BRB No. 97-0899 BLA
IRA E. HUNTER )
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Claimant-Respondent )
)
v. )
)
WESTMORELAND COAL COMPANY ) DATE ISSUED:08/31/1999
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Employer-Petitioner )
)
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.
Roger D. Forman (Forman & Crane, L.C.), Charleston, West Virginia, for
for claimant.
Ann B. Rembrandt (Jackson & Kelly), Charleston, West Virginia, for
Westmoreland Coal Company.
J. Matthew McCracken (Henry L. Solano, Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Richard A. Seid and 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: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Westmoreland Coal Company (Westmoreland) appeals the Decision and Order (95-BLA-0719) 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). The instant case involves a 1994 duplicate claim.[1] Because the administrative law judge found that the newly submitted
x-ray evidence was sufficient to establish the existence of complicated
pneumoconiosis, he found that claimant had established a material change in
conditions pursuant to 20 C.F.R. §725.309. The administrative law judge,
therefore, considered claimant's 1994 claim on the merits. The administrative law
judge found that the x-ray evidence was sufficient to establish the existence of
complicated pneumoconiosis, thereby enabling claimant to establish entitlement
based on the irrebuttable presumption at 20 C.F.R. §718.304.
Accordingly, the administrative law judge awarded benefits. On appeal,
Westmoreland challenges its designation as the responsible operator.
Westmoreland also contends that the administrative law judge erred in
finding claimant entitled to the irrebuttable presumption set out at 20
C.F.R. §718.304. Claimant responds in support of the administrative
law judge's award of benefits. The Director, Office of Workers'
Compensation Programs (the Director), has filed a Motion to Remand, arguing,
inter alia, that the administrative law judge erred in excluding evidence
from the record. The Director also argues that the administrative law judge erred
in finding the x-ray evidence sufficient to establish the existence of complicated
pneumoconiosis. In a reply brief, Westmoreland argues that the administrative law
judge acted within his discretion in excluding evidence from the record.[2]
The Board must affirm the findings of the administrative law judge if they are
supported by substantial evidence, are rational, and are in accordance with
applicable law. 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).
Westmoreland argues that the administrative law judge erred in his resolution
of the responsible operator issue. The regulations provide that the operator with
which the miner had the most recent periods of cumulative employment of not less
than one year shall be the responsible operator. 20 C.F.R. §725.493(a)(1).
However, an operator may be relieved of liability if it is determined incapable of
paying benefits. 20 C.F.R. §725.492(a). In the absence of evidence to the
contrary, a showing that a business or corporate entity exists shall be deemed
sufficient evidence of an operator's capability of assuming liability. 20 C.F.R.
§725.492(b).
In his consideration of the identity of the responsible operator, the
administrative law judge noted that claimant's most recent employment of at
least one year was with Har-Mat Coal Company (Har-Mat).[3] Decision and Order at 3. The administrative law judge further noted
that the Director had submitted a letter from the Secretary of State from the State
of West Virginia indicating Har-Mat was involuntarily dissolved/withdrawn by decree
of the Kanawha County Circuit Court on December 16, 1987 for failure to pay
corporate license taxes and/or file an annual corporate report.[4] Id. The administrative law judge further
noted that the Director had submitted a 1996 report from Dun & Bradstreet
indicating that Har-Mat had filed for bankruptcy and was no longer conducting
operations. Id. at 3-4.
Westmoreland argued that the evidence was insufficient to establish that Har-Mat was out of business. Westmoreland also asserted that there was no evidence
that the directors and officers of Har-Mat were incapable financially of paying
benefits. The administrative law judge rejected these arguments. The
administrative law judge found that the reports from the Secretary of State and Dun
& Bradstreet were sufficient to establish that Har-Mat was dissolved as a business
entity. Decision and Order at 4. The administrative law judge further found that
the Director was not required to proceed against Har-Mat's corporate officers
before proceeding against Westmoreland. Id. The administrative law judge,
therefore, held that Westmoreland was the proper responsible operator inasmuch as
it was the coal mine operator that most recently employed the claimant for one year
or more and was financially capable of paying benefits. Id.
Westmoreland initially argues that the administrative law judge erred in
relying upon a 1996 report from Dun & Bradstreet inasmuch as this report was not
admitted into the record. At the hearing, the administrative law judge noted that
the Director had submitted additional evidence to be marked as Director's Exhibit
40 and offered into evidence. Transcript at 4-5, 7. Westmoreland objected to the
admission of this evidence, arguing that the source of the information contained
in the report was not clear. Id. at 7. The administrative law judge,
without discussion, denied the Director's request to admit this evidence into the
record. Id.
