BRB No. 02-0154 BLA
MARVIN PROFFITT )
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Claimant-Respondent )
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v. )
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FALCON COAL COMPANY ) DATE ISSUED:08/28/2002
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Employer-Petitioner )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas M. Burke, Administrative Law
Judge, United States Department of Labor.
W. Barry Lewis (Lewis & Lewis), Hazard, Kentucky, for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (01-BLA-0170) of Administrative Law
Judge Thomas M. Burke awarding 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]
Based on the filing date of January 14, 2000, the administrative law judge
adjudicated this claim pursuant to 20 C.F.R. Part 718. The administrative law
judge credited claimant with eighteen years of coal mine employment and found
employer to be the responsible operator. On the merits, the administrative law
judge found the evidence of record sufficient to establish the existence of
pneumoconiosis arising out of coal mine employment at 20 C.F.R.
§§718.202(a)(1)-(4), 718.203(b) and sufficient to demonstrate the
presence of a totally disabling respiratory impairment due to pneumoconiosis
pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, benefits were awarded.
On appeal, employer challenges the findings of the administrative law judge
at Section 718.202 (a)(1) and at Section 718.204(c). Claimant has not responded
to this appeal. The Director, Office of Workers' Compensation Programs (the
Director), responds only to the issue of the application of the new regulation at
Section 718.204(c).[2]
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).
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 first asserts that the administrative law judge erred in finding that
the x-ray evidence established the existence of pneumoconiosis. Specifically,
employer contends that the administrative law judge erred in rejecting Dr.
Branscomb's finding that he did not believe the x-ray showed the existence of
pneumoconiosis despite his positive reading, not because of technical flaws in the
x-ray, but because the doctor fully explained why the abnormalities seen on x-ray
were more reflective of claimant's morbid obesity, not pneumoconiosis. Employer
also contends that the administrative law judge erred in crediting the most recent
positive x-ray solely due to its recency as it was taken only four months after the
second most recent x-ray which was interpreted as negative. We agree.
The administrative law judge noted that there were nineteen readings of seven
different x-rays to consider and that seven of these readings were interpreted as
positive while twelve were interpreted negative. The administrative law judge
accorded less weight to Dr. Branscomb's positive x-ray interpretation because Dr.
Branscomb later indicated on deposition that this interpretation was not consistent
with pneumoconiosis and the changes were due to technical factors and because Dr.
Branscomb was not a B-reader at the time he interpreted the x-ray.
In his report, Dr. Branscomb refers to the charges seen on x-ray as due to
"technical factors." As employer contends, however, in his deposition Dr.
Branscomb states that while he originally interpreted the February 2, 2000 x-ray
as positive for pneumoconiosis, he later determined, after reviewing the evidence
of claimant's morbid obesity, that the results on x-ray reflected claimant's morbid
obesity, not pneumoconiosis, i.e., "[t]his usual finding in a person of that
level of obesity is to make the film look more like a positive film," Employer's
Exhibit 1, Deposition at 26, and that the x-ray did not support a finding of
pneumoconiosis, "[t]he distribution of the changes which I described was not
consistent with pneumoconiosis in its usual presentation and the distribution and
character of the changes didn't fit." Employer's Exhibit 1, Branscomb Deposition
at 26.[3] Thus, the administrative law judge's
rejection of Dr. Branscomb's finding of no pneumoconiosis on x-ray merely because
of "technical problems" with the x-ray does not fully explain Dr. Branscomb's
finding on x-ray. We must, therefore, vacate the administrative law judge's
finding regarding Dr. Branscomb's x-ray and remand the case for him to reconsider
Dr. Branscomb's testimony regarding the x-ray in question. See Cranor v. Peabody
Coal Co., 21 BLR 1-1, 1-5 (1999); Melnick v. Consolidation Coal Co., 16
BLR 1-31, 1-37 (1991)(en banc); Valazak v. Bethlehem Mines Corp., 6
BLR 1-282, 1-283-4 (1983). On remand, of course, the administrative law judge must
consider Dr. Branscomb's qualifications along with the qualifications of the other
x-ray readers in assessing the credibility of the x-ray readings. 20 C.F.R.
