BLA UNPUBLISHED Document: 01-0864.pdf: Cook v. Westmoreland Coal Co

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BOBBY R. COOK )
)
Claimant-Respondent )
)
v. )
)
WESTMORELAND COAL )
COMPANY ) DATE ISSUED:08/08/2002
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER

Appeal of the Decision and Order - Award of Benefits on Remand from the
Benefits Review Board, of Paul H. Teitler, Administrative Law Judge,
United States Department of Labor.

Kathy L. Snyder (Jackson & Kelly PLLC), Morgantown, West Virginia, for
employer.

Barry H. Joyner (Eugene Scalia, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
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, HALL and GABAUER, Administrative Appeals Judges.

SMITH, J.:

Employer contends that the reasons given by the administrative law judge for finding Dr. Walker's opinion
to be reasoned are irrational. The administrative law judge found Dr. Walker's opinion, which includes a
diagnosis of pneumoconiosis, see Claimant's Exhibit 1, to be reasoned because it was based upon, and
adequately supported by, (1) Dr. Walker's actual observations upon examination of claimant's lungs when he
performed a thoracotomy in 1996; (2) Dr. Walker's review of claimant's medical records and work history; (3)
Dr. Walker's assessment of claimant's condition in connection with claimant's state disability claim; and (4) the
opinions of claimant's other treating physicians. Decision and Order on Remand at 4-5. The administrative law
judge added:

The determination to accord the opinion of Dr. Walker greater weight was made after a thorough
review of all the medical opinion evidence of record, taking into account the credentials of the
various physicians, whether the physician actually had the opportunity to personally examine the
Claimant and whether the physician was a treating physician. The fact that Dr. Walker had the
opportunity to actually examine the Claimant's lung was also determined to be a significant factor.

Decision and Order on Remand at 5. Employer argues that, pursuant to Peabody Coal Co. v. McCandless,
255 F.3d 465, BLR (7th Cir. 2001)(administrative law judge erred in crediting the autopsy prosector's
diagnosis of pneumoconiosis merely because the prosector performed the autopsy, where there was no apparent
basis in the record for concluding that the prosector's gross examination made his opinion any more reliable than
those of the competing physicians who reviewed the tissue slides and detected no pneumoconiosis.),[5] the administrative law judge's finding that Dr. Walker's opinion is
reasoned because he observed claimant's lung has no basis in science or fact. Employer also argues that the
administrative law judge substituted his opinion for that of the medical experts in crediting Dr. Walker's diagnosis
of pneumoconiosis because he performed a gross examination of claimant's lungs whereas "the diagnosis of coal
workers' pneumoconiosis" is a microscopic finding and is not diagnosed grossly." Employer's Brief at
7. Employer thus asserts that Dr. Walker's opinion cannot be mechanically accorded deference over those of
examining or reviewing physicians.

Employer's contentions lack merit. The administrative law judge provided valid reasons for his
determination that Dr. Walker's opinion, that claimant has pneumoconiosis, is reasoned and entitled to greater
weight. As the noted Board in Cook (2000) and as the administrative law judge discussed on remand, the
relevant evidence of record includes Dr. Zaldivar's statement that "[t]he report given by Dr. Walker that at the time
of thoracotomy the lungs appeared black and there were palpable nodules may indicate that coal workers'
pneumoconiosis might be present that is not seen radiographically," Employer's Exhibit 6. Board's June 22, 2000
Decision and Order at 8; Administrative Law Judge's Decision and Order on Remand at 5; cf. McCandless,
supra. Further, given Dr. Zaldivar's medical opinion, we reject employer's argument that the administrative
law judge substituted his opinion for that of the medical experts by crediting Dr. Walker's diagnosis of
pneumoconiosis based on the physician's gross examination of claimant's lungs.

