BRB No. 98-0230 BLA
ROBERT RAY
Claimant-Respondent
v.
KENELLIS ENERGIES, INCORPORATED
Employer-Petitioner
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-In-Interest )
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ISSUED:08/19/1999
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) DECISION AND ORDER
Appeal of the Decision and Order After Remand Awarding Benefits of
Ellin M. O'Shea, Administrative Law Judge, United States Department of
Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for
claimant.
Michael J. Pollack (Arter & Hadden, LLP), Washington, D.C., for
employer.
Jeffrey S. Goldberg (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: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order After Remand Awarding
Benefits (90-BLA-1359) of Administrative Law Judge Ellin M. O'Shea 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). This case is before the Board for the third time.
In the original Decision and Order issued on October 28, 1991,
Administrative Law Judge Robert S. Amery determined that the instant case
was a duplicate claim pursuant to 20 C.F.R. §725.309(d).[1] Judge Amery credited claimant with
twenty-five years of coal mine employment and adjudicated the claim
pursuant to 20 C.F.R. Part 718, based on claimant's April 1986 filing
date. Addressing the merits, Judge Amery found the evidence of record
sufficient to establish the existence of pneumoconiosis arising out of
claimant's coal mine employment pursuant to 20 C.F.R.
§§718.202(a) and 718.203(b). In addition, Judge Amery found
the evidence sufficient to establish a totally disabling respiratory or
pulmonary impairment pursuant to 20 C.F.R. §718.204(c).
Accordingly, he awarded benefits.
On appeal, the Board vacated Judge Amery's award of benefits and
remanded the case for further consideration. In particular, the Board
remanded the case for Judge Amery to consider the duplicate claim
pursuant to Section 725.309(d), under the standard enunciated in
Sahara Coal Co. v. Director, OWCP [McNew], 946 F.2d 554, 15
BLR 2-227 (7th Cir. 1991). Additionally, the Board vacated Judge Amery's
finding of the existence of pneumoconiosis pursuant to Section
718.202(a)(4) and remanded the case for him to reconsider all of the
relevant medical opinion evidence. The Board also vacated the finding at
Section 718.204(c) and remanded the case for Judge Amery to reconsider
the medical evidence such that his finding comports with Fields v.
Island Creek Coal Co., 10 BLR 1-19 (1987) and Shedlock v.
Bethlehem Mines Corp., 9 BLR 1-195 (1986), aff'd on recon., 9
BLR 1-236 (1987)(en banc). The Board further instructed Judge
Amery to consider 20 C.F.R. §718.204(b), if reached, in accordance
with the standard enunciated in Hawkins v. Director, OWCP, 907
F.2d 697, 14 BLR 2-17 (7th Cir. 1990) and Shelton v. Old Ben Coal
Co., 899 F.2d 690, 15 BLR 2-116 (7th Cir. 1991). Ray v. Kenellis
Energies, Inc., BRB No. 92-0519 BLA (Sept. 27, 1993)(unpub.).
On remand, Judge Amery found that the medical opinion of Dr. Myers
was sufficient to establish total respiratory disability and, thus,
sufficient to establish a material change in conditions pursuant to
Section 725.309(d) and McNew, supra. On the merits, Judge Amery
again found the evidence sufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(4). Additionally, he found
the evidence sufficient to establish total respiratory disability
pursuant to Section 718.204(c) and that claimant's total respiratory
disability was due to pneumoconiosis pursuant to Section 718.204(b).
Accordingly, Judge Amery again awarded benefits.
Pursuant to employer's second appeal, the Board vacated Judge
Amery's award of benefits. With respect to the finding of a material
change in conditions, the Board initially rejected employer's contention
that claimant was precluded from establishing a material change in
conditions because he left his last coal mine employment due to a knee
injury. The Board also rejected employer's contentions regarding the
progressive nature of pneumoconiosis. However, the Board vacated Judge
Amery's finding that claimant established a material change in conditions
pursuant to Section 725.309(d) and remanded the case for consideration of
all of the newly submitted evidence in accordance with McNew,
supra. Addressing the merits of entitlement, the Board vacated Judge
Amery's finding that the medical opinion evidence was sufficient to
establish the existence of pneumoconiosis at Section 718.202(a)(4),
holding that he impermissibly relied on the numerical superiority of the
medical opinions of total disability, in light of Sahara Coal Co. v.
