BRB No. 00-1125 BLA
DELMER L. DUTY )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
COVE HOLLOW COAL COMPANY )
)
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 of Rudolf L. Jansen, Administrative Law
Judge, United States Department of Labor.
Lawrence L. Moise III (Vinyard & Moise), Abingdon, Virginia, for
claimant.
Darren E. Pogoda and Tab R. Turano(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, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order (1999-BLA-1154) of Administrative Law
Judge Rudolf L. Jansen denying modification and benefits 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] In the original Decision and Order,
Administrative Law Judge Giles J. McCarthy credited claimant with at least fifteen
years of coal mine employment and found that the x-ray evidence established
invocation of the interim presumption of total disability due to pneumoconiosis
pursuant to 20 C.F.R. §727.203(a)(1), but concluded that employer established
rebuttal of the interim presumption pursuant to 20 C.F.R. §727.203(b)(2).
Accordingly, benefits were denied. Decision and Order at 2; Director's Exhibit 85.
Claimant timely requested modification pursuant to 20 C.F.R. §725.310 and
submitted additional medical evidence.[2]
On modification, Judge McCarthy again found that the weight of the x-ray
evidence established invocation of the interim presumption pursuant to Section
727.203(a)(1), but determined that employer established rebuttal of the interim
presumption pursuant to Section 727.203(b)(3) and, accordingly, denied modification
and benefits. Id.; Director's Exhibit 122.
Claimant appealed the denial of benefits to the Board and in Duty v. Cove
Hollow Coal Co., BRB No. 92-0247 BLA (May 25, 1993)(unpub.), the Board affirmed
the administrative law judge's invocation finding at Section 727.203(a)(1) as
unchallenged on appeal and affirmed as supported by substantial evidence his
finding that rebuttal was established pursuant to Section 727.203(b)(3).
Id.; Director's Exhibit 144. Claimant again requested modification and
submitted additional medical evidence. Because Judge McCarthy was unavailable to
consider claimant's second request for modification, the case was reassigned,
without objection, to Administrative Law Judge Edward J. Murty, Jr.
On second modification, Judge Murty concluded that the medical evidence of
record failed to establish invocation of the interim presumption pursuant to
Section 727.203(a)(1)-(4). He therefore denied benefits under 20 C.F.R. Part 727.
Judge Murty also considered entitlement pursuant to 20 C.F.R. Part 718 (2000) and
found that the evidence failed to establish the existence of pneumoconiosis or
total respiratory disability pursuant to Sections 718.202(a) and 718.204(c) (2000).
Accordingly, benefits were denied under 20 C.F.R. Part 718 (2000).
Claimant appealed the denial of benefits to the Board and in Duty v. Cove
Hollow Coal Co., BRB No. 98-0174 BLA (Oct. 16, 1998)(unpub.), the Board
affirmed the administrative law judge's finding of no invocation at Section
727.203(a)(1) as supported by substantial evidence and affirmed his findings
unfavorable to claimant pursuant to Sections 727.203(a)(2)-(4), 718.202(a) and
718.204(c) as unchallenged on appeal. Id.; Director's Exhibit 186. Claimant
again requested modification and submitted additional evidence.
On third modification, the subject of the instant appeal, the district
director initially determined that claimant was entitled to benefits, but employer
controverted the finding and requested a formal hearing. The claim was referred
to the Office of Administrative Law Judges and assigned to Judge Jansen (the
administrative law judge). The administrative law judge considered the previously
submitted evidence and the evidence developed and submitted subsequent to the
previous denial, which included x-ray readings, pulmonary function studies, an
arterial blood gas study and medical opinions. The administrative law judge
credited claimant with twenty-five years and five months of coal mine employment
and adjudicated this case involving a modification request pursuant to 20 C.F.R.
Part 727 and 20 C.F.R. Part 718 (2000). The administrative law judge found that the
evidence was insufficient to establish invocation of the interim presumption
pursuant to 20 C.F.R. §727.203(a)(1)-(4) and insufficient to establish
entitlement pursuant to 20 C.F.R. Part 718. The administrative law judge thus
found that the evidence was insufficient to establish a change in conditions or a
mistake in a determination of fact pursuant to 20 C.F.R. §725.310 (1999).
Accordingly, modification and benefits were denied. In the instant appeal,
claimant contends that the administrative law judge erred in his weighing of the
pulmonary function study evidence pursuant to Section 727.203(a)(2) and in his
weighing of the medical opinions pursuant to Section 727.203(a)(4).[3] Employer responds, urging affirmance of the
denial of benefits. The Director, Office of Workers' Compensation Programs (the
Director), has not filed a brief on the merits 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 Association 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 May 21, 2001, to which employer
and the Director 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.[4] Based on the briefs submitted
by employer and the Director, and our review, we hold that the disposition of this
case is not impacted by the challenged regulations. Therefore, the Board will
proceed to adjudicate the merits of this appeal.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are 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).
