BRB Nos. 00-1124 BLA
and 00-1124 BLA-A
THOMAS E. SWINDALL )
)
Claimant-Petitioner )
)
v. )
)
CLINCHFIELD COAL COMPANY ) DATE ISSUED:08/30/2001 )
Employer-Respondent )
)
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 of John C. Holmes,
Administrative Law Judge, United States Department of Labor.
Thomas E. Swindall, Clintwood, Virginia, pro se.
Timothy W. Gresham, Abingdon, Virginia, for employer.
Dorothy 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, DOLDER and McGRANERY, Administrative
Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals and employer cross-appeals the Decision and Order on Remand (1998-BLA-0429) of Administrative Law
Judge John C. Holmes denying benefits on a petition for modification on a claim[1] 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). This is the second time this case has been
before the Board. By Decision and Order dated March 10, 2000, the Board vacated
the administrative law judge's Decision and Order denying modification of the
previous denial and remanded the case for further consideration. The Board
instructed the administrative law judge to make a specific finding as to the number
of years claimant was exposed to coal dust and to reconsider Dr. Robinette's
medical opinion. Swindall v. Clinchfield Coal Co., BRB No. 98-1337 BLA
(Mar. 10, 2000)(unpublished). On remand, the administrative law judge credited
claimant with fourteen years of qualifying coal mine employment/coal dust exposure
and reiterated his finding that claimant's totally disabling pulmonary impairment
was caused by smoking. Further, the administrative law judge found, based upon a
consideration of all of the evidence of record, that claimant did not establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) (2000).
Accordingly, the administrative law judge denied benefits. Claimant appeals,
generally challenging the denial of benefits.[2]
In response, employer argues that the administrative law judge's denial of
benefits is supported by substantial evidence. Additionally, in its cross-appeal,
employer challenges the administrative law judge's finding that claimant worked as
a miner under the terms of the Act and the number of years credited as qualifying
coal mine employment. The Director, Office of Workers' Compensation Programs, did
not file a brief on the merits of this appeal.[3]
In an appeal filed by a claimant without the assistance of counsel, the Board will consider whether the Decision and
Order below is supported by substantial evidence. See McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989);
Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must affirm the administrative law judge's Decision and Order
if the findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent 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 (1985).
In order to establish entitlement to benefits in a living miner's claim filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
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 (2000); Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986)(en
banc). Failure to establish any one of these elements precludes entitlement.
See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc).
After consideration of the administrative law judge's Decision and Order, the
issues on appeal, and the evidence of record, we conclude that the administrative
law judge's finding that claimant failed to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4) is supported by
substantial evidence. The administrative law judge correctly found that the newly
submitted x-ray readings are uniformly negative for pneumoconiosis. Decision and
Order on Remand at 11; Director's Exhibits 53, 56, 60, 61; Employer's Exhibits 2-11. Further, with respect to the previously submitted x-ray evidence, the
administrative law judge correctly found that forty-seven of the fifty-four
readings by B readers were negative for pneumoconiosis. September 30, 1996
Decision and Order at 5; Director's Exhibits 12-14, 25-29, 32, 33,36, 39-44. The
administrative law judge properly found that the x-rays read as positive for
pneumoconiosis were subsequently reread as negative by numerous dually qualified
physicians.[4] September 30, 1996 Decision and
Order at 5; Director's Exhibits 14, 28, 33. As the majority of qualified
physicians interpreted the x-ray evidence as negative for the existence of
pneumoconiosis, we affirm the administrative law judge finding that the x-ray
evidence is insufficient to establish the existence of pneumoconiosis. Melnick
v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en banc); Decision and
Order on Remand at 11.
Further, because the record contains no biopsy evidence or evidence of
complicated pneumoconiosis, see 20 C.F.R. §718.304 (2000), and the
presumptions at 20 C.F.R. §§718.305 and 718.306 (2000) are inapplicable
to this claim filed after January 1, 1982, the administrative law judge properly
found that the evidence did not establish the existence of pneumoconiosis at
Section 718.202(a)(2) and (3) (2000). Decision and Order on Remand at 11.
With respect to Section 718.202(a)(4) (2000), the administrative law judge
properly found that the medical opinions of record are insufficient to establish
the existence of pneumoconiosis. The administrative law judge noted Dr.
Robinette's status as claimant's treating physician and that he was the only
physician of record to diagnose pneumoconiosis, the administrative law judge acted
within his discretion in according less weight to Dr. Robinette's opinion because,
inter alia, he failed to fully consider claimant's smoking history and his
diagnosis of pneumoconiosis was based, in part, on a positive x-ray interpretation
when the vast majority of x-ray readings and CT scan readings are negative for
pneumoconiosis.[5] See Sterling Smokeless
Coal Co. v. Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997); see also
U.S. Steel Mining Co., Inc. v. Director, OWCP [Jarrell], 187 F.3d 384,
21 BLR 2-639 (4th Cir. 1999); Milburn Colliery Co. v. Hicks, 138 F.3d 524,
21 BLR 2-323 (4th Cir. 1998); Decision and Order on Remand at 13. Decision and
Order on Remand at 11-13; Director's Exhibits 26, 53, 62.
