BRB No. 01-0960 BLA
MARY HAZEL SPROLES )
(Widow of JAMES SPROLES) )
)
Claimant-Respondent )
)
v. )
)
BULLION HOLLOW COAL COMPANY ) DATE ISSUED:08/29/2002
)
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 Awarding Survivor's Benefits On Remand
and the Decision and Order Awarding Survivor's Benefits On
Reconsideration of Thomas M. Burke, Administrative Law Judge, United
States Department of Labor.
Joseph E. Wolfe (Wolfe, Farmer, Williams & Rutherford), Norton,
Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig), Washington, D.C., for employer.
Sarah M. Hurley (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, McGRANERY, and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals both the Decision And Order Awarding Survivor's Benefits On
Remand and the Decision and Order Awarding Survivor's Benefits On Reconsideration
(95-BLA-2167) of Administrative Law Judge Thomas M. Burke on a survivor's 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 survivor's claim is before the Board for
a second time.
Claimant initially filed her claim for survivor's benefits on December 5,
1994. On September 10, 1999, the administrative law judge issued a Decision and
Order awarding benefits. The administrative law judge found, based upon the
medical opinion evidence of record, that claimant established the existence of
pneumoconiosis, that pneumoconiosis arose out of coal mine employment, and that
pneumoconiosis was a substantial contributing cause of the miner's death.
Accordingly, benefits were awarded.[2]
Subsequent to an appeal by employer, the Board vacated the award of benefits.
Sproles v. Bullion Hollow Coal Co., BRB No. 00-0128 BLA (Nov. 30,
2000)(unpub.). The Board held that the administrative law judge erred in his
analysis of the medical opinion evidence of pneumoconiosis as the administrative
law judge failed to address all of the factors bearing on the merits of the
opinions. Sproles, slip op. at 3. Further, the Board held that if, on
remand, the administrative law judge were to again determine that the medical
opinion evidence supported a finding of pneumoconiosis, the administrative law
judge was to then weigh the medical opinion evidence with the other relevant
evidence to determine whether the existence of pneumoconiosis was established
pursuant to the holding of the United States Court of Appeals for the Fourth
Circuit in Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th
Cir. 2000), since this case arises in the Fourth Circuit. Lastly, the Board held
that if, on remand, the administrative law judge determined that all of the
relevant evidence established the existence of pneumoconiosis, the administrative
law judge was to determine whether pneumoconiosis was a substantially contributing
cause of death.
On remand, the administrative law judge concluded that based on the award of
benefits, in the miner's claim, and the finding that the existence of
pneumoconiosis was established by medical opinion evidence, in the miner's claim,
employer was collaterally estopped from contesting the existence of pneumoconiosis
in the survivor's claim. Decision and Order on Remand at 1-4. Pursuant to the
Board's remand instructions, however, the administrative law judge nonetheless
considered the medical opinion evidence and concluded that such evidence
independently supported a finding of the existence of pneumoconiosis in the
survivor's claim. Decision and Order on Remand at 5-16. The administrative law
judge then weighed all the relevant evidence regarding the existence of
pneumoconiosis together pursuant to Compton, supra, i.e., x-ray and medical opinion evidence in this case, and determined that the weight of
this evidence established the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a). Decision and Order at on Remand at 4-5, 16. Finally, the
administrative law judge determined that the weight of the evidence of record
supported a finding that the miner's death was due to pneumoconiosis pursuant to
20 C.F.R. §718.205(c). Accordingly, benefits were awarded on the survivor's
claim.
Subsequent to a motion for reconsideration by employer, the administrative law
judge issued a Decision and Order Awarding Survivor's Benefits on Reconsideration
(Decision and Order on Reconsideration). In the Decision and Order on
Reconsideration, the administrative law judge rejected employer's assertions
regarding the applicability of the new regulations and concluded that the new
regulations were applicable to the instant claim. Decision and Order on
Reconsideration at 1. The administrative law judge further rejected employer's
assertion that he had erred in applying sua sponte the doctrine of
collateral estoppel in this case. Decision and Order on Reconsideration at 2.