Because the administrative law judge excluded the Dun and Bradstreet report
from the record (excluded Director's Exhibit 40), the administrative law judge
erred in relying upon it in resolving the responsible operator issue. See
generally Fetterman v. Director, OWCP, 7 BLR 1-688 (1985). Inasmuch as the
administrative law judge's finding that Har-Mat was incapable of assuming liability
for the payment of benefits was based in part upon this excluded evidence, we
vacate the administrative law judge's designation of Westmoreland as the
responsible operator and remand the case for further consideration.[5]
The Director contends that the administrative law judge erred in not admitting
this report into the record. The regulations provide that any evidence not
submitted to the district director may be received in evidence subject to the
objection of any party if it is sent to all other parties at least twenty days
before the hearing. 20 C.F.R. §725.456(b)(1). The excluded report was
submitted on March 27, 1996, more than twenty days before the April 23, 1996
hearing.
The Board has construed Section 725.456 to favor admission of all evidence
that is relevant and to allow the adjudicator to determine the weight to be
assigned to the evidence. See Cochran v. Consolidation Coal Co., 12 BLR 1-137 (1989). The administrative law judge did not explain his basis for excluding
the report submitted as Director's Exhibit 40. Inasmuch as the administrative law
judge's analysis does not comply with the Administrative Procedure Act (APA),
specifically 5 U.S.C. §557(c)(3)(A), which provides that every adjudicatory
decision must be accompanied by a statement of findings of fact and conclusions of
law and the basis therefor on all material issues of fact, law or discretion
presented in the record, 5 U.S.C. §557(c)(3)(A), as incorporated into the Act
by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a);
see Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989), the
administrative law judge, on remand, is instructed to reconsider whether to admit
the evidence contained in proposed Director's Exhibit 40 into the record.
Westmoreland next contends that the administrative law judge committed
numerous errors in finding the claimant entitled to the irrebuttable presumption
at 20 C.F.R. §718.304. Westmoreland initially contends that the
administrative law judge erred in not considering all the relevant evidence of
record. We agree. Westmoreland accurately notes that although Dr. Scott
interpreted two separate x-rays taken on February 14, 1983 as negative for
complicated pneumoconiosis,[6] the administrative
law judge only considered one of these interpretations. See Decision and
Order at 6.
The administrative law judge also erred in not considering relevant medical
opinion evidence. The administrative law judge erred in not considering the
medical opinions of Drs. Jarboe,[7] Chillag,[8] Dahhan[9] and
Crisalli.[10] Employer's Exhibits 3, 13, 15.
The administrative law judge also erred in not considering the comments found
on Dr. Gaziano's x-ray report. Although Dr. Gaziano interpreted claimant's April
11, 1994 x-ray as revealing size A large opacities, Dr. Gaziano commented that in
regard to the upper lobe lesion, he could not "exclude coexisting TB." Director's
Exhibit 13. The introduction of legally sufficient evidence of complicated
pneumoconiosis does not automatically qualify a claimant for the irrebuttable
presumption found at 20 C.F.R. §718.304. The administrative law judge must
examine all the evidence on this issue, i.e., evidence of simple and
complicated pneumoconiosis, as well as evidence of no pneumoconiosis, resolve the
conflicts, and make a finding of fact. See Melnick v. Consolidation Coal
Co., 16 BLR 1-31 (1991) (en banc); Truitt v. North American Coal
Corp., 2 BLR 1-199 (1979), aff'd sub nom. Director, OWCP v. North
American Coal Corp., 626 F.2d 1137, 2 BLR 2-45 (3d Cir. 1980).
Westmoreland also contends that the administrative law judge, in finding the
existence of complicated pneumoconiosis, erred in not according any weight to the
x-ray interpretations rendered by Drs. Binns, Morgan, Dahhan and Patel. Although
the administrative law judge noted that Dr. Wheeler's finding that claimant did not
suffer from complicated pneumoconiosis was supported by the opinions of Drs. Kim,
Scott, Fino and Castle, see Decision and Order at 10, the administrative law
judge failed to consider that Dr. Wheeler's opinion was also supported by the
opinions of Drs. Binns, Morgan, Dahhan and Patel. Inasmuch as Drs. Binns, Morgan,
Dahhan and Patel found no large opacities that could be classified as size A, B or
C, their interpretations support a finding that claimant does not suffer from
complicated pneumoconiosis. Director's Exhibit 14; Employer's Exhibits 6, 10, 11.
Moreover, in finding the x-ray evidence sufficient to establish the existence
of complicated pneumoconiosis, the administrative law judge improperly focused on
the number of physicians rendering interpretations of complicated pneumoconiosis.