§718.202(a)(1); see Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61
(4th Cir. 1992); see also Staton v. Norfolk & Western Ry. Co., 65 F.3d 55,
19 BLR 2-271 (6th Cir. 1995); Woodward v. Director, OWCP, 991 F.2d 314, 17
BLR 2-77 (6th Cir. 1993).
Turning to the remaining six positive readings, the administrative law judge
found it significant that all were by different B-readers, three of whom were also
Board-certified radiologists, especially since the most recent x-ray was
interpreted as positive for pneumoconiosis by a B-reader. He found that the twelve
negative interpretations represented readings by only three different B-readers,
who each reread four of claimant's x-rays. As employer contends, however, the
administrative law judge did not consider that this x-ray was taken only four
months after the next most recent x-ray which was interpreted as positive by one
Board-certified B-reader, but negative by three Board-certified B-readers.[4] On remand, while the administrative law judge
may properly credit the most recent x-ray of record, see Adkins,
supra; in this case, he must provide more explanation and discussion for why
he finds that x-ray more credible, where the x-rays are only separated by a short
period of time. See 20 C.F.R. §718.202(a)(1); Adkins,
supra; see also Staton, supra; Woodward, supra;
Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
Taylor v. Director, OWCP, 9 BLR 1-22 (1986).
Further, because the record in this case indicates that claimant's last coal
mine employment took place in Virginia, the law of the United States Court of
Appeals for the Fourth Circuit, within whose jurisdiction this case arises, must
be applied in deciding this case. See Shupe v. Director, OWCP, 12 BLR 1-200,
1-202 (1989). The Fourth Circuit has held that, in determining whether the
existence of pneumoconiosis is established at Section 718.202(a), the
administrative law judge must weigh all relevant evidence together, rather than
merely within the discrete subsections of Section 718.202(a). Island Creek Coal
Co. v. Compton, 211 F.3d 203, 22 BLR 2-162, 2-170 (4th Cir. 2000);
compare Cornett v. Benham Coal, Inc., 227 F.3d 569, 22 BLR 2-107, 2-119 (6th Cir. 2000); Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985).
Because the administrative law judge has failed to do so in this case, his finding
of pneumoconiosis must be vacated and the case must be remanded for consideration
pursuant to Compton, supra.
Employer next contends that the administrative law judge erred in finding
disability causation established at Section 718.204(c) as: the evidence of record
shows that the cause of claimant's disability was cigarette smoking, heart disease,
and obesity which the administrative law judge failed to address; the evidence is
insufficient to prove that pneumoconiosis contributed to claimant's disability; and
the administrative law judge erred in according greater weight to the opinions of
Drs. Forehand and Rasmussen over the better reasoned opinions of Drs. Fino,
Branscomb, and Castle. Additionally, employer contends that the administrative law
judge erred in applying the newly amended regulation at Section 718.204(c) to this
claim in which the date of claimant's last exposure to coal dust was prior to the
effective date of the new regulations and the claim was filed prior to the
effective date of the new regulations.
Contrary to employer's contention the administrative law judge properly
considered this claim under the new regulation at Section 718.204(c). 20 C.F.R.
§718.2. In finding that the opinions of Drs. Forehand and Rasmussen
established that claimant's pneumoconiosis constituted "a material adverse effect
[on claimant's respiratory condition] as required by the amended regulations,"
Decision and Order at 13, the administrative law judge credited them over the
opinions of Drs. Fino, Branscomb, and Castle because he found Dr. Rasmussen's
credentials to be most impressive of record based on his extensive "expertise in
the specific area of black lung disease" inasmuch as he "participated in several
coal mine health and research advisory committees, including the one which
developed the disability standards for the Federal Black Lung program," and
"authored many articles relevant to the area of black lung disease and several
which are specifically related to the effects of smoking and occupational
exposure." Decision and Order at 13; Claimant's Exhibit 2; Director's Exhibit 8.
While the administrative law judge could accord greater weight to the opinion of
Dr. Rasmussen based on his superior credentials, see 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); see also Worhach
v. Director, OWCP, 17 BLR 1-105 (1993), the administrative law judge, as
employer contends, failed to explain sufficiently why he found Dr. Forehand's
opinion more credible that the opinions of Drs. Castle, Fino, and Branscomb
inasmuch as the latter physicians provided better explained opinions for their
conclusion that smoking was the cause of claimant's respiratory disability.