Employer further contends that the administrative law judge did not explain his finding that Dr. Walker's
opinion is reasoned because "of the opinions of the Claimant's other treating physicians." Decision and Order at
5. Employer's contention lacks merit. The administrative law judge, concluding that Dr. Walker's opinion was
"worthy of great weight," see Decision and Order on Remand at 4, explained:

While the record does not contain a curriculum vitae for Dr. Walker, the record does reveal that Dr.
Walker was Chairman of the Occupational Pneumoconiosis Board in West Virginia in 1975. The
record also reveals that Dr. Walker reviewed the record in the Claimant's application for disability
benefits at the state level, including pulmonary function studies from Beckley Appalachian Regional
Hospital performed in March and April of 1974, and x-ray records. Dr. Walker was also the
Claimant's treating physician in 1986, performing a thoracotomy on him, which gave him the
opportunity to observe the Claimant's lung. I find that his qualifications, as a treating physician,
as well as his credential as Chairman of the State Occupational Pneumoconiosis Board, coupled with
the fact that Dr. Walker has reviewed the Claimant's medical records and has personally treated
him, renders his opinion worthy of great weight. In so concluding, I find that his opinion is not only
documented, but it is well-reasoned and it is supported by the opinions of the Claimant's other
treating physicians, namely Drs. Rasmussen, Aguilar and Diaz.

Id. The administrative law judge thereby properly determined that Dr. Walker's opinion was reasoned
as it was supported by the medical studies and records upon which it was based. Clark v. Karst-Robbins Coal
Co., 12 BLR 1-149 (1989)(en banc). Further, the administrative law judge rationally determined that
Dr. Walker's opinion that claimant has pneumoconiosis is buttressed by the opinions of Drs. Rasmussen, Aguilar
and Diaz who also diagnosed the disease. 20 C.F.R. §718.202(a)(4); see generally Milburn Colliery
Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131
F.3d 438, 21 BLR 2-269 (4th Cir. 1997).

Employer next argues that the administrative law judge's finding that Dr. Walker's opinion is reasoned
because the physician was aware of the miner's medical and work histories is valid, but does not go far enough.
Employer asserts that a history of exposure to coal mine dust does not, by itself, conclusively confirm that claimant
has pneumoconiosis or is disabled by that condition. Employer asserts that, similarly, Dr. Walker's knowledge
of claimant's medical history does not mean that he gave a well-reasoned opinion. Employer's arguments lack
merit. The administrative law judge did not offer either of these reasons as being determinative of the issue of
whether Dr. Walker's opinion was reasoned. Rather, he provided valid reasons for according determinative weight
to Dr. Walker's opinion. See discussion, supra. Moreover, it is within the discretion of the
administrative law judge to determine the weight and credibility of the medical opinion evidence, Worley v.
Blue Diamond Coal Co., 12 BLR 1-20 (1988), and insofar as employer seeks a re-weighing of the evidence,
its arguments are rejected. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).

Employer contends that Dr. Walker's opinion is unreasoned because neither the x-ray nor the CT scan
referenced in Dr. Walker's discharge summary supports a diagnosis of pneumoconiosis. Dr. Walker's Discharge
Summary dated August 25, 1986 details his findings in performing a thoracotomy and includes the diagnoses of
right parasternal hernia and pneumoconiosis. He indicated, in pertinent part:

The patient was seen in the office because of a mass at the right cardiophrenic angle. This was not
present on a film taken 3-4 years earlier. Outside CT scan of the chest was interpreted as showing
findings suggestive of possible neoplasm. Chest x-ray and additional CT scan at this hospital with
comparison of the outside CT scan revealed the density at the right cardiophrenic angle. The
impression was a soft tissue mass in the right lung base. A neoplasm must be considered.

Claimant's Exhibit 1. In his Operative Record, Dr. Walker indicated, in pertinent part:

The patient had a normal chest x-ray 3-4 years ago. Recently, chest x-rays revealed a mass in the
right cardiophrenic angle. This has been described on one x-ray as a pericardial fat pad or
pericardial cyst. A CT scan of the chest has probable atelectasis and tumor and a second x-ray
report of the chest utilizing the old films was tumor suspect.

FINDINGS: At thoracotomy, the right lung was black. There were small, palpable nodules
throughout. The right lung - the fissures were approximately 50% fused. The lung was
emphysematous. There was a mass present at the right cardiophrenic angle. The mass was enlarged
fat pad. As it was excised, it was seen to come out of the abdominal cavity.