Fitts, 39 F.3d 781, 18 BLR 2-384 (7th Cir. 1994), and remanded the
case for Judge Amery to reconsider all of the medical opinions of record
and provide a valid rationale for his weighing of this evidence.
However, the Board rejected employer's contention that Judge Amery failed
to consider whether the medical opinions were well reasoned in his
analysis of the evidence pursuant to Sections 718.202(a)(4) and
718.204(c), holding that this issue was fully addressed in the Board's
previous Decision and Order. Likewise, the Board rejected employer's
contention regarding the medical assessments contained in the medical
reports of Drs. Sanjabi, Chiou and Rao, as having been addressed in the
Board's previous decision. Nonetheless, the Board vacated Judge Amery's
Section 718.204(c) finding, holding that Judge Amery again relied on
numerical superiority in finding the evidence sufficient to establish
total respiratory disability, in contravention of Fitts, supra.
Lastly, the Board vacated Judge Amery's finding that pneumoconiosis was a
contributing cause of claimant's total respiratory disability pursuant to
Section 718.204(b) and remanded for consideration of the medical opinions
and to provide more detailed findings as to whether the opinions show a
causal connection between claimant's total respiratory disability and his
pneumoconiosis. Ray v. Kenellis Energies, Inc., BRB No. 94-2255
BLA (May 25, 1995)(unpub.).
On remand, the case was reassigned to Administrative Law Judge Ellin
M. O'Shea (the administrative law judge) inasmuch as Judge Amery was no
longer with the Office of Administrative Law Judges. Noting the Board's
remand instructions, the administrative law judge found the newly
submitted medical opinion evidence sufficient to establish total
respiratory disability and, thus, sufficient to establish a material
change in conditions pursuant to Section 725.309(d). On the merits, the
administrative law judge found the medical opinions of record sufficient
to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(4). In addition, she found the evidence sufficient to
establish a totally disabling respiratory or pulmonary impairment
pursuant to Section 718.204(c). Moreover, the administrative law judge
determined that the medical evidence was sufficient to establish that
pneumoconiosis was a necessary cause of claimant's total respiratory
disability pursuant to Section 718.204(b). Accordingly, the
administrative law judge awarded benefits.
In the current appeal, employer contends that the administrative law
judge erred in awarding benefits, raising numerous challenges to the
administrative law judge's findings. In particular, employer contends
that the administrative law judge erred in finding the evidence
sufficient to establish a material change in conditions pursuant to
Section 725.309. Employer also contends that the administrative law
judge erred in finding the medical opinion evidence sufficient to
establish the existence of pneumoconiosis pursuant to Section
718.202(a)(4). Additionally, employer contends that the administrative
law judge erred in finding the medical evidence sufficient to establish a
totally disabling respiratory or pulmonary impairment pursuant to Section
718.204(c)(4). Employer further argues that the administrative law judge
erred in finding that the evidence was sufficient to establish that
pneumoconiosis was a necessary cause of claimant's total respiratory
disability pursuant to Section 718.204(b). Lastly, employer contends
that the administrative law judge erred in failing to render specific
findings on the date of onset of total disability. In response, claimant
urges affirmance of the administrative law judge's award of benefits.
The Director, Office of Workers' Compensation Programs (the Director),
also responds, noting his disagreement with employer's interpretation of
the duplicate claim standard as enunciated by the United States Court of
Appeals for the Seventh Circuit. The Director argues that, contrary to
employer's contention, the administrative law judge properly determined
that in order to establish a material change in conditions, claimant need
only establish one of the elements of entitlement previously adjudicated
against him. The Director does not otherwise respond in this appeal. In
its reply brief, employer reiterates its allegations of error concerning
the administrative law judge's determination that the evidence is
sufficient to establish a material change in conditions.