In evaluating x-ray evidence, an administrative law judge should focus on the
number of x-ray interpretations, along with the readers' qualifications, dates of
film, quality of film and the actual reading. See Dixon v. North Camp Coal
Co., 8 BLR 1-344 (1985); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211
(1985); see also Wheatley v. Peabody Coal Co., 6 BLR 1-1214 (1984); see
generally Gober v. Reading Anthracite Co., 12 BLR 1-67 (1988).
The administrative law judge also apparently considered the interpretations
of "ten physicians" who opined that claimant's focal densities were from a
coalescence of opacities to be supportive of a finding of complicated
pneumoconiosis. Decision and Order at 10. On remand, should the administrative law
judge find these opinions supportive of a finding of complicated pneumoconiosis,
he is instructed to explain his conclusion with reference to evidence in the
record.[11]
Westmoreland also contends that the administrative law judge mischaracterized
the qualifications of Dr. Aycoth. While the administrative law judge accurately
noted that Dr. Aycoth is a B reader, the administrative law judge's finding that
Dr. Aycoth is a Board-certified radiologist is not supported by the record.
See Claimant's Exhibit 1. Inasmuch as the administrative law judge's
evidentiary analysis does not coincide with the evidence of record, the
administrative law judge committed error. See generally Tackett v. Director,
OWCP, 7 BLR 1-703 (1985).
Westmoreland also contends that the administrative law judge's analysis
violates the APA.[12] We agree. Inasmuch as
the administrative law judge did not explain his basis for finding that the
evidence supportive of a finding of complicated pneumoconiosis was more credible
than the evidence supportive of a finding that claimant does not suffer from
complicated pneumoconiosis, his analysis does not comply with the APA. 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a); see
Wojtowicz, supra.
In light of these errors,[13] we vacate the
administrative law judge's finding pursuant to 20 C.F.R. §718.304 and remand
the case for further consideration.
Accordingly, the administrative law judge's Decision and Order awarding
benefits is vacated and the case is remanded for further consideration consistent
with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY Administrative Appeals Judge
MALCOLM D. NELSON, Acting Administrative Appeals Judge
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Footnotes.
1)The relevant procedural history of the instant case is as
follows: Claimant initially filed a claim for benefits with the Social Security
Administration (SSA) on March 1, 1973. Director's Exhibit 38. The SSA denied
the claim on June 18, 1973. Id. After claimant elected SSA review of his
claim, the SSA denied the claim on June 28, 1979. Id. The Department of
Labor also denied the claim on July 20, 1981. Id. There is no indication
that claimant took any further action with regard to his 1973 claim.
Claimant filed a second claim on February 23, 1994. Director's Exhibit
1.
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2)By Order dated June 15, 1998, the Board notified the parties
that the case would be held in abeyance pending decisions in Mitchem and
Lester. Hunter v. Westmoreland Coal Co., BRB No. 97-0899 (June 15,
1998) (Order). The Board indicated that the parties would be informed after
decisions in Mitchem and Lester were issued.
After issuing decisions in Mitchem and Lester, see Lester
v. Mack Coal Co., 21 BLR 1-126 (1999) (en banc) (McGranery, J.,
dissenting); Mitchem v. Bailey Energy, Inc., BLR , BRB No.
97-1757 BLA/A (July 26, 1999) (en banc) (Nelson and Hall, J.J.,
dissenting), the Board, by Order dated August 4, 1999, informed the parties
that the instant case was no longer held in abeyance. Hunter v. Westmoreland
Coal Co., BRB No. 97-0899 (Aug. 4, 1999) (Order). The Board notified the
parties that they could file supplemental briefs addressing the issues in
Mitchem and Lester within ten days from receipt of the Order.
Id.
The Director, Office of Workers' Compensation Programs (the Director),
filed a supplemental brief, noting, inter alia, his agreement with
the Board that the Director is not required to proceed against the officers and
directors of a miner's most recent employer before proceeding against a prior
employer. Westmoreland Coal Company filed a supplemental brief, reiterating its
contention that the administrative law judge erred in failing to dismiss it as
the putative responsible operator. Claimant has not filed a supplemental
brief.
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3)In the instant case, claimant's most recent coal mine
employment of at least one year's duration was with Har-Mat Coal Company
(Har-Mat) (1986-1988). Director's Exhibit 4. Claimant's next most
recent coal mine employment was with Westmoreland Coal Company
(Westmoreland) from 1981 to 1986. Id.
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4)By letter dated August 8, 1991, Ken Hechler, the Secretary
of State for the State of West Virginia, informed the Department of Labor that
Har-Mat, a West Virginia corporation, was chartered on May 31, 1985. Director's
Exhibit 21. The Secretary of State further indicated that Har-Mat was not in
good standing and was "involuntarily dissolved/withdrawn by decree of the
Kanawha County Circuit Court on December 16, 1987 for failure to pay corporate
license taxes and/or file the annual corporate report." Id.