Id. The administrative law judge found that the fact that Dr. Walker's finding of pneumoconiosis on gross
examination of the lungs "runs contrary to the x-ray evidence does not render his opinion unreasoned. Rather it
renders his opinion worthy of great weight on this issue because he had a more accurate means of assessing the
existence of the disease." Decision and Order on Remand at 4.

We find no merit in employer's contention that the administrative law judge erred in finding Dr. Walker's
diagnosis of pneumoconiosis supported by objective evidence. The regulation at 20 C.F.R. §718.202(a)(4)
provides that a determination of the existence of pneumoconiosis may be made, notwithstanding a negative
x-ray, if a physician exercising sound medical judgment finds that the miner suffers or suffered from
pneumoconiosis as defined in 20 C.F.R. §718.201. The finding of the existence of pneumoconiosis must
be based on objective medical evidence and supported by a reasoned medical opinion. 20 C.F.R.
§718.202(a)(4). Dr. Walker's opinion contains a description of his findings on gross examination of
claimant's lungs. See Claimant's Exhibit 1. The fact that Dr. Walker did not also rely on a positive CT
scan or x-ray does not render unreasoned his diagnosis of pneumoconiosis based on this gross examination of
claimant's lungs. 20 C.F.R. §718.202(a)(4).

Employer next contends that the administrative law judge mechanically credited Dr. Walker's opinion
based on his status as a treating physician without proper explanation or foundation. Employer's contention is
contrary to the record. The administrative law judge recognized that Dr. Walker was a treating physician, but did
not mechanically credit his opinion on this basis. Rather, the administrative law judge properly found that Dr.
Walker's opinion was reasoned and documented, and provided valid reasons for according it determinative weight.
See Decision and Order on Remand at 3-7; see also discussion, supra.

Employer argues that the administrative law judge relied on the opinions of Drs. Rasmussen, Diaz and
Aguilar to find that claimant has pneumoconiosis and is totally disabled by the disease, without determining
whether their opinions were reasoned. Employer thus asserts that the administrative law judge failed to follow
the Board's instruction to weigh the medical opinions on remand and determine whether they are reasoned.
See Board's June 22, 2000 Decision and Order at 9. Employer further asserts that these physicians'
opinions are not well-reasoned. On remand, the administrative law judge found that for the reasons previously
stated in prior decisions, to the extent not vacated by the Board, as well as for the reasons cited in his Decision and
Order on remand, he found the medical opinions of, inter alia, Drs. Walker, Diaz, Rasmussen and Aguilar
to be reasoned and documented and sufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(4). Decision and Order on Remand at 6. In finding disability causation established at 20
C.F.R. §718.204(c), the administrative law judge relied on the "well-reasoned and well-supported" opinions
of Drs. Rasmussen, Diaz and Aguilar. Decision and Order on Remand at 8. Thus, employer correctly argues that
the administrative law judge did not explain, in finding the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(4) or total disability causation under 20 C.F.R. §718.204(c), how he concluded that the
reports of Drs. Rasmussen, Diaz and Aguilar are reasoned. The administrative law judge did, however, perform
a thorough and critical evaluation of the evidence underlying these reports in determining the issue of total
disability pursuant to 20 C.F.R. §718.204(b). See Decision and Order on Remand at 7. Given the
totality of the administrative law judge's findings on remand, we hold harmless this error, as the administrative
law judge ultimately complied with the Board's remand order. We decline to address further employer's
contention that the opinions of Drs. Rasmussen, Diaz and Aguilar are unreasoned, as this argument amounts to
a request to reweigh the evidence. See Anderson, supra.

