BRB Nos. 97-1832 BLA
and 97-1832 BLA-A
WILLIAM MACK GOODMAN
Claimant-Petitioner
Cross-Respondent
v.
EASTERN ASSOCIATED COAL
CORPORATION
Employer
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Respondent
Cross-Petitioner )
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) DATE
ISSUED:08/31/1999
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) DECISION AND ORDER
Appeal of the Decision and Order - Dismissing Eastern Associated Coal
and Denying Benefits of Richard D. Mills, Administrative Law Judge,
United States Department of Labor.
Philip A. LaCaria, Welch, West Virginia, for claimant.
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, SMITH,
Administrative Appeals Judge and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Claimant appeals and the Director, Office of Workers' Compensation Programs
(the Director), cross-appeals the Decision and Order - Dismissing Eastern
Associated Coal and Denying Benefits (96-BLA-1382) of Administrative Law Judge
Richard D. Mills 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 administrative law judge credited claimant with
at least ten years of coal mine employment, based on a stipulation of the
parties, and adjudicated the claim pursuant to 20 C.F.R. Part 718, in light of
claimant's May 1995 filing date. In addition, the administrative law judge
dismissed Eastern Associated Coal Corporation (EACC) as the putative responsible
operator and found that the Black Lung Disability Trust Fund (Trust Fund) would
be liable for the payment of benefits, if awarded. Addressing the merits of
entitlement, the administrative law judge found the biopsy evidence sufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(2) and that the evidence was insufficient to rebut the
presumption that claimant's pneumoconiosis arose out of his coal mine employment
pursuant to 20 C.F.R. §718.203(b). The administrative law judge further
found that the medical evidence of record was insufficient to establish the
existence of complicated pneumoconiosis pursuant to 20 C.F.R.
§§718.202(a)(3) and 718.304. However, the administrative law judge
found the medical evidence of record sufficient to establish total respiratory
disability pursuant to 20 C.F.R. §718.204(c) but that the evidence was
insufficient to establish that claimant's total disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b). Accordingly, the
administrative law judge denied benefits.
In challenging the administrative law judge's denial of benefits, claimant
contends that the administrative law judge erred in finding the medical evidence
insufficient to establish complicated pneumoconiosis pursuant to Section
718.304. In addition, claimant contends that the administrative law judge erred
in failing to find that pneumoconiosis was a contributing cause of his total
disability. In response, the Director urges affirmance of the administrative
law judge's finding that the evidence was insufficient to establish the
existence of complicated pneumoconiosis pursuant to Section 718.304. However,
the Director concurs with claimant that the administrative law judge erred in
finding that the evidence was insufficient to establish that claimant's total
disability was due to pneumoconiosis pursuant to Section 718.204(b). The
Director thus requests that the Board vacate the administrative law judge's
Section 718.204(b) finding and remand the case for further consideration.
Employer has not filed a response brief in this appeal.[1]
In his cross-appeal, the Director contends that the administrative law
judge erred in dismissing EACC as the responsible operator inasmuch as the
Director is under no obligation to investigate whether the sole corporate
officer of a putative responsible operator is capable of assuming financial
liability for benefits and thus is not required to name the corporate officer as
a separate possible responsible operator. Rather, the Director argues that the
decision of whether to proceed against a corporate officer is a purely
discretionary decision on the part of the Department of Labor. Neither claimant
nor EACC has responded to the Director's cross 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).
Initially, we address the procedural issue raised in the Director's cross-appeal. The administrative law judge, in dismissing EACC as the putative
responsible operator, found that the Department of Labor (DOL) failed to carry
its burden of establishing that Bailey Energy, Incorporated (Bailey Energy), the
company for which claimant was most recently employed for at least one (1) year,
was financially incapable of assuming liability.[2] Decision and Order at 4. In particular, the administrative law
judge found that DOL failed to adequately prove that Kennie Childers, Bailey
Energy's sole corporate officer, was also financially incapable of assuming
liability. Id. Citing Donovan v. McKee, 845 F.2d 70 (4th Cir.
