BRB No. 02-0197 BLA
WALTER ELKINS
Claimant-Petitioner
v.
EASTERN ASSOCIATED COAL
CORPORATION
Employer/Carrier-
Respondents
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
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) DATE
ISSUED:08/22/2002
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) DECISION AND ORDER
Appeal of the Decision and Order on Remand of Fletcher E. Campbell,
Administrative Law Judge, United States Department of Labor.
Roger D. Forman (Forman & Crane), Charleston, West Virginia, for
claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY, and
HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (98-BLA-1251) of
Administrative Law Judge Fletcher E. Campbell with respect to 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] This is the fourth time that this case has
been before the Board.[2] In its most recent
Decision and Order, the Board addressed employer's appeal of an award of
benefits under the regulations set forth in 20 C.F.R. Part 718.[3] The Board held that the administrative law
judge did not err in considering all of the evidence of record in determining
whether claimant had established a change in conditions or mistake of fact
pursuant to 20 C.F.R. §725.309(d) (2000). The Board also affirmed the
administrative law judge's determination that Dr. Rasmussen's opinion regarding
the existence of pneumoconiosis and total disability due to pneumoconiosis was
reasoned and documented.
The Board vacated the award of benefits, however, and remanded the case to
the administrative law judge for consideration of whether two of Dr. Rasmussen's
reports, dated September 20, 1995 and December 10, 1996, were part of the
official record. In addition, the Board vacated the administrative law judge's
determination that the opinions of Drs. Fino, Zaldivar, and Tuteur were entitled
to little weight pursuant to 20 C.F.R. §§718.202(a)(4) and 718.204(b)
(2000). Finally, the Board instructed the administrative law judge to
reconsider the evidence pertaining to the existence of pneumoconiosis in
accordance with the decision 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), in which the court held that an administrative law judge
must consider whether the evidence as a whole is sufficient to establish the
existence of pneumoconiosis.[4] Elkins v.
Eastern Associated Coal Corp., BRB No. 00-0737 BLA (June 26, 2001)(unpub.).
On remand, the administrative law judge considered the opinions in which
Drs. Fino, Tuteur, and Zaldivar stated that claimant does not have
pneumoconiosis and the opinion in which Dr. Rasmussen diagnosed coal workers'
pneumoconiosis and attributed claimant's obstructive impairment to cigarette
smoking and coal dust exposure. The administrative law judge determined that
the existence of pneumoconiosis was not established by a preponderance of
medical opinion evidence. The administrative law judge found, therefore, that
claimant did not establish the existence of pneumoconiosis pursuant to Section
718.202(a).[5] Accordingly, benefits were
denied. Claimant argues in the present appeal that the administrative law judge
should have discredited the opinions of Drs. Fino, Zaldivar, and Tuteur on the
ground that these physicians relied upon assumptions that conflict with the Act
and the regulations. Claimant further asserts that Dr. Rasmussen's opinion is
sufficient to establish that claimant has pneumoconiosis and is totally disabled
by the disease. Employer has responded and urges affirmance of the denial of
benefits. The Director, Office of Workers' Compensation Programs, has not filed
a brief in response to claimant's appeal.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance 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
(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).
In considering the medical opinions of record on remand pursuant to Section
718.202(a)(4), the administrative law judge stated that:
[In a prior Decision and Order], I found that the opinions of Drs.
Zaldivar, Tuteur, and Fino were fatally infected by assumptions
disfavored by relevant legal and medical authority. However, I have
been reversed on this point and know of no other basis relating to the
reasoning or documentation of the physicians' opinions to credit Dr.
Rasmussen over the other three.
Unfortunately, the rules under which I am required to evaluate
evidence sometimes require me to ignore things that I know to be true.
For example, some if not all of the physicians who rendered opinions
in this case are in effect professional witnesses for claimants or
employers. Even though I know this to be true to a moral certainty,
because the record does not show it, I cannot rely on it. In
addition, I have no basis on which to conclude that Dr. Rasmussen is
more or less biased for reasons of party or class affiliation than are
the other opinion physicians.
Decision and Order on Remand at 3 (citations and footnote omitted). Based upon
this reasoning, the administrative law judge concluded that the medical opinion
evidence does not support a finding of pneumoconiosis. Id. at 4.