Employer next contends that the administrative law judge failed to explain why he discredited the opinions
of Drs. Zaldivar, Fino and Hippensteel. Under 20 C.F.R. §718.202(a)(4), the administrative law judge found
Dr. Walker's opinion entitled to greater weight than those of Drs. Hippensteel, Zaldivar and Fino because these
latter three reports did not include "discussions in detail (and in some cases they did not discuss at all) of Dr.
Walker's findings on surgery." Decision and Order on Remand at 4. He did not find that the opinions of Drs.
Hippensteel, Fino or Zaldivar were sufficient to outweigh those of Drs. Walker, Diaz, Aguilar and Rasmussen.
Rather, he found:

While the qualifications of the former physicians may be superior to those of the latter, that is but
one element to be considered. Also to be considered are the facts that (1) Dr. Zaldivar concedes that
Dr. Walker's finding that the lungs of the Claimant appear black with palpable nodules "may
indicate that coal workers' pneumoconiosis might be present that is not seen radiographically" (EX
6); and (2) Drs. Fino and Hippensteel do not appear to have reviewed the discharge summary of Dr.
Walker performed in August 1986, an important piece of medical evidence.

Decision and Order on Remand at 5. The administrative law judge, weighing the opinions of Drs. Zaldivar, Fino
and Hippensteel under 20 C.F.R. §718.204(b), indicated, in pertinent part:

Dr. Zaldivar found mild airway obstruction which, in his opinion, was of no clinical significance.
(EX 6). Dr. Fino also found a mild obstructive ventilatory defect, which was nondisabling. (EX
7). Dr. Hippensteel finds that the Claimant has no pulmonary disability, finding no more than
minimal changes in function upon ventilatory function testing. I find, however, that the medical
opinions of Drs. Aguilar, Diaz, and Rasmussen regarding the Claimant's ability to return to his usual
coal mine employment or comparable, gainful employment to be the more persuasive on this issue.
The Claimant's work involved heavy manual labor. Taking this into account, I find the physical
limitations noted by Drs. Aguilar, Rasmussen and Diaz, as well as the findings upon pulmonary
function testing, sufficient to support their opinion that the Claimant is totally disabled.

Decision and Order on Remand at 7. Employer argues that the administrative law judge mischaracterized "as a
concession" Dr. Zaldivar's statement, in his 1990 report, that "[t]he report given by Dr. Walker that at the time
of thoracotomy the lungs appeared black and there were palpable nodules may indicate that coal workers'
pneumoconiosis might be present that is not seen radiographically," see Employer's Exhibit 6.
Employer's Brief at 17. Employer also asserts that the administrative law judge's findings are "wrong" because
(1) the opinions of Drs. Fino and Hippensteel, that claimant has neither an occupationally acquired lung disease
nor a disabling respiratory impairment, are credible, and (2) because the administrative law judge's findings are
based on his mistaken finding that Drs. Fino and Hippensteel did not review Dr. Walker's findings from the
thoracotomy he performed in 1986. Employer thus argues that the administrative law judge's decision does not
comply with the requirements of the APA.

Employer's contentions lack merit. While the administrative law judge accorded less weight to the reports
of Drs. Zaldivar, Fino and Hippensteel, he did not find them to be not credible. Dr. Zaldivar, in his report dated
June 29, 1988, found no radiographic evidence of pneumoconiosis and opined that claimant does not have coal
workers' pneumoconiosis. Employer's Exhibit 1. Upon his review of additional evidence, including Dr. Walker's
finding of pneumoconiosis in connection with claimant's 1986 thoracotomy, Dr. Zaldivar stated, in his opinion
dated October 13, 1990:
After reviewing this information, my opinion remains the same as given to you on 6/29/88. The
report given by Dr. Walker that at the time of the thoracotomy the lungs appeared black and there
were palpable nodules may indicate that coal workers' pneumoconiosis might be present that is not
seen radiographically. I would like to state that even if there were radiographic pneumoconiosis
present, the amount of impairment which I stated in my report is the same, meaning that he has mild
airway obstruction which is of no clinical significance.

