability causation was established and remanded the case for
reconsideration of those issues.[2] The Board
further held that should benefits be awarded on remand, they should commence as of
April 1, 1995, the month the claim was filed inasmuch as the administrative law
judge properly found that the onset date of disability was not ascertainable from
the record. On remand, the administrative law judge found that the medical opinion
evidence was sufficient to establish the existence of pneumoconiosis and total
disability due to pneumoconiosis. Accordingly, benefits were awarded.
On appeal, employer contends that the administrative law judge erred in
finding established the existence of pneumoconiosis, total disability, and total
disability due to pneumoconiosis. Claimant responds, urging affirmance of the
administrative law judge's Decision and Order. The Director, Office of Workers'
Compensation Appeals, has not filed a brief in this appeal.
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 and stayed, for the duration of the lawsuit, 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, determines that the
regulations at issue in the lawsuit will 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). In the present case, the Board established a
briefing schedule by order issued on April 20, 2001, to which all parties have
responded, asserting that the regulations at issue in the lawsuit do not affect the
outcome of this case. Based on the briefs of the parties and our review of the
record, we hold that the disposition of this case is not impacted by the challenged
regulations. Therefore, we will proceed to adjudicate the merits of this appeal.
The Board's scope of review is defined by statute. If the findings of fact
and conclusions of law of the administrative law judge are supported by substantial
evidence, are rational and consistent with 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).
In order to establish entitlement to benefits in a living miner's claim
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. See 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).
Employer contends that the administrative law judge erred in finding that Dr.
Baker's opinion satisfied the legal definition of pneumoconiosis pursuant to 20
C.F.R. §718.201 and erred in finding that it was a reasoned opinion. We
disagree. Dr. Baker diagnosed the existence of coal workers' pneumoconiosis in a
report dated June 1, 1995, and in a later opinion, dated August 17, 1995, stated
that he believed "[claimant] has pneumoconiosis, 1/0, although the preponderance
of evidence suggest that he may not." Director's Exhibits 11, 12. Dr. Baker
further added that claimant had a "significant respiratory impairment which is, at
least in part, related to his coal dust exposure." Director's Exhibit 12. The
administrative law judge correctly determined that Dr. Baker's opinion was "clearly
a clinical diagnosis of the disease" and satisfies the legal definition of
pneumoconiosis. Decision and Order on Remand at 3; Cornett v. Benham Coal,
Inc., 227 F.3d 569, BLR 2- (6th Cir. 2000). Further, in weighing Dr.
Baker's opinion the administrative law judge permissibly found it "reasoned" as it
was based on an examination, x-ray evidence, a 39-year underground coal mining
history and other objective evidence. Clark v. Karst-Robbins Coal Co., 12
BLR 1-149 (1989)(en banc). In addition, the administrative law judge
permissibly found the opinions of Drs. Broudy and Dahhan, who both found no
pneumoconiosis, entitled to less weight as their opinions failed to adequately
explain their conclusions and to consider contradictory evidence. Peabody v.
Hill, 123 F.2d 412, 21 BLR 1-192 (6th Cir. 1997); Director, OWCP v.
Rowe, 710 F.2d 251 (6th Cir. 1983); Tussey v. Island Creek Coal Co., 982
F.2d 1036, 17 BLR 2-16 (6th Cir. 1993); Bobick v. Saginaw Mining Co., 13 BLR
1-52 (1988); Stark v. Director, OWCP, 9 BLR 1-36 (1986); Trujillo v.
Kaiser Steel Corp., 8 BLR 1-472 (1986); see Hutchens v. Director, OWCP,
8 BLR 1-16 (1985); see also Church v. Eastern Associated Coal Co., 20 BLR
1-8 (1996); Seals v. Glen Coal Co., 19 BLR 1-80 (1995)(en
banc)(Brown, J. concurring.); Carson v. Westmoreland Coal Co., 19 BLR
1-18 (1994). Additionally, contrary to employer's argument, it is clear from the
administrative law judge's discussion of the evidence and references to his prior
findings and the Board's holdings that he did consider both old and new evidence
in finding the existence of pneumoconiosis established. Decision and Order on
Remand at 3-5. We therefore affirm the administrative law judge's finding that the
evidence is sufficient to establish the existence of pneumoconiosis at Section
718.202(a).
Employer next contends that the administrative law judge erred in finding
total disability established on the basis of Dr. Baker's opinion without weighing
all the evidence relevant to the issue of total disability, i.e., pulmonary
function and blood gas study evidence. Employer also contends that Dr. Baker's
opinion is not a reasoned opinion. Contrary to employer's argument it has not
demonstrated an exception to the law of the case, in this instance. As the Board
previously held, contrary to employer's contention, the administrative law judge
considered both the relevant medical opinion evidence and the objective evidence
of record in reaching his finding on total disability. Board's Decision and Order
at 6. Accordingly, we will not revisit the issue of total disability. Gillen
v. Peabody Coal Co., 16 BLR 1-22 (1991); Brinkley v. Peabody Coal Co.,
14 BLR 1-147 (1990). Moreover, contrary to employer's contention, the Board
affirmed the administrative law judge's finding that Dr. Baker's opinion
established total disability in light of claimant's usual coal mine employment
which involved heavy manual labor. See Cornett, supra; Hvizdzak
v. North American Coal Corp., 7 BLR 1-469 (1984); see also Aleshire v.
Central Coal Corp., 8 BLR 1-70 (1985).
Finally, employer contends that the administrative law judge erred in finding
the evidence sufficient to establish total disability due to pneumoconiosis. Dr.
Baker stated that claimant's significant respiratory impairment was "at least in
part, related to his coal dust exposure," and that coal dust exposure, smoking and
possible heart disease all "fully" contributed to his impairment. Director's
Exhibit 12. Dr. Dahhan found no disability, while Dr. Broudy found no significant
pulmonary disease or respiratory impairment arising from coal mine employment.
Employer's Exhibits 1, 2. The administrative law judge permissibly accorded less
weight to the opinion of Dr. Dahhan because he found no pneumoconiosis.
Tussey, supra; Bobick, supra; Trujillo,
supra; see Hutchens, supra. The administrative law judge also
accorded less weight to Dr. Broudy's opinion, as he failed to address or explain
what effect claimant's lengthy coal mine employment would have on his disability.
Stark, supra; Hutchens, supra. Moreover, the
administrative law judge permissibly accorded greater weight to Dr. Baker's
opinion, as it was well reasoned and documented. Hill, supra;
Rowe, supra; Church, supra; Seals, supra;
Carson, supra. As the administrative law judge acted rationally in
according greater weight to Dr. Baker's opinion, he properly found it sufficient
to establish total disability due to pneumoconiosis. 20 C.F.R. §718.204(c);
see Cross Mountain Coal, Inc. v. Ward, 93 F.3d 211, 20 BLR 2-360 (6th
Cir. 1996); Adams v. Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th Cir.
1989); see also Peabody Coal Co. v. Smith, 123 F.2d 412, 21 BLR 1-192 (6th
Cir. 1997). We therefore affirm the administrative law judge's finding that
claimant established total disability due to pneumoconiosis.
Accordingly, the administrative law judge's Decision and Order on Remand -
Award 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 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.
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2) The prior claim was denied because claimant failed to establish
the existence of pneumoconiosis. See Board's Decision and Order at 2.
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NOTE: This is an UNPUBLISHED BLA Document.
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