BRB Nos. 98-1051 BLA
and 98-1051 BLA-A
GEORGE E. MARCUM )
)
Claimant-Petitioner )
Cross-Respondent )
v. )
)
CLAUDE SMITH TRUCKING )
)
Employer-Respondent )
)
and )
)
CLAY TRANSPORT CORPORATION ) DATE ISSUED:08/31/1999 8/31/99
)
and )
)
LIBERTY MUTUAL INSURANCE )
CORPORATION )
)
Employer/Carrier- )
Respondents )
Cross/Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Edmond Collett, Hyden, Kentucky, for claimant.
W. Barry Lewis (Lewis & Lewis), Hazard, Kentucky, for Clay Transport
Corporation.
Edward Waldman (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Jeffrey J. Bernstein, Counsel for Administrative
Litigation and Legal Advice), Washington, D.C., for the Director, Office of
Workers' Compensation Programs, the United States Department of Labor.
Before: HALL, Chief Administrative Appeal Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals, and Clay Transport Corporation (employer) cross-appeals, the
Decision and Order Denying Benefits (98-BLA-0035) of Administrative Law Judge
Thomas F. Phalen, Jr., 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). Claimant filed his first claim on March 13,
1987. The district director denied benefits on the ground that claimant failed to
establish any of the elements of entitlement. The district director also
identified Claude Smith Trucking, claimant's most recent coal mine employer,
and employer, claimant's next most recent coal mine employer, as potentially
responsible operators. Director's Exhibit 27. Employer responded to the
notice of the claim, contending that it was not the responsible operator.
Claude Smith Trucking did not respond. The case was subsequently referred
to the Office of Administrative Law Judges (OALJ) for a formal hearing. At
the hearing on June 29, 1989, Judge Huddleston stated that in view of the
failure of Claude Smith Trucking to appear and contest any of the issues in
the case, Claude Smith Trucking had waived its right to contest any issues.
Judge Huddleson subsequently issued an Order dismissing the claim and
dismissing employer as a putative responsible operator. In his Order, Judge
Huddleson stated that good cause had not been shown for claimant's failure
to attend the formal hearing. Judge Huddleston also found that employer
must be dismissed as the responsible operator, as Claude Smith was in
default, having failed to ever respond to the district director's initial
findings or notice of hearing. Claimant appealed to the Board, which affirmed
both the dismissal of claimant's claim and the dismissal of employer as responsible
operator.[1] See Marcum v. Claude Smith
Trucking, BRB No. 90-0976 BLA (Feb. 26, 1992) (unpublished). Claimant
subsequently filed a request for modification, which the district director denied
on June 13, 1993. It appears that claimant took no further action with respect to
this claim.
Claimant filed the present claim on March 15, 1996. The district director
identified Claude Smith Trucking as the responsible operator, and retained employer
as the secondary responsible operator. The claim was denied by the district
director and claimant requested a hearing before an administrative law judge. In
an Order of Remand issued on April 29, 1997, Administrative Law Judge Donald W.
Mosser noted that employer had filed a motion to be dismissed as a party or to
remand the case to the district director for further development of the evidence
on the issue of responsible operator. Judge Mosser also noted that Claude Smith
Trucking had filed a motion to continue the hearing or to remand the case for
further development. Thus, Judge Mosser canceled the hearing and remanded the case
to the district director for the development of additional evidence on the
responsible operator issue.
After the development of additional medical evidence, a hearing was held
before the administrative law judge on February 11, 1998.[2] The administrative law judge found that because Claude Smith Trucking
was out of business, had no assets, and was uninsured at the time of claimant's
employment, it could not be the responsible operator. Thus, the administrative law
judge found that employer was the responsible operator in this case. 20 C.F.R.
§§725.492, 725.493. The administrative law judge noted that the instant
case involved a duplicate claim and considered whether the newly submitted evidence
was sufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309 under the standard enunciated in Sharondale Corp. v. Ross, 42
F.3d 993, 19 BLR 2-10 (6th Cir. 1994). After crediting claimant with twenty-four
years of coal mine employment, the administrative law judge found the evidence
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4). The administrative law judge further found that the newly
submitted evidence was insufficient to establish total disability at 20 C.F.R.
