BRB No. 98-0817 BLA
NOAH W. VANDYKE )
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Claimant-Respondent )
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v. )
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FAITH COAL COMPANY ) DATE ISSUED:08/17/1999
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and )
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OLD REPUBLIC INSURANCE COMPANY )
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Employer/Carrier- )
Petitioners )
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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 on Remand of Daniel F. Sutton,
Administrative Law Judge, United States Department of Labor.
Bobby S. Belcher, Jr. (Wolfe & Farmer), Norton, Virginia, for claimant.
W. William Prochot (Arter & Hadden, LLP), Washington, D.C., for
employer.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order on Remand (86-BLA-4122) of
Administrative Law Judge Daniel F. Sutton 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). This case
is before the Board for the third time. Initially, Administrative Law Judge John
H. Bedford found the x-ray evidence sufficient to invoke the interim presumption
pursuant to 20 C.F.R. §727.203(a)(1), but concluded that the evidence of
record established rebuttal of the presumption pursuant to Section 727.203(b)(2).
Accordingly, he denied benefits.
Pursuant to claimant's appeal, the Board affirmed as unchallenged the
administrative law judge's invocation finding pursuant to Section 727.203(a)(1),
but vacated his finding that the evidence established that the miner does not
suffer from a totally disabling respiratory impairment pursuant to Section
727.203(b)(2) because it was insufficient to establish rebuttal of the presumption
under Sykes v. Director, OWCP, 812 F.2d 890, 10 BLR 2-95 (4th Cir. 1987).
Vandyke v. Faith Coal Co., BRB No. 91-0490 BLA (Feb. 25, 1993)(unpub.). The
Board concluded, however, that a remand was not required because the medical
opinions relied upon by the administrative law judge at Section 727.203(b)(2) also
established Section 727.203(b)(3) rebuttal as a matter of law by proving the
absence of any respiratory or pulmonary impairment. Vandyke, slip op. at 3.
Accordingly, the Board affirmed the administrative law judge's Decision and Order
denying benefits.
Pursuant to claimant's appeal, the United States Court of Appeals for the
Fourth Circuit vacated the Board's decision. Vandyke v. Director, OWCP, No.
93-1465 (4th Cir., Feb. 28, 1995)(unpub.). The Fourth Circuit court held that,
with the exception of Dr. Fino, none of the physicians whose reports the
administrative law judge relied upon in finding subsection (b)(2) rebuttal found
the absence of any respiratory or pulmonary impairment whatsoever, as required
under Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR 2-299 (4th Cir. 1994),
and therefore, their reports did not establish subsection (b)(3) rebuttal as a
matter of law. The court concluded that because the reports of Drs. Stewart and
Endres-Bercher could ultimately support a finding of subsection (b)(3) rebuttal
under Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 7 BLR 2-72 (4th Cir.
1984), remand was required. The court also held, citing Malcomb v. Island Creek
Coal Co.,15 F.3d 364, 18 BLR 2-113 (4th Cir. 1994), that because Dr. Fino was
a non-examining physician, his opinion could not establish subsection (b)(3)
rebuttal unless the administrative law judge found that his conclusions had also
been addressed by an examining physician. Accordingly, the court remanded the case
for further consideration.
On remand, Administrative Law Judge Charles P. Rippey found that rebuttal of
the presumption was not established pursuant to Section 727.203(b)(3) and awarded
benefits. However, in reaching this conclusion he failed to consider all of the
relevant evidence and improperly rejected certain medical opinions as biased.
Consequently, upon consideration of employer's appeal of the award, the Board
vacated the administrative law judge's findings and remanded the case for him to
reconsider subsection (b)(3) rebuttal. Vandyke v. Faith Coal Co., BRB No.
96-0882 BLA (Apr. 15, 1997)(unpub.). Employer also argued that the administrative
law judge on remand should also reconsider invocation at Section 727.203(a)(1), but
the Board concluded that employer provided no reason to disturb Judge Bedford's
previously-affirmed finding of subsection (a)(1) invocation. Therefore, the Board
remanded the case for the administrative law judge to reconsider only subsection
(b)(3) rebuttal.