Lastly, the administrative law judge rejected employer's assertions on the merits
and reiterated his findings on the merits. Decision and Order on Reconsideration
at 2. Accordingly, employer's motion for reconsideration was denied and survivor's
benefits were again awarded.
On appeal, employer contends that the administrative law judge had no
authority to apply sua sponte the doctrine of collateral estoppel in this
case. Rather, employer asserts that claimant's failure to raise the issue in
earlier proceedings constituted a waiver of his right to assert that affirmative
defense. Employer further argues that the administrative law judge erred in
concluding that the weight of the evidence, as a whole, supported a finding of the
existence of pneumoconiosis. Lastly, employer contends that administrative law
judge erred in finding that pneumoconiosis caused the miner's death. Claimant, in
response, urges that the award of benefits be affirmed. The Director Office of
Workers' Compensation Programs (the Director), responds for the limited purpose of
challenging employer's assertions regarding the administrative law judge's
application of collateral estoppel, and also contends that the administrative law
judge properly applied the new regulations. In reply, employer reiterates its
contentions.
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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to survivor's benefits, claimant must establish that
the miner had pneumoconiosis, that the miner's pneumoconiosis arose out of coal
mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R.
§§718.3, 718.202, 718.203, 718.205(a); Trumbo v. Reading Anthracite
Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990);
Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP,
11 BLR 1-39 (1988). In survivor's claims filed on or after January 1, 1982, the
miner's death will be considered due to pneumoconiosis if pneumoconiosis was the
cause of the miner's death, was a substantially contributing cause or factor
leading to the miner's death, death was caused by complications of pneumoconiosis,
or the presumption, relating to complicated pneumoconiosis, set forth at Section
718.304, is applicable. 20 C.F.R. §718.205(c)(1)-(3). Pneumoconiosis is a
substantially contributing cause of death if it hastened the miner's death. 20
C.F.R. §718.205(c)(5); see Shuff v. Cedar Coal Co., 967 F.2d 977, 16
BLR 2-90 (4th Cir. 1992), cert. denied, 506 U.S. 1050 (1993).
At the outset, we note that because the administrative law judge addressed all
of the evidence relevant to the existence of pneumoconiosis and independently
found, based upon his consideration of that evidence, that the existence of
pneumoconiosis was established, his finding that the doctrine of collateral
estoppel applied in this case was rendered moot. See Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984). We do note, however, that collateral estoppel could
not, in this case, act to preclude employer from relitigating the issue of the
existence of pneumoconiosis inasmuch as the standard for determining the existence
of pneumoconiosis was changed by the Fourth Circuit subsequent to the award of
benefits in the miner's claim. See Compton, supra; see also Hughes
v. Clinchfield Coal Co., 21 BLR 1-134 (1999)(en banc).
Regarding the administrative law judge's determination that the medical
opinions of record support a finding of pneumoconiosis, employer asserts that the
administrative law judge failed to explain why he found that the opinions of Drs.
Robinette, Paranthaman, Barongan and Nash, diagnosing the existence of
pneumoconiosis, Director's Exhibits 8, 9, 11 13, 14, 37, 38, constituted well-reasoned medical opinions, while the contrary medical opinions of Drs. Sargent,
Renn and Castle, Employer's Exhibits 6, 7, 10, 11, 14-16, did not. Employer's
Brief at 17-18. Employer further contends that the administratively law judge:
erred in finding that Drs. Sargent, Renn and Castle ruled out the possibility of
a dust-induced impairment; erred in rejecting the opinions of Drs. Renn and Castle
because they concluded that the miner's respiratory impairment was not reversible
when there was no basis for such a determination; and erred in discrediting the
opinions of Drs. Renn and Castle because they were impermissibly based on the
premise that pneumoconiosis was not progressive. In addition, employer argues that
the physicians did not reach the conclusions the administrative law judge
attributed to them. Employer's Brief at 22. Finally, employer asserts that the
administrative law judge failed to address fully the relative qualifications of the
physicians in a manner consistent with the holdings of the Fourth Circuit in see
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998) and
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir.