Employer's Exhibit 6. Given Dr. Zaldivar's findings, it was not error for the administrative law judge to find that
"Dr. Zaldivar concedes that Dr. Walker's finding that the lungs of the Claimant appear black with palpable nodules
may indicate that coal workers' pneumoconiosis might be present that is not seen radiographically.'" Decision
and Order on Remand at 5. Further, the record supports the administrative law judge's finding that Drs.
Hippensteel and Fino did not review Dr. Walker's Discharge Summary in which he diagnosed pneumoconiosis
in connection with claimant's 1986 thoracotomy. Specifically, Dr. Hippensteel's report contains only a reference
to the fact that claimant reported to Dr. Zaldivar that he had parts of his right lung removed for a non-cancerous
lesion in 1986. Employer's Exhibit 4. Dr. Fino likewise did not address Dr. Walker's diagnosis of
pneumoconiosis contained in his Discharge Summary, but discussed some of the objective test results reported
by Dr. Walker and concluded, in pertinent part, "There was no microscopic evidence of pneumoconiosis based
on this thoracotomy." Employer's Exhibit 7. Ultimately, the administrative law judge permissibly found that the
opinions of Drs. Zaldivar, Fino and Hippensteel were outweighed by the contrary opinions of Drs. Aguilar, Diaz
and Rasmussen. See Fuller v. Gibraltar Coal Co., 6 BLR 1-1291 (1984); see generally King v.
Consolidation Coal Co., 8 BLR 1-262 (1985).

Based on the forgoing, we affirm the administrative law judge's findings under 20 C.F.R.
§718.202(a)(4) and 20 C.F.R. §718.204(c) and the award of benefits in this case.

Employer next contends that the administrative law judge arbitrarily set the onset date of benefits as the
month in which claimant filed his claim. In remanding this case, the Board in Cook (2000) instructed that
if, on remand, the administrative law judge found the evidence sufficient to again award benefits, he must then
consider the relevant, credible evidence to determine the date from which claimant's pneumoconiosis progressed
to the point of being totally disabling. Board's June 22, 2000 Decision and Order at 11. The Board continued that
if the administrative law judge determined, after weighing the medical evidence, that it is insufficient to establish
a specific date that claimant's pneumoconiosis became totally disabling, 20 C.F.R. §725.503(b) (2000)[6] provides that benefits are properly awardable as of the month during which
claimant filed his application for benefits. Id. The Board then considered employer's argument that the
regulation at 20 C.F.R. §725.503(b) (2000) violates Section 7(c) of the APA because it allows for the
payment of benefits as of a certain date without claimant having affirmatively established entitlement as of that
date and because, in effect, the regulation improperly shifts the burden to employer to establish the date of onset
of disability. The Board held that employer's contention lacked merit because Section 7(c) of the APA, which
provides that, except as otherwise provided by statute, the proponent of a rule or order has the burden of proof,
is not applicable because the regulations at 20 C.F.R. §725.503(b) (2000) and 20 C.F.R. §727.302
specify a party's burden to establish the date from which benefits are to commence. On remand, the administrative
law judge indicated that while he determined previously that Dr. Rasmussen's opinion was a sufficient basis upon
which to establish the onset of claimant's disability due to pneumoconiosis, "upon further reflection it is
determined that the medical evidence in this case does not establish a definitive date of onset. Accordingly,
benefits are payable as of May 1, 1986, the month in which the Claimant filed the instant claim." Decision and
Order on Remand at 9. Employer argues that the administrative law judge failed to provide any reason for his
finding in violation of the APA. Employer also asserts that although the administrative law judge did not cite to
20 C.F.R. §725.503(b),[7] he erred in relying on it as this regulation
is invalid under Section 7(c) of the APA insofar as it allows claimant to receive benefits from the date of filing
even where there is no medical proof submitted by claimant showing that he was totally disabled due to
pneumoconiosis at that time.[8] The Director responds, and argues that
employer's argument is wholly without merit and should be rejected. The Director, in his brief dated October 17,
2001, notes that the same argument was raised by the National Mining Association and rejected by District Court
Judge Emmet G. Sullivan in his 2001 decision upholding the validity of the revised regulations. See Nat'l
Mining Ass'n v. United States Dep't of Labor, F.3d , 2002 WL 1300007 (D.C. Cir. June 14, 2002),
aff'g in part and rev'g in part Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C. 2001).

Lastly, employer contends that the administrative law judge erred by retroactively applying the amended
regulations to this claim. Employer specifically challenges retroactive application of only one revised regulation,
namely the revised regulation at 20 C.F.R. §718.201 regarding the definition of pneumoconiosis.
Employer's Brief at 26-27. The Director argues that employer's argument is without merit as the revised
regulation at 20 C.F.R. §718.201 is applicable to pending claims, and no amendment to the definition of
"pneumoconiosis" codified in the revised regulation at 20 C.F.R. §718.201 is implicated in this case.

