BRB No. 02-0268 BLA
PATRICIA HOUSLEY )
(Widow of ROBERT W. HOUSLEY) )
)
Claimant-Petitioner )
)
v. )
)
LIMOSINE COAL COMPANY, ) DATE ISSUED:08/21/2002
INCORPORATED #3 )
)
and )
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EMPLOYERS INSURANCE OF WAUSAU )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Ronald C. Cox (Johnnie L. Turner, P.S.C.), Harlan, Kentucky, for
claimant.
Bonnie Hoskins (Stoll, Keenon & Park, LLP), Lexington, Kentucky, for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals the Decision and Order
(00-BLA-0977) of Administrative Law Judge Thomas F. Phalen, Jr., denying 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).[2] The administrative law judge credited
the miner with at least twenty-two years of coal mine employment and adjudicated
this survivor's claim pursuant to the regulations contained in 20 C.F.R. Part 718.
The administrative law judge found the evidence sufficient to establish the
existence of pneumoconiosis arising out of coal mine employment pursuant to 20
C.F.R. §§718.202(a) and 718.203(b). However, the administrative law
judge found the evidence insufficient to establish that the miner's death was due
to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the
administrative law judge denied benefits.
On appeal, claimant challenges the administrative law judge's finding that the
evidence is insufficient to establish that the miner's death was due to
pneumoconiosis at 20 C.F.R. §718.205(c). Employer responds, urging affirmance
of the administrative law judge's denial of benefits. The Director, Office of
Workers' Compensation Programs, has declined to participate in this appeal.[3]
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).
Benefits are payable on a survivor's claim filed on or after January 1, 1982
only when the miner's death was due to pneumoconiosis.[4] See 20 C.F.R. §§718.1, 718.205(c); Neeley v.
Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39
(1988). However, before any finding of entitlement can be made in a survivor's
claim, a claimant must establish the existence of pneumoconiosis. See 20
C.F.R. §718.202(a)(1)-(4); Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993). A claimant must also establish that the miner's pneumoconiosis arose
out of coal mine employment. See 20 C.F.R. §718.203; Boyd,
supra.
Claimant contends that the administrative law judge erred in finding the
evidence insufficient to establish that the miner's death was due to pneumoconiosis
at 20 C.F.R. §718.205(c). We disagree. The administrative law judge stated
that "Drs. Dalloul, Dahhan, Castle, and Crouch rendered opinions regarding the
cause of [the miner's] death." Decision and Order at 18. Whereas Dr. Dalloul
opined that pneumoconiosis contributed to the miner's death, Director's Exhibits
22, 39, 45, Drs. Castle, Crouch and Dahhan opined that pneumoconiosis did not
contribute to the miner's death, Director's Exhibits 23, 43-45.[5] The administrative law judge concluded,
"[v]iewing all of the evidence together, I find that the opinions of the four most
qualified physicians regarding the cause of the miner's death is (sic) in
equipoise, and that therefore, [c]laimant has failed to establish, by a
preponderance of the evidence, that [the miner's] death was due to pneumoconiosis."
Decision and Order at 19.
On appeal, claimant only asserts that the administrative law judge should have
given dispositive weight to the opinion of Dr. Dalloul based upon Dr. Dalloul's
status as the miner's treating physician. This case arises within the jurisdiction
of the United States Court of Appeals for the Sixth Circuit. While the Sixth
Circuit has held that the opinions of treating physicians should be given their
proper deference, see Tussey v. Island Creek Coal Co., 982 F.2d 1036,
17 BLR 2-16 (6th Cir. 1993), the court has also held that there is no requirement
that administrative law judges give conclusive weight to the opinions of treating
physicians, Wolf Creek Collieries v. Director, OWCP [Stephens],
F.3d , 2002 WL 1769283 (6th Cir. Aug. 2, 2002); Griffith v. Director,
OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995). In Stephens,
employer argued that the administrative law judge's opinion reflected an "automatic
preference" for the opinion of the treating physician. In rejecting employer's
argument, the Sixth Circuit declared that a "treating physician presumption" does
not exist, and that it never mandated that controlling weight be accorded to the
opinions of treating physicians automatically. Rather, the Sixth Circuit noted
that it merely held, in Tussey, that a treating physician's opinion should
be given its proper deference. Further, the Sixth Circuit observed that its post-Tussey holdings make it clear that there is no requirement that the opinions
of treating physicians be given controlling or conclusive weight.
In the instant case, the administrative law judge noted that "Dr...Dalloul,
who is [B]oard certified in internal medicine and cardiovascular disease, was [the
miner's] treating physician." Decision and Order at 10. The administrative law
judge also noted that "[t]he record contains many office notes related to Dr.
Dalloul's treatment of [the miner]." Id. The administrative law judge
therefore stated, "I find that Dr. Dalloul's opinion is well reasoned and
documented and entitled to great weight considering his qualifications and
his familiarity with [the miner's] conditions." Id. at 18 (emphasis added).