Claimant asserts that the administrative law judge was correct in initially
finding that the opinions of Drs. Fino, Zaldivar, and Tuteur were contrary to
the Act, inasmuch as they relied upon assumptions that refute the premises upon
which the legal definition of pneumoconiosis is based.[6] See 20 C.F.R. §718.201(a)(2). Specifically, claimant
asserts, incorrectly, that these physicians maintain that pneumoconiosis causes
restriction, not obstruction; that unless there is x-ray evidence of coal dust
deposition, pneumoconiosis does not cause a reduction in diffusing capacity
consistent with an obstructive impairment; that the effects of pneumoconiosis
are not reversible with the use of a bronchodilator; and that pneumoconiosis
does not cause clinically significant emphysema.
The Board addressed the propriety of the administrative law judge's
determination that Drs. Fino, Zaldivar, and Tuteur expressed conclusions that
were at odds with the Act in its prior Decision and Order. The Board held that
inasmuch as the physicians did not state that pneumoconiosis cannot cause an
obstructive impairment and did not assert that simple pneumoconiosis cannot be
totally disabling, their opinions could not be construed as "in conflict with
the spirit of the Act." Elkins v. Eastern Associated Coal Corp., BRB No.
00-0737 BLA (June 26, 2001)(unpub.), slip op. at 9-11, citing Stiltner v.
Island Creek Coal Co., 86 F.3d 377, 20 BLR 2-246 (4th Cir. 1996); Warth
v. Southern Ohio Coal Co., 60 F.3d 173, 19 BLR 2-265 (4th Cir.1995).
Claimant has not advanced any new arguments regarding the Board's disposition of
this issue nor has any new case law developed which requires the Board to alter
its previous holding. Thus, the Board's holding constitutes the law of the case
and will not be disturbed. See Gillen v. Peabody Coal Co., 16 BLR 1-22
(1991); Brinkley v. Peabody Coal Co., 14 BLR 1-147 (1990); Bridges v.
Director, OWCP, 6 BLR 1-988 (1984).
Furthermore, claimant does not challenge the administrative law judge's
finding that he could not resolve the conflict between the medical opinions of
record by referring to the bias of the physicians who submitted reports at
employer's request nor does claimant allege error with respect to the
administrative law judge's finding that Dr. Rasmussen's diagnosis of
pneumoconiosis is not entitled to dispositive weight in light of the negative x-ray evidence of record and the superior qualifications possessed by Drs. Fino,
Zaldivar, and Tuteur.[7] Decision and Order on
Remand at 3 n. 3, 4 n. 4. We affirm, therefore, the administrative law judge's
determination that the medical opinion evidence, and the evidence of record as a
whole, is insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a). See Compton, supra. In light of the
administrative law judge's finding that claimant did not prove that he is
suffering from pneumoconiosis, an essential element of entitlement, we must also
affirm the denial of benefits.[8] See
Trent, supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)Claimant is the miner, Walter Elkins.
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2)The procedural history of this case is set forth in detail
in Elkins v. Eastern Associated Coal Corp., BRB No. 00-0737 BLA (June 26,
2001)(unpub.), slip op. at 2-4.
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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). Unless otherwise
noted, all citations are to the amended regulations.
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4)This case arises within the jurisdiction of the United
States Court of Appeals for the Fourth Circuit, as claimant's coal mine
employment occurred in West Virginia. Director's Exhibits 2, 29; see Shupe
v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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5)In his prior Decision and Order, the administrative law
judge found that pneumoconiosis was not established under 20 C.F.R.
§718.202(a)(1)-(3). This finding was not challenged in employer's appeal
to the Board.
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6)20 C.F.R. §718.201(a)(2) provides that:
"Legal pneumoconiosis" includes any chronic lung disease or impairment
and its sequelae arising out of coal mine employment. This definition
includes, but is not limited to, any chronic restrictive or
obstructive pulmonary disease arising out of coal mine
employment.
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7)Drs. Fino, Zaldivar, and Tuteur are Board-certified in
Internal Medicine and Pulmonary Disease. Director's Exhibits 29, 35, 55;
Employer's Exhibits 2, 5. Dr. Rasmussen is Board-certified in Internal
Medicine. Director's Exhibits 12, 32.
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8)Employer indicates that it continues to assert that the
administrative law judge erred in considering claimant's second request for
modification. Employer also states that the administrative law judge did not
comply with the Board's remand instructions, as he did not consider whether Dr.
Rasmussen's 1995 and 1996 reports were admissible. In light of our affirmance
of the denial of benefits, however, we need not reach these issues since error,
if any, by the administrative law judge is harmless. 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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