After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
Decision and Order of the administrative law judge is supported by substantial
evidence and contains no reversible error therein. Initially, claimant contends
that the administrative law judge erred in failing to find the pulmonary function
study evidence sufficient to establish invocation of the interim presumption
pursuant to Section 727.203(a)(2). In this case, the administrative law judge
considered all of the pulmonary function study evidence submitted since the denial
of claimant's most recent claim which consists of a November 11, 1998 qualifying
pulmonary function study by Dr. Patel and a November 3, 1999 qualifying pulmonary
function study by Dr. Hippensteel. Decision and Order at 7, 12; Director's Exhibit
187; Employer's Exhibit 11. In addition, there are validation reports regarding
the November 11, 1998 pulmonary function study by Drs. Hippensteel and Michos.
Decision and Order at 8; Employer's Exhibits 13-14. The administrative law judge
noted that, while the two pulmonary function studies produced qualifying results,
Dr. Hippensteel, the administering physician, commented that the values obtained
on the November 3, 1999 study underestimated claimant's true pulmonary function and
that Drs. Hippensteel and Michos both commented that the values obtained on the
November 11, 1998 study underestimated claimant's true pulmonary function.
Decision and Order at 12 Employer's Exhibits 11, 13-14. Based on these findings,
the administrative law judge concluded that the evidence failed to establish
invocation of the interim presumption pursuant to Section 727.203(a)(2) and that
claimant had not demonstrated a material change in conditions. Decision and Order
at 12. Inasmuch as an administrative law judge may assign a qualifying pulmonary
function study little or no weight, see Winchester v. Director, OWCP, 9 BLR
1-177 (1986); Runco v. Director, OWCP, 6 BLR 1-945 (1984); cf.
Greer v. Director, OWCP, 940 F.2d 88, 15 BLR 2-167 (4th Cir. 1991), and may
accord greater weight to the opinion of a consulting physician regarding the
validity of a pulmonary function study, see Siegel v. Director, OWCP, 8 BLR
1-156 (1985); Street v. Consolidation Coal Co., 7 BLR 1-65 (1984), we affirm
the administrative law judge's treatment of the pulmonary function study evidence.
Accordingly, the administrative law judge permissibly found that the pulmonary
function studies of record failed to establish total disability pursuant to Section
727.203(a)(2). Consequently, we affirm the administrative law judge's finding that
pulmonary function study evidence was insufficient to establish invocation of the
interim presumption pursuant to Section 727.203(a)(2).
Claimant next contends that the administrative law judge erred in failing to
find the medical opinion evidence sufficient to establish invocation of the interim
presumption pursuant to Section 727.203(a)(4). We disagree. In considering
whether total disability was established pursuant to Section 727.203(a)(4) based
on the newly submitted evidence, the administrative law judge permissibly credited
the opinion of Dr. Hippensteel, who found that claimant was not totally disabled
from a respiratory standpoint, based on his credentials, Wetzel v. Director,
OWCP, 8 BLR 1-139 (1985), and because his conclusion was better documented and
reasoned than Dr. Patel's as it was supported by the credible objective medical
evidence. Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Fuller v.
Gibraltar Coal Corp., 6 BLR 1-291 (1984); Decision and Order at 13; Employer's
Exhibit 11, 15. In addition, the administrative law judge properly accorded
diminished weight to the opinion of Dr. Patel in light of his reliance on an
invalidated pulmonary function study. See Director, OWCP v. Siwiec, 894 F.2d
635, 13 BLR 2-259 (3d Cir. 1990); Trent v. Director, OWCP, 11 BLR 1-26
(1987); Decision and Order at 13; Director's Exhibit 187. Accordingly, the
administrative law judge permissibly found that the medical reports of record
failed to establish total disability pursuant to Section 727.203(a)(4).
Consequently, we affirm the administrative law judge's finding that the medical
opinion evidence was insufficient to establish the existence of a totally disabling
respiratory or pulmonary impairment and thus insufficient to establish invocation
of the interim presumption pursuant to Section 727.203(a)(4). We therefore affirm
the administrative law judge's finding that the evidence was insufficient to
establish a change in conditions pursuant to Section 725.310 (1999) and we affirm
the denial of benefits under 20 C.F.R. Part 727.[5]
The administrative law judge also found that claimant failed to establish
entitlement pursuant to 20 C.F.R. Part 718 (2000). In this case involving a miner
with over ten years of coal mine employment, the administrative law judge should
have considered this claim filed prior to March 31, 1980, under the permanent
criteria of 20 C.F.R. Part 410, Subpart D, instead of 20 C.F.R. Part 718 (2000).