Because Judge Rippey is no longer with the Office of Administrative Law
Judges, on remand the case was reassigned, without objection, to Judge Sutton, who
found that employer's medical opinions could not establish subsection (b)(3)
rebuttal because they failed to prove the absence of any respiratory or pulmonary
impairment and merely stated that claimant is not totally disabled. Additionally,
in response to employer's request to reconsider subsection (a)(1) invocation, the
administrative law judge stated that he was bound by the Board's mandate and
therefore could not revisit the issue. However, in a footnote, the administrative
law judge found that assuming arguendo that invocation should be
reconsidered, a preponderance of the most probative recent x-ray readings
established the existence of pneumoconiosis, thereby invoking the interim
presumption pursuant to Section 727.203(a)(1). Accordingly, he awarded benefits.
On appeal, employer contends that the administrative law judge failed to apply
the proper rebuttal test at Section 727.203(b)(3). Employer further asserts that
the administrative law judge erred in finding that Dr. Fino did not state that
there was no respiratory or pulmonary impairment of any kind. Additionally,
employer argues that Judge Bedford's subsection (a)(1) invocation finding is
plainly erroneous and would work a manifest injustice if allowed to stand, and
alleges that the current administrative law judge made factual errors in his
analysis of the x-ray evidence on remand that preclude affirmance of his subsection
(a)(1) invocation finding. Claimant responds, urging affirmance, and the Director,
Office of Workers' Compensation Programs (the Director), has declined to
participate in this 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 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).
Upon consideration of the administrative law judge's Decision and Order on
Remand, the administrative record as a whole, and the pleadings submitted by the
parties, we are unable to conclude that the award of benefits is supported by
substantial evidence and that it accords with applicable law. Accordingly, we
vacate the Decision and Order on Remand and remand this claim to the administrative
law judge for further consideration.
Employer contends that the administrative law judge failed to consider at
Section 727.203(b)(3) whether employer's experts ruled out a connection between
claimant's total disability and his coal mine employment by attributing his
pulmonary problems to heart disease. Employer's Brief at 15-16. This contention
has merit.
To rebut the presumption under Section 727.203(b)(3), employer must rule out
any causal connection between the miner's total disability and his coal mine
employment. Lane Hollow Coal Co. v. Director, OWCP [Lockhart], 137 F.3d 799,
804, 21 BLR 2-302, 2-313-14 (4th Cir. 1998); Bethlehem Mines Corp. v.
Massey, 736 F.2d 120, 123, 7 BLR 2-72, 2-80 (4th Cir. 1984). "[A] causal
connection can be 'ruled out' if positive evidence demonstrates that the miner
suffers from no respiratory or pulmonary impairment of any kind, [citation
omitted], or if such evidence explains all of any impairment present and
attributes it solely to sources other than coal mine employment."
[Lockhart], 137 F.3d at 804, 21 BLR at 2-314 (emphasis supplied); see
Massey, supra.
Here, examining physician Dr. Endres-Bercher and reviewing physician Dr.
Stewart opined that claimant could return to his usual coal mine employment from
a respiratory standpoint, and stated that his pulmonary problems are due to
ischemic heart disease. Employer's Exhibits 1-3, 11, 12, 19. Because Dr. Stewart
found claimant's pulmonary symptoms to be consistent with heart disease, he added
that he would not attribute claimant's dyspnea or cough to smoking, chronic
obstructive pulmonary disease, or coal workers' pneumoconiosis. Employer's Exhibit
3 at 9. Dr. Fino reviewed all of the medical evidence of record and concluded that
the results of the pulmonary function studies, blood gas studies, and lung volume
tests indicated that claimant has no respiratory or pulmonary impairment.
Employer's Exhibit 10. Dr. Fino opined that claimant's complaints of shortness of
breath are not related to lung disease, and he appeared to believe that they are
due to heart disease, age, and deconditioning. Id.
The administrative law judge found that the opinions of Drs. Endres-Bercher
and Stewart were insufficient to establish subsection (b)(3) rebuttal because they
did not state that claimant has no impairment and because they merely opined that
claimant is not totally disabled. Decision and Order on Remand at 8. The
administrative law judge additionally found that Dr. Fino's opinion did not
establish rebuttal because he failed to state without equivocation that claimant
has no respiratory or pulmonary impairment, and even assuming that he did so state,
he failed to address the findings of examining physicians who diagnosed a
respiratory impairment. Id.