1988) and 30 U.S.C. §933(d)(1), the administrative law judge found that DOL
should have conducted a more detailed investigation into Mr. Childers's ability
to assume financial liability and that, absent such an investigation, and
because the regulations do not allow DOL the option of whether or
not to pursue a possible responsible operator, the administrative law judge
dismissed EACC, the most recent employer financially capable of assuming
liability. Id. Thus, the administrative law judge found the Trust Fund
liable for any benefits which may be payable in this case. Decision and Order
at 5.
Subsequent to the issuance of the administrative law judge's Decision and
Order, the Board held in Lester v. Mack Coal Co., 21 BLR 1-126
(1999)(Order on recon.)(en banc), that 30 U.S.C. §933(d)(1), and its
implementing regulation, 20 C.F.R. §725.495(a), cannot be used to modify
the definition of a responsible operator to include corporate officers. The
Board held that the Director is not required to consider whether officers of a
corporation can be held liable as responsible operators pursuant to 20 C.F.R.
§725.491(a). Rather, the Director, at his discretion, may institute
proceedings to impose a penalty on certain corporate officers of uninsured
corporations, whose responsibility it is to maintain the company's insurance
policies pursuant to Section 423 of the Act and Section 725.495(a), when they
fail to secure the appropriate black lung insurance.[3] See Lester, supra; see also Mitchem v.
Bailey Energy, Inc., et al, BLR , BRB Nos. 97-1757 BLA and 97-1757
BLA-A (July 26, 1999)(en banc).
The administrative law judge, therefore, relied on the mistaken assumption
that the Director is required to determine 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 most
recent responsible operator. Decision and Order at 4-5. Inasmuch as the
Director's decision to take enforcement action against corporate officers
pursuant to Section 725.495 is discretionary, the administrative law judge erred
in finding the Trust Fund liable in this case on the theory that the Director
was obliged to enforce this provision. See Lester, supra; see also
Mitchem, supra. Consequently, we vacate the administrative law judge's
dismissal of EACC and remand the case for further consideration of the
responsible operator issue in accordance with Lester and Mitchem.
20 C.F.R. §§725.491(a), 725.492(a), 725.493, 725.495(a); Lester,
supra; Mitchem, supra.
Addressing the administrative law judge's findings on the merits, claimant
challenges the administrative law judge's denial of benefits, contending that
the administrative law judge erred in finding the medical evidence of record
insufficient to establish the existence of complicated pneumoconiosis pursuant
to Section 718.304. In particular, claimant contends that the record contains
two diagnoses of complicated pneumoconiosis, i.e., the opinion of Dr.
Jabour and the pathology report of Dr. Pia, and argues that the administrative
law judge erred in failing to consider Dr. Pia's report in weighing the evidence
relevant to the issue of complicated pneumoconiosis We disagree.
Contrary to claimant's contention, the medical report of Dr. Pia, the
pathologist who examined claimant's lung biopsy evidence, did not conclude that
the biopsy evidence showed the existence of complicated pneumoconiosis. Rather,
a review of Dr. Pia's report shows that the physician diagnosed findings
compatible with coal workers' pneumoconiosis and chronic bronchitis. Claimant's
Exhibit 1. Dr. Pia did not mention the existence of complicated pneumoconiosis,
massive lesions, progressive massive fibrosis or any other indicia of
complicated pneumoconiosis. Id. Consequently, we reject claimant's
contention that the administrative law judge erred in failing to consider the
medical report of Dr. Pia as supportive of a finding of complicated
pneumoconiosis pursuant to Section 718.304. See Lafferty v. Cannelton
Industries, Inc., 12 BLR 1-190 (1989).
Moreover, we affirm the administrative law judge's finding that the
February 24, 1997 report of Dr. Jabour is insufficient to establish the
existence of complicated pneumoconiosis. Decision and Order at 9. The
administrative law judge, within a reasonable exercise of his discretion,
accorded no weight to this report, finding that it was neither reasoned nor
documented inasmuch as Dr. Jabour did not explain the basis for his finding of
complicated pneumoconiosis. Id. In particular, the administrative law
judge found that Dr. Jabour failed to adequately explain the inconsistencies
between the February 24, 1997 report and the reports issued before and after
this report, which do not reference the existence of complicated pneumoconiosis.