We agree with the Director and hold that employer's contention lacks merit. No amendment to the revised
regulation at 20 C.F.R. §718.201 is at issue in the case sub judice. The revisions to the terms
"clinical pneumoconiosis" and "legal pneumoconiosis" are not at issue; the revision clarifying that coal mine dust
exposure may cause both restrictive as well as obstructive lung conditions is not at issue, and the revision
recognizing that pneumoconiosis may be latent and progressive is likewise not at issue. See 20 C.F.R.
§718.201. Further, these amendments are consistent with existing Fourth Circuit case law. See e.g. Gulf
& Western Industries v. Ling, 176 F.3d 226, 21 BLR 2-571 (4th Cir. 1999).

Based on the foregoing, we affirm the administrative law judge's finding that claimant is entitled to benefits
in the instant case and further affirm his award of benefits, with benefits commencing as of May 1, 1986.

Accordingly, the administrative law judge's Decision and Order - Award of Benefits on Remand from the
Benefits Review Board is affirmed.

SO ORDERED.

ROY P. SMITH
Administrative Appeals Judge

I concur.
BETTY JEAN HALL
Administrative Appeals Judge

GABAUER, J., concurring and dissenting:
I concur with the majority that the administrative law judge properly
determined that claimant is entitled to benefits and properly awarded
benefits in this case. I respectfully dissent from the majority opinion on
the issue of onset only. When the Board remanded the case, in its Decision
and Order in Cook v. Westmoreland Coal Co., BRB No. 99-0891 BLA (June
22, 2000)(unpub.), it instructed the administrative law judge to consider,
if reached, the relevant, credible evidence to determine the date from which
claimant's pneumoconiosis progressed to the point of being totally
disabling. Board's June 22, 2000 Decision and Order at 11. The Board
continued that if the administrative law judge determined, after weighing
the medical evidence, that it is insufficient to establish a specific date
that claimant's pneumoconiosis became totally disabling, the regulation at
20 C.F.R. §725.503(b) provides that benefits are properly awardable as
of the month in which claimant filed his application for benefits.
Id. On remand, the administrative law judge simply stated, "While
previously, it was determined that the medical opinion of Dr. Rasmussen was
sufficient to establish a date of onset, upon further reflection it is
determined that the medical evidence in this case does not establish a
definitive date of onset. Accordingly, benefits are payable as of May 1,
1986, the month in which the Claimant filed the instant claim." Decision and
Order on Remand at 9. Because the administrative law judge, on remand, did
not address the relevant, credible medical evidence to resolve the onset
issue, his findings on the onset issue do not comport with the mandate of
the Board in Cook. Hall v. Director, OWCP, 12 BLR 1-80 (1988).
I would, therefore, vacate the administrative law judge's onset
determination and remand the case for the administrative law judge to
determine this issue in a manner consistent with the Board's previous
instructions in Cook.[13]

PETER A. GABAUER, Jr.
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 20 C.F.R. Parts 718, 722, 725, and 726 (2001). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
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2)The provision pertaining to total disability, previously set out at 20 C.F.R.
§718.204(c), is now found at 20 C.F.R. §718.204(b), while the provision pertaining to disability
causation, previously set out at 20 C.F.R. §718.204(b), is now found at 20 C.F.R. §718.204(c).
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3)The Board previously affirmed the administrative law judge's finding that the evidence
is insufficient to establish the existence of pneumoconiosis under 20 C.F.R. §718.202(a)(1)-(3) (2000).
Cook v. Director, OWCP, BRB No. 95-1453 BLA (Apr. 30, 1996)(unpublished).
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4)In a footnote, employer indicates:

For appellate purposes, Westmoreland Coal Company continues to contest the finding of a material
change in condition and several other findings the Board has previously affirmed. See previously
filed Petitions for Review and supporting briefs. Employer's Brief at 2-3 n.2.
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5)The decision of the United States Court of Appeals for the Seventh Circuit in
Peabody Coal Co. v. McCandless, 255 F.3d 465, BLR (7th Cir. 2001) was issued on June 29, 2001,
approximately one month prior to the issuance of the administrative law judge's Decision and Order on Remand
dated July 26, 2001. This case arises within the jurisdiction of the United States Court of Appeals for the Fourth
Circuit. Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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6)The regulation at 20 C.F.R. §725.503 was revised. These revisions, however, only
apply to modification requests and are not implicated in this case. See 20 C.F.R. §725.503(d).
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7)The administrative law judge actually cited to 20 C.F.R. §725.503(b) in
determining the onset issue on remand. Decision and Order on Remand at 8.
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8)Employer indicates, in its Brief dated September 17, 2001, that the issue of whether 20
C.F.R. §725.503(b) (2000) violates Section 7(c) of the Administrative Procedure Act (APA), 5 U.S.C.
§557(c)(3)(A), as incorporated by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C.
§932(a), was then pending before the United States Court of Appeals for the Fourth Circuit in
Westmoreland Coal Co. v. Ramsey, No. 99-2049 (4th Cir. Nov. 9, 2001)(unpub.). The employer in
Ramsey argued that the administrative law judge erred in setting the date of onset of disability as the date
the claim was filed. The Fourth Circuit found no error of fact or law in, inter alia, the administrative law
judge's onset determination and affirmed the Board's affirmance of the administrative law judge's award of
benefits.
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9)Dr. Aguilar examined claimant in May of 1986 and diagnosed, inter alia,
pneumoconiosis. He opined that claimant would be restricted to sedentary work or at least no more than very light
physical work. Claimant's Exhibit 1.
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10)In 1974, Dr. Diaz diagnosed coal workers' pneumoconiosis and indicated that he
agreed with Dr. Rasmussen that claimant was partially disabled due to black lung disease. Claimant's Exhibit 1.
In a questionnaire dated September 9, 1987, Dr. Diaz, subsequent to his examination of claimant on August 4,
1987, indicated that he reviewed the report of Dr. Aguilar and agreed that claimant is totally and permanently
disabled. Id. On May 11, 1988, Dr. Diaz indicated that he agreed with Dr. Faheem that claimant is
completely and totally disabled and could not perform any sedentary work. Id.
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11)Dr. Rasmussen first examined claimant on April 12, 1974. Relevant to the total
disability issue, he found minimal ventilatory insufficiency, moderate impairment in oxygen transfer and abnormal
ventilatory response with exercise. He estimated claimant's overall loss of functional capacity "in the
neighborhood of 50-60%, and opined that claimant would appear to be incapable of performing steady work
beyond strictly light work levels. Director's Exhibit 33. Dr. Rasmussen then examined claimant on May 4, 1979.
Dr. Rasmussen found minimal ventilatory insufficiency, moderate impairment oxygen transfer, an abnormal
ventilatory response with exercise and an abnormal cardiovascular response with exercise. He estimated
claimant's overall loss of functional capacity was "in the neighborhood of 65%" and opined that claimant would
appear to be incapable of performing steady work beyond strictly light work levels. Id. Dr. Rasmussen
again examined claimant on May 27, 1986. He found coal workers' pneumoconiosis with moderate pulmonary
impairment in respiratory functional capacity. Claimant's Exhibit 1.
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12)Further, the Board, in Cook v. Westmoreland Coal Co., BRB No. 99-0891
BLA (June 22, 2000)(unpublished) at 10-13, previously addressed and rejected employer's argument that 20
C.F.R. §725.503(b) (2000) violates Section 7(c) of the APA.
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13)Since I would vacate the administrative law judge's onset finding under 20 C.F.R.
§725.503(b) (2000) based on his failure to follow the Board's remand instructions, Hall v. Director,
OWCP, 12 BLR 1-80 (1988), I decline to reach employer's argument that the administrative law judge's
finding must be vacated because the regulation at 20 C.F.R. §725.503(b) violates Section 7(c) of the
Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C. §554(c)(2), 33
U.S.C. §919(d) and 30 U.S.C. §932(a).
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NOTE: This is an UNPUBLISHED BLA Document.

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