1997), when he accorded greater weight to the opinion of Dr. Robinette based on his
status as claimant's treating physician.
When this case was previously before the Board, the Board vacated the
administrative law judge's determination that the medical opinion evidence
supported a finding of the existence of pneumoconiosis, holding that the
administrative law judge's decision to accord determinative weight to the opinions
of Drs. Barongan and Robinette, without addressing all of the factors bearing on
the relative merits of the opinions, contravened both the Administrative Procedure
Act (the 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), which requires
that all decisions state their bases and the decisions of the Fourth Circuit in
Hicks, supra, and Akers, supra. The Board instructed
the administrative law judge to assess "the qualifications of the respective
physicians, the explanation of their medical opinions, the documentation underlying
their medical judgements, and the sophistication and bases of their diagnoses."
Sproles, slip op. at 3; see Akers, supra; see also
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 951, 21 BLR 2-23, 2-31-32
(4th Cir. 1997).
On remand, the administrative law judge concluded that Dr. Robinette's opinion
of pneumoconiosis was based on chest x-ray interpretations, objective studies and
physical examinations, and that the opinion was entitled to the most weight because
it was based on the most extensive medical data, multiple examinations and a
thorough review of the miner's other medical records, and because Dr. Robinette was
board-certified in internal medicine with a subspeciality in pulmonary disease.
Additionally, the administrative law judge found that Dr. Robinette's opinion was
buttressed by the medical treatment notes of Dr. Barongan, who was the miner's
treating physician during times of hospitalization, and the opinions of Drs. Nash
and Paranthaman. Finally, the administrative law judge further found that the
contrary opinions of Drs. Renn, Castle and Sargent were "unpersuasive," as they
were not as well-reasoned as the opinion of Dr. Robinette, or the opinions which
supported Dr. Robinette's opinions. Decision and Order at 14.
Contrary to employer's assertions, the administrative law judge permissibly
accorded the greatest weight to Dr. Robinette's opinion because Dr. Robinette's
opinion was best supported by the underlying documentation and, therefore, provided
a "more complete assessment of the miner's condition." Decision and Order on
Remand at 16; see Hicks, supra; Akers, supra; Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989); Peskie v. United States
Steel Corp., 8 BLR 1-126 (1985); Lucostic v. United States Steel Corp.,
8 BLR 1-46 (1985). Further, while recognizing that Dr. Robinette was not as
highly-qualified as those physicians rendering contrary opinions, the
administrative law judge nonetheless found that his opinion was entitled to greater
weight, based on the length of time he treated the miner, as well as the fact that
he provided the most complete analysis of the miner's conditions. This was
rational. See Hicks, supra; Akers, supra. Contrary
to employer's assertion, the administrative law judge did not accord the greatest
weight to the opinion of Dr. Robinette merely because he was the miner's treating
physician, but because he provided a well-documented, well-reasoned medical
opinion. This was proper. Decision and Order on 15-16; see Clark,
supra; Peskie, supra; Lucostic, supra.
We conclude, therefore, that the administrative law judge has complied with
the Board's remand instructions and has provided sufficient basis for according Dr.
Robinette's opinion dispositive weight in this case. See Hicks,
supra; Akers, supra. We reject employer's assertions that the
opinions of Drs. Sargent, Renn and Castle are more credible, as these assertions
are, in the context of the administrative law judge's affirmable consideration of
Dr. Robinette's opinion, tantamount to a request that the Board reweigh the
evidence, a function outside its scope of review, see Anderson v. Valley
Camp of Utah, Inc., 12 BLR 1-111 (1989). Accordingly, we affirm the
administrative law judge's determination that the medical opinion evidence is
supportive of a finding of the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(4).