See Hicks, supra; Akers, supra; Maypray v. Island
Creek Coal Co., 7 BLR 1-683, 1-686 (1985); Clark, supra.
Additionally, the administrative law judge found that the smoking history
reported by claimant to his examining physicians ranged between 8 and 10 pack years
which is consistent with his testimony that he started smoking at age 25 (which
would be in 1972, since claimant was born in 1948) and smoked about a half pack of
cigarettes per day until his first heart attack in 1988 when he quit smoking.
Decision and Order at 13. The administrative law judge, therefore, rejected the
opinions of Drs. Fino and Castle, because their opinions that claimant's disability
was due to smoking were based on an assumption that claimant was a heavier smoker
than was established by the record. Decision and Order at 13. Employer contends,
however, that claimant gave conflicting smoking histories to the examining
physicians, i.e., anywhere from 7.5 pack years to a maximum of 52 pack years
from 1962 to 1988, which the administrative law judge must resolve in determining
the credibility of the opinions on disability causation. Specifically, employer
contends that claimant reported to Dr. Fino that he had a 10 to 20 pack year
history of cigarette smoking from 1962 to 1982; he reported to Dr. Forehand that
he had a 15 to 30 pack year history from 1973 to 1988; and he reported to Dr.
Rasmussen that he had a 10 to 20 year smoking history from 1968 to 1986.
Employer's Brief at 21.
A review of the medical opinions shows that claimant reported a 10 to 30 year
smoking history to the various physicians. Claimant reported, however, smoking
only half a pack daily to all the physicians, which would appear to support the
administrative law judge's finding of an 8 to 10 pack year history. See
Employer's Exhibits 1, 6; Director's Exhibits 37, 8; Claimant's Exhibit 1. A
review of the record shows that Dr. Castle stated that the results of objective
testing done on claimant would indicate that he had a far greater smoking history
than he had reported. Employer's Exhibit 6 at 8. Accordingly, inasmuch as we are
remanding this case for reconsideration of the evidence on the issue of
pneumoconiosis, the administrative law judge should also reconsider the medical
opinion evidence on disability causation and the evidence regarding claimant's
smoking history.[5]
Likewise, because the administrative law judge erred in rejecting Dr.
Branscomb's finding that claimant's x-ray did not show evidence of pneumoconiosis
without considering his commentary on the x-ray, we must also vacate the
administrative law judge's accordance of less weight to Dr. Branscomb's disability
causation opinion for that reason. Additionally, as employer contends, the fact
that Dr. Branscomb did not personally examine claimant, does not automatically
render his opinion less credible than the other opinions of record. See
Hicks, supra; Akers, supra. The administrative law judge
must, therefore, reconsider the evidence regarding disability causation, if
reached.
Accordingly, the Decision and Order of the administrative law judge awarding
benefits is affirmed in part, vacated in part, and the case is remanded for further
proceedings consistent with this opinion.
SO ORDERED.
NANCY S. DOLDER, 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 20
C.F.R. Parts 718, 725 and 726 (2001). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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2) We affirm the findings of the administrative law judge on the length of coal mine employment,
on the designation of employer as the responsible operator, at 20 C.F.R. §§718.203(b), and
718.204(c)(4)(2000), now cited as 718.204(b)(2)(iv), and on onset date, as unchallenged on appeal. See Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983).
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3) Dr. Branscomb classified the February 2, 2000 x-ray as 2/1 s, p, but also made the following
comments, "There is a very fine interstitial change more intense near the pleura and more in the lower lobes. The process
looks much more like UIP or sarcoid than CWP." Employer's Exhibit 1.
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4) Moreover, the x-ray taken December 12, 2000, one month before the January 13, 2001, x-ray
was also read as positive by one Board-certified B-reader, but negative by three Board-certified B-readers. See
Decision and Order at 4.
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5) There is no evidence in the record which appears to support employer's assertion that any of
the physicians reported a two pack a day smoking history for up to 40 years. Employer's Brief at 23; see
Employer's Exhibits 1, 6; Director's Exhibits 8, 37; Claimant's Exhibit 1. Employer may be reading the notation of "1/2"
on the physicians' reports as one to two years instead of one-half. See Employer's Exhibits 1, 6; Director's Exhibits
8, 37; Claimant's Exhibit 1.
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NOTE: This is an UNPUBLISHED BLA Document.
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