Regardless of whether or not employer's medical opinions state that claimant
has no impairment, or that he is not totally disabled,[1] the administrative law judge never considered whether the opinions
ruled out any causal connection by attributing claimant's pulmonary problems to
heart disease. See Massey, supra. Therefore, we must vacate the
administrative law judge's finding pursuant to Section 727.203(b)(3) and remand the
case for him to consider this aspect of subsection (b)(3) rebuttal.[2]
Additionally, on remand the administrative law judge should consider the
entirety of Dr. Fino's opinion and explain his findings regarding whether or not
Dr. Fino expressly found no respiratory or pulmonary impairment. The
administrative law judge found that Dr. Fino's opinion fell short of unequivocally
stating that there was no respiratory or pulmonary impairment because Dr. Fino
acknowledged the presence of mild hypoxia on certain blood gas studies but
classified it as clinically insignificant. Decision and Order on Remand at 8. The
administrative law judge was apparently unpersuaded by Dr. Fino's explanation that
the mild hypoxia did not rise to the level of an impairment, but as employer
contends, Employer's Brief at 16-18, did not explain why he rejected Dr. Fino's
explanation. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 536, 21
BLR 2-323, 2-335, 2-341 (4th Cir. 1998)(the administrative law judge must assess
a physician's reasoning); Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 441, 21 BLR 2-269, 2-275-76 (4th Cir. 1997)(same).
The administrative law judge offered a second reason for declining to credit
Dr. Fino's "no impairment" opinion, but we are unable to affirm it. The
administrative law judge added that even if Dr. Fino unequivocally stated that
there was no respiratory or pulmonary impairment, he failed to confront certain
findings by examining physicians. Decision and Order on Remand at 8.
Specifically, the administrative law judge cited Dr. Endres-Bercher's diagnosis of
a restrictive defect based on a lung volume study, Employer's Exhibit 2, and Dr.
Garzon's diagnosis of a pulmonary impairment related to smoking and coal dust
exposure. Director's Exhibit 21. However, as employer argues, the administrative
law judge failed to consider Dr. Endres-Bercher's later report in which he
retracted his diagnosis of restriction as based on invalid testing that had yielded
falsely low values. Employer's Brief at 19-20; Employer's Exhibit 11. With
respect to Dr. Garzon's diagnosis, employer contends that the administrative law
judge did not explain why he found Dr. Garzon's conclusions more credible than
those of Dr. Fino. Employer's Brief at 18-19. We believe that such an explanation
is warranted since Dr. Fino did in fact review and confront Dr. Garzon's findings,
stated that he disagreed with Dr. Garzon's diagnosis of a respiratory impairment,
and explained why he believed that the pulmonary function studies, blood gas
studies, and diffusion tests showed no impairment. Employer's Exhibit 10 at 4, 11-13; see Hicks, supra; Akers, supra. Therefore, the
administrative law judge should reconsider Dr. Fino's opinion and determine whether
he stated unequivocally that claimant has no respiratory or pulmonary impairment.
See Grigg, supra.
Pursuant to Section 727.203(a)(1), employer again argues that Judge Bedford's
invocation finding should be vacated. Employer's Brief at 20-23. In our prior
decision, we acknowledged that Judge Bedford's subsection (a)(1) finding violated
the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as
incorporated into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C.
§919(d) and 5 U.S.C. §554(c)(2), but held that employer neglected to
timely challenge the invocation finding the first time the case was before the
Board and presented no exception to the law of the case doctrine in its appeal.[3] [1997] Vandyke, slip op. at 3-4.
Therefore, we held that our prior affirmance of Section 727.203(a)(1) invocation
as unchallenged on appeal was controlling. Employer now cites our conclusion that
Judge Bedford's finding did not comport with the APA and argues that because his
finding was plainly erroneous, the Board should depart from the law of the case
doctrine as a matter of fairness.