However, the administrative law judge additionally found that the opinions of
Dr. Castle, Crouch and Dahhan are well reasoned and documented, and thus, he found
that they are also entitled to weight.[6]
Id. at 18-19. Based upon the administrative law judge's weighing of the
opinions of Drs. Castle, Crouch, Dahhan and Dalloul, the administrative law judge
determined that the doctors' opinions are in equipoise. The Board cannot reweigh
the evidence or substitute its inferences for those of the administrative law
judge. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989);
Fagg v. Amax Coal Co., 12 BLR 1-77 (1988); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988). Thus, we reject claimant's assertion that the
administrative law judge should have given dispositive weight to the opinion of Dr.
Dalloul based upon Dr. Dalloul's status as the miner's treating physician.[7] Further, since it is supported by substantial
evidence, we affirm the administrative law judge's finding that the evidence is
insufficient to establish that the miner's death was due to pneumoconiosis at 20
C.F.R. §718.205(c). See Director, OWCP v. Greenwich Collieries
[Ondecko], 512 U.S. 267, 18 BLR 2A-1 (1994), aff'g Greenwich
Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993); see
also Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17 BLR 2-135 (6th Cir.
1993).
In view of our affirmance of the administrative law judge's finding that the
evidence is insufficient to establish that the miner's death was due to
pneumoconiosis at 20 C.F.R. §718.205(c), an essential element of entitlement
under 20 C.F.R. Part 718 in a survivor's claim, see Trumbo, supra;
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP,
9 BLR 1-1 (1986)(en banc), we affirm the administrative law judge's denial
of benefits.
Accordingly, the administrative law judge's Decision and Order 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 widow of the miner, Robert W. Housley, who died
on October 27, 1997. Director's Exhibits 1, 8. The miner filed a claim on
February 22, 1993. Director's Exhibit 55. This claim was denied by the Department
of Labor on August 4, 1993. Id. The record does not indicate that the miner
pursued this claim any further. Claimant filed a survivor's claim in April 1999.
Director's Exhibit 1.
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2)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. All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
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3)Since the administrative law judge's length of coal mine
employment finding and his findings at 20 C.F.R. §§718.202(a) and
718.203(b) are not challenged on appeal, we affirm these findings. See Skrack
v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4)Section 718.205(c) provides, in pertinent part, that death will
be considered to be due to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that pneumoconiosis was
the cause of the miner's death, or
(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or
(3) Where the presumption set forth at §718.304 is applicable.
...
(5) Pneumoconiosis is a "substantially contributing cause" of a miner's death
if it hastens the miner's death.
20 C.F.R. §718.205(c).
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5)The record also contains a death certificate signed by Dr. Bari
and the opinion of Dr. Younes that pneumoconiosis did not contribute to the miner's
death. Director's Exhibits 8, 46. The administrative law judge did not accord
weight to this evidence. In the death certificate, Dr. Bari indicated that
respiratory failure and extensive stage small cell lung cancer were the causes of
the miner's death. Director's Exhibit 8. The administrative law judge, however,
stated that "it is unclear who completed the [death certificate] form as the
doctor's signature is illegible." Decision and Order at 10. Although employer
refers to Dr. Bari's examination of the miner prior to the miner's death, employer
does not assert that Dr. Bari signed the death certificate. Employer's Response
Brief at 2. Since the death certificate supports the administrative law judge's
finding that pneumoconiosis did not contribute to the miner's death, we hold that
any error by the administrative law judge in failing to consider the death
certificate at 20 C.F.R. §718.205(c) is harmless. See Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984). With regard to Dr. Younes's opinion, the
administrative law judge noted that "[t]he record contains a single sheet of paper
with a typed question asking for someone's opinion regarding whether or not [the
miner's] CWP played a significant or substantial role or hastened his death in any
way." Decision and Order at 11, 12. The administrative law judge stated that
"[t]here are no documents accompanying Dr. Younes'[s] opinion, nor does he note
what information he reviewed in reaching his conclusion." Decision and Order at
12. Thus, the administrative law judge properly discredited Dr. Younes's opinion
because it is not reasoned and documented. See Clark v. Karst-Robbins
Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island Creek Coal
Co., 10 BLR 1-19 (1987); Lucostic v. United States Steel Corp., 8 BLR
1-46 (1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (1984).
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6)Drs. Castle and Dahhan are Board-certified in internal medicine
and pulmonary disease, Director's Exhibits 23, 44, and Dr. Crouch is Board-certified in anatomical pathology, Director's Exhibit 43.
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7)The revised regulation at 20 C.F.R. §718.104(d)(5)
provides that "[i]n appropriate cases, the relationship between the miner and his
treating physician may constitute substantial evidence in support of the
adjudication officer's decision to give that physician's opinion controlling
weight, provided that the weight given to the opinion of a miner's treating
physician shall also be based on the credibility of the physician's opinion in
light of its reasoning and documentation, other relevant evidence and the record
as a whole." 20 C.F.R. §718.104(d)(5) (emphasis added). The revised
regulation at 20 C.F.R. §718.104(d)(5) does not apply to the instant claim
because it was filed before January 19, 2001.
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NOTE: This is an UNPUBLISHED BLA Document.
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