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).
With respect to Section 725.309(d), the United States Court of
Appeals for the Seventh Circuit, within whose jurisdiction this case
arises, has held that a material change in conditions is established
where the miner did not have pneumoconiosis at the time of the first
application for benefits but has since contracted it and become totally
disabled by it, or where the miner's pneumoconiosis has progressed to the
point of total respiratory disability since the filing of the first
application. See McNew, supra. Moreover, subsequent to the
issuance of McNew, the court indicated in Peabody Coal Co. v.
Spese [Spese II], 117 F.3d 1001, 21 BLR 2-115 (7th Cir. 1997),
that under the McNew standard, if the prior denial was premised
upon alternative grounds, i.e., that the claimant failed to
establish either the existence of pneumoconiosis or total disability due
to pneumoconiosis, automatic denial of the subsequent claim can be
avoided if a material change in conditions is demonstrated with respect
to one of these elements of entitlement. Therefore, the court held that
in order to prevail on the duplicate claim issue, claimant must show that
something capable of making a difference has changed since the record
closed in the first claim. Spese, 117 F.3d at 1008, 21 BLR at 2-127.
In this case, the administrative law judge initially noted that the
previous claim was denied by the district director because claimant
failed to establish total disability due to pneumoconiosis and,
specifically, that claimant failed to show total respiratory disability
at the time of the first claim. Decision and Order at 8-9. The
administrative law judge, pursuant to the Board's remand instructions,
then considered all of the newly submitted evidence, finding that the
objective evidence was non-qualifying and, therefore, insufficient to
establish a material change in conditions. Decision and Order at 9. The
administrative law judge next considered the medical opinions of Drs.
Sanjabi, Thompson, Rao, Myers, Tuteur and Houser, finding that a
comparison of the physical limitations within the 1980 and 1986 opinions
of Drs. Sanjabi, Rao and Getty, shows a worsening of claimant's
condition. Id. In addition, Dr. Myers opined that claimant's
pulmonary condition probably restricted him from performing arduous
manual labor, which the administrative law judge found was supportive of
a finding that claimant cannot return to his usual coal mine employment
since she determined that claimant's usual coal mine employment required
arduous manual labor. Decision and Order at 9-10. The administrative
law judge further found that Dr. Houser's statement that claimant should
not return to coal mine employment because of his pulmonary condition and
Dr. Houser's additional statements concerning the impact that claimant's
return to coal dust exposure would have on his pulmonary condition,
namely, claimant's small airways obstruction, were opinions supportive of
a finding of total respiratory disability. Id. Lastly, the
administrative law judge determined that the opinion of Dr. Tuteur was
entitled to little weight, finding that his opinion, as expressed over
several reports, was inconsistent and poorly reasoned. Decision and
Order at 11. Additionally, the administrative law judge found that Dr.
Tuteur failed to adequately explain and document his reliance on evidence
not in the record in providing an opinion that claimant's musculoskeletal
problems affect his breathlessness. Id. Based on her weighing of
these medical opinions, the administrative law judge found that since the
previous denial, claimant's condition has deteriorated to the point that
he cannot return to his former coal mine employment and, therefore, the
newly submitted evidence is sufficient to establish a material change in
conditions. Id.
Initially, we reject employer's contention that the administrative
law judge applied an erroneous standard in determining whether claimant
established a material change in conditions, arguing that the
administrative law judge failed to determine whether it was claimant's
pneumoconiosis that progressed to the point of total disability.
Contrary to employer's contention, the administrative law judge weighed
the new evidence and determined that it was sufficient to establish total
disability, one of the elements previously adjudicated against claimant.