Decision and Order at 9; Director's Exhibits 14, 15, 41; Claimant's Exhibits 1-3; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en
banc); Fagg v. Amax Coal Co., 12 BLR 1-77 (1988); Hopton v. United
States Steel Corp., 7 BLR 1-12 (1984). Inasmuch as the administrative law
judge reasonably accorded no weight to the February 24, 1997 report of Dr.
Jabour, the only evidence supportive of a finding of complicated pneumoconiosis,
we affirm his finding that the evidence is insufficient to establish the
existence of complicated pneumoconiosis and, thus, that claimant is not entitled
to the benefit of the irrebuttable presumption of total disability pursuant to
Section 718.304. 20 C.F.R. §§718.202(a)(3), 718.304.
Claimant further challenges the administrative law judge's finding that the
evidence of record was insufficient to establish that claimant's pneumoconiosis
was a substantially contributing cause of his total respiratory disability. In
particular, claimant contends that Dr. Jabour's opinion is sufficient to
establish that pneumoconiosis was a contributing cause of his total respiratory
disability pursuant to Section 718.204(b).[4]
Claimant also notes that the State of West Virginia awarded a forty (40) percent
disability award for occupational pneumoconiosis.[5] Moreover, the Director concurs with claimant's allegation
regarding the administrative law judge's treatment of Dr. Jabour's opinion and
requests that the Board remand the case to the administrative law judge for
further consideration of the medical evidence pursuant to Section 718.204(b).
The Director contends that the administrative law judge did not consider all of
Dr. Jabour's reports and treatment summaries and, thus, mischaracterized the
physician's conclusions. Additionally, the Director contends that the
administrative law judge improperly credited the medical opinions of Drs. Fino,
Tuteur and Zaldivar on the issue of causation inasmuch as their opinions stated
that claimant does not suffer from pneumoconiosis and, therefore, are
contradictory to the administrative law judge's finding on that issue.
Consequently, the Director argues that the case should be remanded to the
administrative law judge for further consideration of the relevant medical
evidence, particularly, the entirety of Dr. Jabour's medical reports. We agree.
In finding the evidence insufficient to establish that claimant's total
respiratory disability was due to pneumoconiosis pursuant to Section 718.204(b),
the administrative law judge stated that, as he discussed pursuant to Section
718.202(a)(4), there was no well reasoned and documented medical opinions that
state that pneumoconiosis contributes in any way to claimant's pulmonary
impairment. Decision and Order 16. Therefore, the administrative law judge
found that claimant did not establish that pneumoconiosis was a contributing
cause of his total respiratory disability pursuant to Section 718.204(b).
Id.
However, as claimant and the Director correctly contend, the administrative
law judge did not fully consider all of the reports submitted by Dr. Jabour
during the pendency of this claim. See Director's Exhibits 14, 15, 41;
Claimant's Exhibits 1-3. The administrative law judge only considered some of
Dr. Jabour's reports in his discussion of the evidence pursuant to Section
718.202(a)(4), but has not considered all of the medical reports and treatment
summaries contained in the record.[6] In
particular, the administrative law judge did not discuss Dr. Jabour's May 18,
1996 report, in which the physician stated that claimant's pulmonary condition
was due to both his emphysema and pneumoconiosis, see Claimant's Exhibit
2. Therefore, as the Director correctly contends, the administrative law judge,
in failing to consider all of the medical reports of Dr. Jabour, in their
entirety, has not accurately characterized Dr. Jabour's opinion that claimant's
total respiratory disability was due to both his emphysema and pneumoconiosis.