§718.204(c)(1)-(4). Accordingly, the administrative law judge concluded that
the evidence was insufficient to establish a material change in conditions under
Ross and denied benefits.
On appeal, claimant contends that the administrative law judge erred in
evaluating the x-ray evidence of record and the medical opinion evidence of record
under Section 718.202(a)(1) and (a)(4) and Section 718.204(c)(4). Employer
responds, urging affirmance of the denial of benefits. Employer also cross-appeals, challenging the administrative law judge's finding that it is the
responsible operator. The Director, Office of Workers Compensation Programs,
responds to employer's cross-appeal, agreeing with employer that the administrative
law judge erred in finding that Claude Smith Trucking was out of business and
without assets, and contending that Claude Smith Trucking should be designated the
responsible operator.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational and are consistent with applicable law, they are binding
upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Section 725.309 provides that a duplicate claim is subject to automatic denial
on the basis of the prior denial unless there is a determination of a material
change in conditions since the denial of the prior claim. 20 C.F.R.
§725.309(d). The United States Court of Appeals for the Sixth Circuit, under
whose jurisdiction the instant case arises, has held that in considering whether
claimant has established a material change in conditions, the administrative law
judge must consider all of the newly submitted evidence, favorable and unfavorable,
and determine whether claimant has proven at least one element of entitlement
previously adjudicated against him. See Ross, supra.
In challenging the administrative law judge's finding pursuant to Section
718.202(a)(1), claimant generally contends that the administrative law judge erred
in his consideration of the newly submitted x-ray evidence by relying automatically
upon the qualification of the readers and the preponderance of the negative
readings. Claimant also states that the administrative law judge "may have
selectively analyzed' the x-ray evidence." Claimant's Brief at 5. Claimant's
arguments are without merit. The administrative law judge properly found that all
of the negative x-ray readings were by highly qualified readers, while the only
positive reading was by Dr. Bushey, who has no special qualifications. Director's
Exhibit 29 at 184. Thus the administrative law judge permissibly found that
claimant failed to establish the existence of pneumoconiosis at Section
718.202(a)(1).[3] See Woodward v.
Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993); Robert v.
Bethlehem Mines Corp., 8 BLR 1-211 (1985).
In challenging the administrative law judge's finding that the newly submitted medical opinion evidence
was insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(4), claimant argues that the
administrative law judge did not adequately explain his reason for rejecting the reports of Drs. Baker and
Bushey.[4] Claimant also maintains that these opinions are well
reasoned and well documented, and would have been adequate to support a finding of pneumoconiosis. The
administrative law judge noted that Drs. Broudy, Dahhan, and Fino indicated that claimant does not have
pneumoconiosis. Decision and Order at 17; Director's Exhibit 29 at 138, 144; Employer's Exhibit 1. The
administrative law judge determined that Dr. Broudy's opinion was entitled to less weight because he did not
identify the cause of claimant's dyspnea. Decision and Order at 17; Director's Exhibit 29 at 144. The
administrative law judge also noted that Dr. Dahhan failed to explain why he ruled out coal dust exposure as
a possible cause of claimant's chronic obstructive lung disease. Decision and Order at 17; Director's Exhibit
29 at 144. The administrative law judge concluded that claimant did not establish the existence of
pneumoconiosis by a preponderance of the medical evidence, as only Drs. Baker and Bushey found any
evidence of pneumoconiosis, while Drs. Broudy, Dahhan, and Fino indicated that claimant is not suffering from
the disease. Decision and Order at 17.