Decision and Order at 11. The administrative law judge found that the
new medical evidence established that claimant's respiratory or pulmonary
condition deteriorated since the prior denial such that he cannot return
to his usual coal mine employment. Id. The administrative law
judge properly considered not only whether the newly submitted evidence
was sufficient to establish one of the elements previously adjudicated
against claimant, but also found that this evidence showed that
claimant's condition has deteriorated since the prior denial. Therefore,
in accordance with Spese II, the administrative law judge
reasonably determined that the new evidence of record shows that
something capable of making a difference, namely, claimant's respiratory
condition, which has progressed to the level of total disability, has
changed since the record closed in the first claim. Decision and Order
at 11; Spese, supra; see also McNew, supra. Consequently, we
reject employer's contention that the administrative law judge applied an
improper standard in weighing the evidence pursuant to Section
725.309(d).
Moreover, we reject employer's contention that the administrative
law judge erred in failing to determine whether the physical limitations
relied upon were medical assessments by the physicians or merely
claimant's recitation of symptoms. The Board, in each of its previous
decisions, addressed and rejected this argument, see Ray,
BRB No. 92-0519 BLA, slip op. at 6; Ray, BRB No. 94-2255 BLA, slip
op. at 5, therefore, the law of the case doctrine governs. See
Gillen v. Peabody Coal Co., 16 BLR 1-22 (1991); Cochran v.
Consolidation Coal Co., 12 BLR 1-136 (1989); see also Williams v.
Healy-Ball-Greenfield, 22 BRBS 234 (1989)(Brown, J., dissenting).
However, we vacate the administrative law judge's finding that the
evidence of record is sufficient to establish a material change in
conditions pursuant to Section 725.309(d) and remand the case for the
administrative law judge to provide further rationale for her weighing of
the medical opinions. The administrative law judge reasonably found the
opinion of Dr. Myers, that claimant's silicosis results from his entire
exposure and these changes are permanent and probably restrict arduous
manual labor, was a diagnosis of total disability, in light of the
administrative law judge's finding that claimant's coal mine employment
required arduous manual labor. See Justice v. Island Creek Coal
Co., 11 BLR 1-91 (1988); Campbell v. Director, OWCP, 11 BLR 1-16 (1987); Salisbury v. Island Creek Coal Co., 7 BLR 1-501 (1984).
Nonetheless, we hold that the administrative law judge failed to
adequately explain the basis for her finding that the opinion of Dr.
Houser is sufficient to establish a totally disabling respiratory or
pulmonary impairment in light of Dr. Houser's statement that claimant has
no functional disability attributable to his coal mine employment,
see Employer's Exhibit 18. Moreover, Dr. Houser's additional
comment that claimant should not return to coal mine employment because
his respiratory impairment will be aggravated, is insufficient to
establish total respiratory disability under the Act. Taylor v. Evans
and Gambrel Co., Inc., 12 BLR 1-83 (1988); Justice, supra.
Consequently, on remand, the administrative law judge must weigh the
entirety of Dr. Houser's opinion in determining whether it is still
sufficient to establish total respiratory disability, when compared with
the contrary, probative evidence, and thus, sufficient to establish a
material change in conditions pursuant to Section 725.309(d). See
Fields, supra; Shedlock, supra; see also Spese, supra; McNew,
supra.
Turning to the findings on the merits, we affirm the administrative
law judge's finding that the medical opinion evidence is sufficient to
establish the existence of pneumoconiosis pursuant to Section
718.202(a)(4). Initially, we reject employer's contention that the
administrative law judge erred in finding that the opinions of Drs.
Myers, Sanjabi, Thompson, Rao and Houser were well reasoned because these
opinions were premised on positive x-ray interpretations. Employer's
Brief at 27. We fully addressed this issue and rejected employer's
challenge in both of our prior decisions, see Ray, BRB No.