The law of the case doctrine is a discretionary rule of practice intended to
promote finality. Williams v. Healy-Ball-Greenfield, 22 BRBS 234, 237
(1989)(Brown, J., dissenting). Upon further consideration of our application of
this principle in the prior appeal, we believe that we may not have adequately
considered that employer was the prevailing party in the first round of litigation.
Specifically, while employer as the respondent to claimant's appeal of the initial
denial might have challenged the administrative law judge's (a)(1) invocation
finding without having to file a cross-appeal, see King v. Tennessee
Consolidation Coal Co., 6 BLR 1-87, 1-90-92 (1983), its satisfaction with the
result may have understandably led it not to challenge (a)(1). In this context,
we note further that the law has changed significantly since 1990 to impose a far
greater duty of analysis and explanation than Judge Bedford faced. For example,
the administrative law judge must now conduct a qualitative analysis of the x-ray
evidence, see Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir.
1992), and may not relieve claimant of his burden of proof, see Director, OWCP
v. Greenwich Collieries [Ondecko], 512 U.S. 67, 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). Consequently, we conclude that under the
circumstances, the law of the case doctrine should have imposed no bar to
reconsideration of subsection (a)(1) invocation, and since we must apply the law
in effect at the time of the appeal, see Lynn v. Island Creek Coal Co., 12
BLR 1-146 (1989), we must vacate Judge Bedford's subsection (a)(1) invocation
finding.
We have reviewed Judge Sutton's invocation finding pursuant to Section
727.203(a)(1), but we are unable to affirm it. Judge Sutton admirably attempted
to conserve time and resources on remand by addressing the (a)(1) invocation issue,
but as employer contends and as is apparent from our review of the record, Judge
Sutton failed to consider all of the relevant evidence and inappropriately relied
upon the later-is-better principle, when there is no pattern of progression from
negative to positive over time in claimant's chest x-rays. See Adkins,
supra. Therefore, we must vacate Judge Sutton's finding pursuant to Section
727.203(a)(1).
On remand, the administrative law judge must consider whether the weight of
the chest x-ray evidence establishes invocation of the interim presumption pursuant
to Section 727.203(a)(1).[4] If he finds the
presumption invoked, he must consider whether employer's medical opinions establish
rebuttal thereof pursuant to Section 727.203(b)(3) under Massey,
Grigg, and Malcomb, supra.
Accordingly, the administrative law judge's Decision and Order on Remand
awarding benefits is vacated and the case is remanded for further consideration
consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) We agree that had Drs. Endres-Bercher and Stewart stated only that
claimant is not disabled, their reports would have been insufficient to meet the Massey "rule out" standard.
However, their opinions went beyond a mere conclusion of non-disability.
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2) We considered the administrative law judge's brief comment faulting Dr. Fino for failing
to identify a non-coal mine employment source for the mild hypoxia seen on some of claimant's blood gas studies.
Decision and Order at 8; Claimant's Brief at 6. This is the proper sort of inquiry under Massey, but the comment
deals with only one part of Dr. Fino's opinion and the administrative law judge did not explain why he rejected Dr. Fino's
explanation that the mild hypoxia was not an impairment. See discussion, infra. Therefore, and in light
of the definite need for a remand for reconsideration of the opinions of Drs. Endres-Bercher and Stewart at (b)(3), we do
not affirm the administrative law judge's treatment of Dr. Fino's opinion as adequate under Massey based solely
upon this one comment.
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3) We rejected employer's characterization of Judge Bedford's (a)(1) analysis as then
permissible "head counting" that was now prohibited by Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61
(4th Cir. 1992), and rejected employer's argument that Judge Bedford relied upon the true doubt rule. [1997]
Vandyke, slip op. at 3-4.
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4) In our last review of the record, we counted one hundred and six readings of twenty x-rays.
In our current review, we detected one hundred and three readings of twenty x-rays. Of those x-rays clearly read for the
purpose of detecting pneumoconiosis, thirty-eight were positive, fifty-eight were negative, and five were classified as
unreadable. Since a qualitative analysis of these readings will be required on remand, we trust that if the parties choose to
file briefs, they will see the need to summarize fully the x-ray readings and the physicians' radiological
qualifications.
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NOTE: This is an UNPUBLISHED BLA Document.
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