Employer contends, however, that the administrative law judge failed to weigh
adequately the negative x-ray evidence together with the medical opinion evidence
pursuant to Compton, supra. On remand, the administrative law judge
found that in light of the discrepancies in interpreting the chest x-rays, the
negative x-ray evidence did not preclude a finding of legal pneumoconiosis in this
case. Decision and Order on Remand at 5. Thus, the administrative law judge
concluded that "the preponderance of the probative medical opinion evidence
supports a finding that the miner suffers from coal workers' pneumoconiosis under
20 C.F.R. §718.202(a)(4) and this finding is not altered by the preponderantly
negative chest x-ray evidence...." Decision and Order on Remand at 16. This was
rational. See Compton, supra.
Employer next asserts that the administrative law judge erred in finding that
the miner's death was due to pneumoconiosis. Specifically, employer contends that
the administrative law judge erred in according greatest weight to the opinion of
Dr. Robinette that pneumoconiosis hastened the miner's death because it compromised
his respiratory system, Director's Exhibit 37, as Dr. Robinette failed to address
the effect of the miner's lengthy smoking history on the miner's death.
In finding that claimant established that the miner's death was due to
pneumoconiosis, the administrative law judge found that Dr. Robinette's opinion,
that the miner's death was hastened by pneumoconiosis, was best supported by the
underlying documentation of record. Decision and Order at 17; see Clark,
supra; Peskie, supra; Lucostic, supra. Further,
contrary to employer's assertion, inasmuch as claimant's burden at Section
718.205(c) is to provide medical evidence sufficient to demonstrate that
pneumoconiosis hastened the miner's death, see Shuff, supra, the
failure of Dr. Robinette to address specifically the role that smoking may have
played in the miner's death does not undermine the credibility of his determination
that pneumoconiosis hastened the miner's death. The administrative law judge found
that the opinions of Drs. Renn and Castle, that the miner's death was not related
to pneumoconiosis, Employer's Exhibits 15, 16, were not entitled to much weight
because they failed to diagnose the existence of pneumoconiosis and therefore
failed to present a complete picture of the miner's health. This was rational.
Decision and Order on Remand at 17; see Stark v. Director, OWCP, 9 BLR 1-36
(1989). The administrative law judge, therefore, properly found that the miner's
death was due to pneumoconiosis. See 20 C.F.R. §718.205(c)(5);
Shuff, supra.
Accordingly, the administrative law judge's Decision And Order Awarding
Survivor's Benefits On Remand and the Decision And Order Awarding Survivor's
Benefits On Reconsideration are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
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) Claimant, Mary Hazel Sproles, is the widow of the miner,
James Sproles, who died on November 11, 1994. The death certificate lists the
miner's cause of death as acute respiratory failure due to chronic obstructive lung
disease. Atherosclerotic heart disease and cor pulmonale are listed as other
significant conditions present at the time of death. Director's Exhibit 6. The
miner was awarded benefits on a claim filed on July 24, 1989, by Administrative Law
Judge Daniel J. Roketenetz. This award was affirmed by both the Board, Sproles
v. Bullion Hollow Coal Co., BRB No. 95-1053 BLA (May 24, 1996)(unpub.), and the
United States Court of Appeals for the Fourth Circuit, Bullion Hollow Coal Co.
v. Sproles, BRB No. 96-2433 BLA (4th Cir., June 6, 1997). Because the award
of benefits on the miner's claim was for a claim filed subsequent to January 1,
1982, claimant was not eligible for derivative benefits based on the miner's award.
See 30 U.S.C. §901(a); 20 C.F.R. §725.212; Smith v. Camco
Mining Inc., 13 BLR 1-17, 1-18-22 (1989); cf. Neeley v. Director,
OWCP, 11 BLR 1-85 (1988).
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NOTE: This is an UNPUBLISHED BLA Document.
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