92-0519 BLA, slip op. at 4; Ray, BRB No. 94-2255 BLA, slip op. at
5, therefore, the law of the case doctrine governs. See Gillen,
supra; Cochran, supra; see also Williams, supra. Likewise, we reject
employer's contention that the record is devoid of evidence supportive of
a finding that Drs. Sanjabi and Thompson are claimant's treating
physicians. As the Board held in its 1993 Decision and Order, Judge
Amery properly characterized Drs. Thompson and Sanjabi as treating
physicians based on claimant's hearing testimony, see Hearing
Transcript at 39-40, 41, 43, 45. See Ray, BRB No. 92-0519
BLA, slip op. at 5 n.7. Thus, inasmuch as we have fully addressed this
issue and rejected employer's challenge, the law of the case doctrine
governs. See Gillen, supra; Cochran, supra.
Moreover, we reject employer's contention that the administrative
law judge's finding that the opinions of Drs. Getty and Chiou are not
diagnoses of the absence of pneumoconiosis violates the doctrine of the
law of the case. Employer's Brief at 26-27. Contrary to employer's
contention, the Board, in the previous decision in this case, did not
affirm a finding that the opinions of Drs. Getty and Chiou are diagnoses
of no pneumoconiosis. Rather, the Board addressed the specifics of Judge
Amery's findings at Section 718.202(a)(4), i.e., his crediting of
the relevant medical opinions based on the status of physicians as
treating physicians, based on numerical superiority and based on whether
the opinions were reasoned and documented. The Board did not address
whether or not these opinions were diagnoses of pneumoconiosis.
See Ray, BRB No. 94-2255 BLA, slip op. at 4-5. Thus,
contrary to employer's contention, the administrative law judge did not
violate the law of the case doctrine in weighing the opinions of Drs.
Getty and Chiou. Rather, she properly exercised her discretion, as
trier-of-fact, in determining the credibility of these opinions and
finding that these opinions are not credible opinions contrary to a
finding of the existence of pneumoconiosis. Specifically, the
administrative law judge found the opinion of Dr. Chiou was not credible
because of the uncertainty of his diagnosis. See Justice, supra;
Campbell, supra. The administrative law judge also found that while
the opinion of Dr. Getty was internally inconsistent, it, nonetheless,
was supportive of a finding of legal pneumoconiosis inasmuch as Dr. Getty
diagnosed an obstructive pulmonary disease which was due in part to coal
dust exposure, even though Dr. Getty opined that there was no evidence of
pneumoconiosis. Decision and Order at 12; Director's Exhibit 30; see
Peabody Coal Co. v. Lowis, 708 F.2d 266, 5 BLR 2-84 (7th Cir. 1983);
see generally Justice, supra. Moreover, in finding that
the weight of the medical opinion evidence was sufficient to establish
the existence of pneumoconiosis at Section 718.202(a)(4), the
administrative law judge ultimately accorded greater weight to the
opinion of Dr. Houser, as supported by the opinion of Dr. Myers, based on
Dr. Houser's superior qualifications and her finding that these opinions
were also supported by the opinions of claimant's treating physicians,
Drs. Thompson and Sanjabi. Decision and Order at 12. Consequently,
since the administrative law judge considered all of the relevant
evidence of record and provided a rational basis for according greater
weight to the opinion of Dr. Houser, we affirm her finding that the
weight of the evidence is sufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(4). See Scott v.
Mason Coal Co., 60 F.3d 1138, 19 BLR 2-257 (4th Cir. 1995); Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
see also Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984).
With respect to the administrative law judge's Section 718.204(c)
finding, we vacate her determination that the old and new medical
evidence of record was sufficient to establish total respiratory
disability. In so finding, the administrative law judge stated that she
analyzed the medical evidence of record regarding total disability in
determining that the record supported a finding that claimant established
a material change in conditions pursuant to Section 725.309(d).