Decision and Order at 14-15; Director's Exhibits 14, 15, 41; Claimant's Exhibits
1-3; see Hunley v. Director, OWCP, 8 BLR 1-323 (1985); Tackett
v. Director, OWCP, 7 BLR 1-703 (1985); see also McCune v. Central
Appalachian Coal Co., 6 BLR 1-996 (1984). We, therefore, remand the case
for the administrative law judge to consider the reports of Dr. Jabour, in
conjunction with one another, to determine whether the physician's opinion is
sufficient to establish that claimant's pneumoconiosis is a contributing cause
of his total respiratory disability. Id. Moreover, as the Director
correctly contends, the administrative law judge must consider, on remand,
whether the opinions of Drs. Fino, Tuteur and Zaldivar, each of which stated
that claimant is not suffering from pneumoconiosis, are relevant to the issue of
the cause of claimant's total respiratory disability pursuant to Section
718.204(b), in light of their finding on the issue of the existence of
pneumoconiosis, which is contrary to the administrative law judge's
determination. See Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR 2-299
(4th Cir. 1994); Toler v. Eastern Associated Coal Co., 43 F.3d 109, 19
BLR 2-70 (4th Cir. 1995); see also Dehue Coal Company v. Ballard, 65 F.3d
1189, 19 BLR 2-306 (4th Cir. 1995); Clark, supra; Trujillo v. Kaiser
Steel Corp., 8 BLR 1-472, 1-474 (1986).
Accordingly, the administrative law judge's Decision and Order - Dismissing
Eastern Associated Coal and Denying Benefits is affirmed in part, vacated in
part and the case is remanded to the administrative law judge for further
proceedings consistent with this decision.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) The parties do not challenge the administrative law judge's
decision to credit claimant with at least ten years of coal mine employment, his
finding that the existence of pneumoconiosis arising out of claimant's coal mine
employment was established under 20 C.F.R. §§718.202(a)(2) and
718.203(b), or his finding that the evidence was sufficient to establish total
disability pursuant to 20 C.F.R. §718.204(c). Therefore, these findings
are affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
Back to Text
2) In order to be named the responsible operator, an operator
must be the most recent employer who employed the miner for a period of one year
and is capable of assuming financial liability for benefits, by either obtaining
insurance, qualifying as a self-insured operator or having assets available for
the payment of benefits. 20 C.F.R. §§725.492(a)(4), 725.493; see
also Director, OWCP v. Trace Fork Coal Co. [Matney], 67 F.3d
503, 19 BLR 2-290 (4th Cir. 1995).
Back to Text
3) In addition, under 20 C.F.R. §725.495(a), certain
corporate officers (presidents, secretaries and/or treasurers) may also be held
severally personally liable jointly with the uninsured corporation for the
payment of benefits. 20 C.F.R. §725.495(a).
Back to Text
4) As the administrative law judge properly stated, in this
case arising in the United States Court of Appeals for the Fourth Circuit, in
order to establish entitlement, a claimant's pneumoconiosis must be a
contributing cause of a totally disabling respiratory or pulmonary impairment.
Hobbs v. Clinchfield Coal Co. [Hobbs II], 45 F.3d 819, 19 BLR 2-86
(4th Cir. 1995); Robinson v. Pickands Mather & Co., 914 F.2d 35, 14 BLR
2-68 (4th Cir. 1990).
Back to Text
5) Contrary to claimant's contention, the finding of a state
workers' compensation board on the extent of claimant's respiratory impairment
is relevant evidence but is not binding on the administrative law judge. 20
C.F.R. §718.206; Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc); Miles v. Central Appalachian Coal Co., 7 BLR
1-744 (1985). Inasmuch as the administrative law judge reasonably found that
employer, Eastern Associated Coal Corporation, was not a party to the state
proceedings and, therefore, the evidence submitted by employer in the instant
case was not considered by the state board, see Decision and Order at 3
n.1, it was not error for the administrative law judge to exclude the state
board's finding from his consideration of the relevant evidence. Id.
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6) The administrative law judge, pursuant to Section
718.202(a)(4), considered only Dr. Jabour's June 1995 and May 1997 medical
reports. However, the administrative law judge did not discuss the numerous
treatment summaries and reports dating from his initial report in June 1995
through the May 1997 report. See Claimant's Exhibits 1-3.
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NOTE: This is an UNPUBLISHED BLA Document.
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