Moreover, the administrative law judge properly found that Dr. Robinette's
opinion was outweighed by the contrary opinions of Drs. Monahan, Paranthaman,
Kanwal, and Iosif, who examined claimant and Dr. Fino, who reviewed the available
medical records, as the objective evidence of record supports their diagnosis that
claimant does not suffer from pneumoconiosis.[6]
See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
King v. Consolidation Coal Co., 8 BLR 1-262 (1985); Wetzel v. Director,
OWCP, 8 BLR 1-139 (1985); Decision and Order on Remand at 11-13; Director's
Exhibits 10, 25, 39, 44, 45, 59; Employer's Exhibits 20, 22. Finally, the
administrative law judge properly determined that the CT scan readings of record
do not establish the presence of pneumoconiosis. Decision and Order on Remand at
11. Although Drs. Navani and Epling described "interstitial markings," neither
physician diagnosed pneumoconiosis. Director's Exhibit 56, 60. Accordingly, we
affirm the administrative law judge's finding that claimant failed to establish the
existence of pneumoconiosis under Section 718.202(a) (2000).
Inasmuch as substantial evidence supports the administrative law judge's
finding that claimant failed to establish the existence of pneumoconiosis, an
essential element of entitlement, the denial of benefits under 20 C.F.R. Part 718
is affirmed. See Trent, supra; Gee, supra. Therefore,
we need not address employer's arguments on cross-appeal.
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)This claim, filed on June 20, 1994, was denied by the
administrative law judge on September 30, 1996. The administrative law judge found
that claimant was a coal miner for a "significant time" during his thirty-eight
year tenure with employer, that employer conceded that claimant was totally
disabled by a pulmonary impairment, but the evidence was insufficient to establish
the existence of pneumoconiosis. Director's Exhibit 52. Claimant petitioned for
modification of that denial on July 30, 1997. Director's Exhibit 53. The
administrative law judge issued a Decision and Order denying modification on June
15, 1998.
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2)On November 13, 2000, claimant's counsel, Lawrence L. Moise,
III, filed a Petition for Review and brief and a motion requesting the Board to
accept the pleading although filed out of time. The Board accepted claimant's
brief on appeal and gave employer thirty days from receipt of claimant's brief to
respond and file its cross-appeal and brief. By motion dated June 25, 2001,
Lawrence L. Moise, III, requested the Board to allow him to withdraw as claimant's
counsel of record. On July 17, 2001, the Board granted counsel's motion to
withdraw as claimant's counsel of record and considered claimant to be proceeding
without the assistance of counsel.
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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. The Director and employer have responded asserting that the regulations at issue in
the lawsuit do not affect the outcome of this case. Claimant has not responded to the Board's order. Claimant's
failure to submit a brief following the receipt of the Board's order is construed as a position that the challenged
regulations will not affect the outcome of this 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)A dually qualified physician is a B reader and a Board-certified radiologist. A "B-reader" is a physician who has demonstrated
proficiency in evaluating chest roentgenograms for roentgenographic quality and in
the use of the ILO-U/C classification for interpreting chest roentgenograms for
pneumoconiosis and other diseases by taking and passing a specially designed
proficiency examination given on behalf of or by the Appalachian Laboratory for
Occupational Safety and Health. See 20 C.F.R. §718.202(a)(1)(ii)(E)
(2000); 42 C.F.R. §37.51; Mullins Coal Co., Inc. of Virginia v. Director,
OWCP, 484 U.S. 135, 145 n. 16, 11 BLR 2-1, 2-16 n.16 (1987), reh'g
denied, 484 U.S. 1047 (1988); Roberts v. Bethlehem Mines Corp., 8 BLR
1-211 (1985). A designation of "Board-certified" means certification in radiology
or diagnostic roentgenology by the American Board of Radiology, Inc. or the
American Osteopathic Association. See 20 C.F.R. §718.202(a)(1)(ii)(C)
(2000).
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5)The administrative law judge found that the physicians
examining claimant recorded smoking histories ranging form one-fourth to three
packs of cigarettes for thirty-seven to forty-one years. The administrative law
judge acted rationally in crediting claimant's earlier reports of smoking two to
three packs per day for forty years, based upon claimant's admission that in his
more recent encounters with physicians he adjusted his smoking history downward.
See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
Decision and Order on Remand at 12. Dr. Robinette recorded a smoking history of
twenty-five pack years.
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6)The administrative law judge also credited the opinion in which
Dr. Sargent found that claimant does not have pneumoconiosis. Decision and Order
on Remand at 11-12. Dr. Sargent's opinion appears to contradict the holdings of
the United States Court of Appeals for the Fourth Circuit in Stiltner v. Island Creek
Coal Co., 86 F.3d 337, 20 BLR 2-246 (4th Cir. 1996) and Warth v. Southern Ohio Coal Co., 60 F.3d
173, 19 BLR 2-265 (4th Cir. 1995), inasmuch as he indicated that a restrictive impairment must be present
in order for a diagnosis of a coal dust related impairment to be made. Error, if any, by the
administrative law judge in crediting Dr. Sargent's opinion is harmless, however,
as the administrative law judge correctly identified the five medical opinions
discussed supra, which outweighed Dr. Robinette's diagnosis of
pneumoconiosis. See Johnson v. Jeddo-Highland Coal Co., 12 BLR 1-53 (1988);
Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
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NOTE: This is an UNPUBLISHED BLA Document.
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