Therefore, based on her crediting of the opinions of Drs. Myers and
Houser, as well as the acceptance of the physical limitations noted by
the other physicians of record, in her analysis of the evidence pursuant
to Section 725.309(d), the administrative law judge found that the weight
of the medical evidence likewise was sufficient to establish total
respiratory disability pursuant to Section 718.204(c). Decision and
Order at 12-13. However, inasmuch as we vacated the administrative law
judge's weighing of the medical opinion of Dr. Houser pursuant to Section
725.309(d), see discussion, supra, and for the reasons set
forth therein, we further vacate her finding at Section 718.204(c). On
remand, the administrative law judge must provide a separate analysis of
all of the evidence of record in determining whether the contrary,
probative medical evidence of record, previously and newly submitted, is
sufficient to establish total respiratory disability pursuant to Section
718.204(c). See Fields, supra; Shedlock, supra.
Turning to Section 718.204(b), employer challenges the
administrative law judge's finding that the medical evidence is
sufficient to establish that pneumoconiosis was a necessary cause of
claimant's total respiratory disability, arguing that the administrative
law judge erred by misinterpreting the medical opinions of Drs. Houser
and Myers. Employer further contends that neither physician opined that
pneumoconiosis was a necessary cause of claimant's total disability.
Rather, employer contends that the administrative law judge erroneously
relied upon the physicians having advised claimant against returning to
his coal mining. In addition, employer contends that the administrative
law judge erred by misplacing the burden of proof at Section 718.204(b),
arguing that the administrative law judge failed to consider the evidence
ruling out a causal connection between claimant's pneumoconiosis and his
total respiratory disability.
In order to be a contributing cause, pursuant to Section 718.204(b),
pneumoconiosis must be a necessary, but need not be a sufficient
condition of the miner's total disability. Claimant must prove a simple
"but for" nexus to be entitled to benefits. Hawkins, supra;
see also Shelton, supra.
Initially, the administrative law judge found that Dr. Myers opined
that claimant's "condition" restricts somewhat arduous labor. In
addition, the administrative law judge found that Dr. Myers, within his
report, referred to claimant's silicosis as his pulmonary condition.
Therefore, the administrative law judge reasonably exercised her
discretion, as trier-of-fact, in determining that the "condition" which
restricts arduous labor was claimant's silicosis. Decision and Order at
13. Inasmuch as this finding is not patently unreasonable nor inherently
incredible, we affirm this finding. Decision and Order at 13; Claimant's
Exhibit 1; see generally Cordero v. Triple A Machine Shop,
580 F.2d 1331 (9th Cir. 1978). Thus, the administrative law judge
reasonably found that the opinion of Dr. Myers was supportive of a
finding that pneumoconiosis was a contributing cause of claimant's total
disability. See Hawkins, supra; see also Compton v. Inland Steel Coal
Co., 933 F.2d 477, 15 BLR 2-79 (7th Cir. 1991); Shelton,
supra.
However, as employer correctly contends, the administrative law
judge failed to discuss the evidence contrary to a finding that
claimant's pneumoconiosis was a contributing cause of his total
respiratory disability. In particular, the administrative law judge
stated that the record contained evidence that claimant's total
disability was caused by pneumoconiosis and that such evidence was not
persuasively rebutted. Decision and Order at 13-14. However, inasmuch
as the administrative law judge did not discuss the contrary evidence,
most notably, the medical opinion of Dr. Tuteur, we vacate her Section
718.204(b) finding and remand the case for consideration of all of the
relevant evidence of record. See Hawkins, supra; see also
Compton, supra; Shelton, supra; Director, OWCP v. Greenwich
Collieries [Ondecko], 114 S.Ct. 2251, 18 BLR 2A-1 (1994), aff'g
sub nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730,
17 BLR 2-64 (3d Cir. 1993).
Moreover, as employer correctly contends, the administrative law
judge failed to adequately explain how Dr. Houser's opinion, that
claimant had no functional disability related to his occupation as a coal
miner, is supportive of a finding that pneumoconiosis was a contributing
cause of the miner's total disability. See Hawkins, supra; see
also Compton, supra; Shelton, supra. We, therefore, vacate the
administrative law judge's finding of causation pursuant to Section
718.204(b) and remand the case for the administrative law judge to
adequately explain how the physicians on whom she relied made the causal
connection between claimant's pneumoconiosis and his total disability.