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5)Westmoreland also argues that it cannot be designated the
responsible operator because the Department of Labor failed to proceed against
the officers and directors of Har-Mat as potential responsible operators. We
disagree. The Director is not required to consider whether the corporate
officers of a potentially responsible operator are financially incapable of
assuming liability for black lung payments, in addition to establishing that the
potential operator itself is incapable of assuming liability, before designating
the next responsible operator. The Board has held that corporate officers, as
individuals, cannot be considered to be responsible operators unless they fall
within the definition of a responsible operator at 20 C.F.R. §725.491.
See Lester v. Mack Coal Co., 21 BLR 1-126 (1999) (en banc)
(McGranery, J., dissenting on other grounds); see also Mitchem
v. Bailey Energy, Inc., BLR , BRB No. 97-1757 BLA/A (July 26,
1999) (en banc) (Nelson and Hall, J. J., dissenting).
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6)Dr. Scott indicates that one x-ray taken on February 14,
1983 was provided by "Kanawha Valley Radiologists" and the other x-ray taken on
February 14, 1983 was provided by "Associated Radiologists." Employer's Exhibit
3. In his summary of the x-ray evidence, the administrative law judge noted
that Dr. Wheeler rendered interpretations of two x-rays taken on February 14,
1983. Decision and Order at 6. The administrative law judge, however, only
referenced one of Dr. Scott's interpretations of the x-rays taken on February
14, 1983. Id.
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7)Dr. Jarboe reviewed the medical evidence. In a report dated
February 28, 1996, Dr. Jarboe noted there was sufficient radiographic evidence
to make a diagnosis of coal workers' pneumoconiosis. Employer's Exhibit 13.
Dr. Jarboe further noted that although a few x-ray readings mentioned the
possibility of complicated pneumoconiosis, the great majority of x-ray
interpretations did not describe a pattern compatible with a finding of
complicated pneumoconiosis. Id. Dr. Jarboe, therefore, concluded that
claimant did not suffer from progressive massive fibrosis. Id. In a
supplemental report dated March 27, 1996, Dr. Jarboe reiterated his opinion that
there was adequate evidence to make a diagnosis of simple coal workers'
pneumoconiosis. Employer's Exhibit 15.
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8)Dr. Chillag reviewed the medical evidence. In a report
dated May 11, 1995, Dr. Chillag opined that there was insufficient objective
evidence to justify a diagnosis of coal workers' pneumoconiosis. Employer's
Exhibit 3. Dr. Chillag also noted that the findings of the radiologists at John
Hopkins University School of Medicine that the x-ray changes could indicate the
possibility of tuberculosis "may be confused by less experienced readers."
Id. In a supplemental report dated March 27, 1996, Dr. Chillag opined
that there was "probably" sufficient objective evidence to justify a diagnosis
of coal workers' pneumoconiosis. Employer's Exhibit 15.
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9)Dr. Dahhan reviewed the medical evidence. In a report dated
May 11, 1995, Dr. Dahhan noted that there were "equivocal radiological findings
regarding the presence of simple pneumoconiosis." Employer's Exhibit 3.
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10)Dr. Crisalli reviewed the medical evidence. [Dr. Crisalli
previously examined claimant on October 26, 1994. See Employer's Exhibit
2.] In a report dated April 1, 1996, Dr. Crisalli opined that there was
insufficient objective evidence to justify a diagnosis of coal workers'
pneumoconiosis. Employer's Exhibit 15. Dr. Crisalli noted that although the x-ray findings may be related to an old infection such as tuberculosis, he could
not "state for sure that coal workers' pneumoconiosis is not present."
Id.
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11)The administrative law judge should also identify these
"ten physicians."
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12)The Director agrees with Westmoreland that the
administrative law judge failed to adequately explain his decision to credit x-ray readings that were positive for complicated pneumoconiosis over the contrary
evidence. Director's Motion to Remand at 6.
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13)Westmoreland also contends that the administrative law
judge erred in not according greater weight to the interpretations of Drs.
Wheeler, Scott and Kim based upon their status as professors of radiology at The
Johns Hopkins Medical Institutions. See Employer's Exhibits 3, 4. An
administrative law judge, in evaluating the relative weight of the x-ray
readings, is not limited to considering the B reader and Board-certified reader
status of the various physicians. However, while an administrative law judge is
not barred from considering further factors relevant to the level of
radiological competence, such as a professorship in the field of radiology, he
is not obligated to do so. See generally Worach v. Director, OWCP, 17 BLR
1-105 (1993).
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NOTE: This is an UNPUBLISHED BLA Document.
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