Muncy v. Wolfe Creek Collieries Coal Company, Inc., 3 BLR 1-627 (1981). The
Board, however, has held that where the administrative law judge has made the
necessary findings of fact after discussing all of the relevant evidence of record,
the Board will review the case by applying those findings to the proper
regulations. Hamric v. Director, OWCP, 6 BLR 1-1091 (1984).
Under 20 C.F.R. Part 410, Subpart D, claimant has the burden of establishing
that he suffers from pneumoconiosis, that the pneumoconiosis arose out of coal mine
employment and that he is totally disabled due to pneumoconiosis. 20 C.F.R.
§§410.414, 410.416, 410.422, 410.426. Failure to establish any of these
requisite elements precludes entitlement. Saunders v. Director, OWCP, 7 BLR
1-186 (1984); Migalich v. Director, OWCP, 2 BLR 1-27 (1979).
In the instant case, the administrative law judge weighed all of the recent
x-ray evidence of record and properly found that this evidence was insufficient to
establish the existence of pneumoconiosis. Mullins Coal Company, Inc. of
Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g
denied, 484 U.S. 1047 (1988); Clark v. Karst-Robbins Coal Co., 12 BLR
1-149 (1989)(en banc); Decision and Order at 6-7, 9-10. Further, the
administrative law judge also weighed the pulmonary function studies, the blood gas
studies and medical opinions and rationally determined that this evidence failed
to establish the existence of a totally disabling respiratory or pulmonary
impairment arising out of coal mine employment. As the pulmonary function studies
were invalid and the blood gas study was non-qualifying, this evidence thus
supports the administrative law judge's finding that claimant failed to establish
the existence of a totally disabling respiratory or pulmonary impairment. Decision
and Order at 12-13. Moreover, the administrative law judge permissibly discounted
the opinion of Dr. Patel in light of the physician's reliance on an invalidated
pulmonary function study. See Siwiec, supra; Trent,
supra; Decision and Order at 13. Consequently, we hold that the evidence
of record fails to establish the existence of pneumoconiosis or a totally disabling
respiratory or pulmonary impairment pursuant to 20 C.F.R. §§410.414,
410.416, 410.422, 410.426, and that claimant is therefore precluded from
entitlement under the permanent criteria of 20 C.F.R. Part 410, Subpart D.
Migalich, supra. Furthermore, the administrative law judge properly
reviewed the entire record and concluded that there was no mistake in a
determination of fact in the prior denial. The Board is not empowered to reweigh
the evidence nor substitute its inferences for those of the administrative law
judge. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Worley
v. Blue Diamond Coal Co., 12 BLR 1-20 (1988). Therefore, we affirm the
administrative law judge's finding that claimant failed to establish modification
pursuant to 20 C.F.R. §725.310 (1999) as it is supported by substantial
evidence and is in accordance with law. See Jessee v. Director, OWCP,
5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993). Inasmuch as claimant has failed to
establish modification pursuant to 20 C.F.R. §725.310 (1999), we affirm the
denial of benefits. Jessee, supra.
Accordingly, the Decision and Order of the administrative law judge denying
modification and benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
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. There are no revisions to 20 C.F.R. Part
727.
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2) The amendments to the regulation at 20 C.F.R. §725.310 do not apply to claims,
such as this, which were pending on January 19, 2001; rather, the version of this regulation as published in the 1999
Code of Federal Regulations is applicable. See 20 C.F.R. §725.2(c), 65 Fed. Reg. 80,057
(2000).
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3) The administrative law judge's findings with respect to the x-ray evidence and blood gas
study evidence and whether this evidence would establish invocation of the interim presumption pursuant to 20 C.F.R.
§727.203(a)(1), (3) or a change in conditions pursuant to 20 C.F.R. §725.310 (1999) are unchallenged on
appeal and therefore are affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4) Pursuant to the Board's instructions, the failure of a party to submit a brief within 20 days
following receipt of the Board's Order issued on May 21, 2001, would be construed as a position that the challenged
regulations will not affect the outcome of this case.
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5)We note that as the instant claim was properly adjudicated under 20 C.F.R. Part 727, the
presumption at 20 C.F.R. §410.490 is inapplicable. Whiteman v. Boyle Land and Fuel Co., 15 BLR
1-11 (1991); Pauley v. Bethenergy Mines, Inc., 111 S.Ct. 2524, 15 BLR 2-155 (1991).
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NOTE: This is an UNPUBLISHED BLA Document.
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