Id. On remand, the administrative law judge must consider all of
the relevant evidence of record, in particular, Dr. Houser's medical
report and deposition testimony and the contrary opinion of Dr. Tuteur
pursuant to Section 718.204(b).[2]
Finally, employer contends that the administrative law judge erred
in determining that April 1986 is the month in which claimant's
entitlement to benefits commenced, arguing that the administrative law
judge failed to render specific findings regarding the date of onset. In
particular, employer contends that the administrative law judge relied on
medical opinions dated 1987 and 1988 in finding claimant entitled to
benefits and, therefore, this indicates that claimant became totally
disabled by pneumoconiosis at some time after his April 1986 filing date.
In concluding that claimant established entitlement to benefits as of
April 1986, the administrative law judge did not render specific findings
regarding the relevant evidence of record. Rather, she simply stated
that the April 22, 1986 claim was granted. Decision and Order at 14.
As a general rule, once claimant's entitlement to benefits has been
demonstrated, the date for commencement of those benefits is determined
by the date of onset, i.e., the month in which the occupational
pneumoconiosis progressed to the stage of total disability. 20 C.F.R.
§§725.503, 727.302; Edmiston v. F & R Coal Co., 14 BLR
1-710 (1990). If the date of onset is not ascertainable from the medical
evidence of record, then benefits commence with the month during which
the claim was filed, unless there is evidence, which the administrative
law judge finds credible, establishing that claimant was not totally
disabled at some point subsequent to his filing date. See Green
v. Director, OWCP, 790 F.2d 1118, 9 BLR 2-32 (4th Cir. 1986); see
also Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600, 12 BLR
2-178 (3d Cir. 1989); Lykins v. Director, OWCP, 12 BLR 1-181
(1989). Inasmuch as the administrative law judge failed to render
specific findings regarding the date of onset, we vacate her onset
determination and hold that, if reached on remand, specific findings
regarding the date of onset must be made. Id.
Accordingly, the administrative law judge's Decision and Order After
Remand Awarding Benefits is affirmed in part, vacated in part and the
case is remanded to the administrative law judge for further
consideration consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) Claimant filed his initial claim for benefits on
September 29, 1980. Director's Exhibit 1. This claim was denied by the
district director on March 9, 1981. Director's Exhibit 19.
Claimant filed his second, and current, claim on April 22, 1986,
which was denied by the district director on December 2, 1986.
Director's Exhibits 2, 31. The case was forwarded to the Office of
Administrative Law Judges. By Order of Remand, Administrative Law Judge
Robert L. Hillyard remanded the case to the district director for
evaluation pursuant to the Board's decision in Lukman v. Director,
OWCP, 11 BLR 1-71 (1988)(en banc). The district director
found that claimant failed to establish a material change in conditions
and denied benefits on February 24, 1989. Claimant appealed this denial
to the Board. In order to comport with Lukman v. Director, OWCP,
896 F.2d 1248, 13 BLR 2-332 (10th Cir. 1990), the Board, by Order dated
April 19, 1990, remanded the case to the Office of Administrative Law
Judges and the case was assigned to Administrative Law Judge Robert S.
Amery.
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2) We reject employer's contention that claimant is
precluded from establishing causation pursuant to 20 C.F.R.
§718.204(b) because of his retirement from coal mine employment
occurred only after he suffered a knee injury, inasmuch as this argument
was addressed and rejected in the Board's 1995 Decision and Order,
see Ray, BRB No. 94-2255 BLA, slip op. at 3, 7, therefore,
law of the case doctrine controls. Gillen v. Peabody Coal Co., 16
BLR 1-22 (1991); Cochran v. Consolidation Coal Co., 12 BLR 1-136
(1989).
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NOTE: This is an UNPUBLISHED BLA Document.
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