Under the Administrative Procedure Act (APA), 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), the administrative
law judge is required, in his role as a fact-finder, to weigh all of the relevant medical evidence of record and
render findings, including the underlying rationale, with respect to this evidence. See Hall v. Director,
OWCP, 12 BLR 1-80 (1988). Regarding the medical opinions of record, if the physicians' respective
conclusions are conflicting, the administrative law judge must resolve the conflict and set forth an explanation
for his determination. See Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989). In order
to accomplish this task, the administrative law judge should consider factors that tend to either bolster, or render
suspect, the credibility of the medical reports of record. See Hutchens v. Director, OWCP, BLR
1-16 (1985). In the present case, the administrative law judge's discussion of the evidence does not satisfy the
APA, inasmuch as the administrative law judge noted factors which diminished the reliability of the opinions
of Drs. Dahhan and Broudy, but then treated them as equal in probative weight to the opinions of Drs. Baker
and Bushey. See Lafferty, supra; Hutchens, supra. Because the
administrative law judge did not adequately explain his relative weighing
of the medical opinions pertinent to the issue of the existence of
pneumoconiosis, his findings under Section 718.202(a)(4) are vacated and the
case is remanded to the administrative law judge for reconsideration of the
opinions of Drs. Baker, Bushey, Dahhan, Broudy, and Fino.
Turning to the issue of total disability, claimant also asserts that the
administrative law judge erred in failing to find Dr. Baker's opinion
sufficient to establish total disability under Section 718.204(c)(4). The
administrative law judge permissibly found Dr. Baker's assessment of
moderate to moderately severe impairment insufficient to establish that
claimant was totally disabled to perform his last coal mine work as a coal
truck driver, which the administrative law judge found was not very
strenuous. See McMath v. Director, OWCP, 12 BLR 1-6 (1988); Decision
and Order at 19; Director's Exhibit 7. We, therefore, affirm the
administrative law judge's determination that Dr. Baker's opinion was
insufficient to establish total respiratory disability pursuant to Section
718.204(c)(4).
We also hold that it was unnecessary for the administrative law judge
to consider evidence relating to claimant's age, education and work
experience since these factors are not relevant to establishing total
disability under Section 718.204(c)(4). See generally Fields v. Island
Creek Coal Co., 10 BLR 1-17 (1989). Lastly, there is no merit in
claimant's suggestion that total disability should be inferred due to the
time which has passed since he was diagnosed with pneumoconiosis, as it is
claimant's affirmative burden to introduce evidence establishing that he is
totally disabled. See Gee v. W.G. Moore & Sons, 9 BLR 1-4
(1986)(en banc). Noting that claimant raises no further allegations
of error on the part of the administrative law judge in finding that the
newly submitted medical opinion evidence was insufficient to establish total
respiratory disability pursuant to Section 718.204(c)(4), we affirm that
finding. See Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).[5]
In light of our decision to vacate the administrative law judge's
determination that the newly submitted medical opinion evidence was
insufficient to establish the existence of pneumoconiosis, we must also
vacate the administrative law judge's finding that claimant failed to
establish a material change in conditions pursuant to Section 725.309.
Ross, supra. On remand, should the administrative law judge find that
claimant has established a material change in conditions, he must consider
all of the evidence of record, both old and new, in considering entitlement
on the merits. Id.
On cross-appeal, employer contends that the administrative law judge
erred in finding that employer is the responsible operator. Employer argues
that the administrative law judge erred in revisiting the issue of
responsible operator since the Board had previously affirmed Judge
Huddleston's finding that Claude Smith Trucking is the responsible operator.
Employer also argues that the administrative law judge's finding that Claude
Smith Trucking has no assets is completely unsupported by the record. In
response, the Director agrees with employer that the record contains no
evidence to support the administrative law judge's finding that Claude Smith
Trucking is out of business and has no assets. Thus, the Director contends
that the administrative law judge erred in finding that employer was the
responsible operator, stating that the Board should hold that Claude Smith
Trucking is the responsible operator.
Subject to the provisions of 20 C.F.R. §725.493(a)(2) and (a)(3)
and provided that the conditions of 20 C.F.R. §725.492(a)(2)-(4) are
met, the operator or other employer 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). Section
725.492(a)(4) provides that in order for an operator to be liable for
benefits, the operator must be capable of paying benefits.
Initially, we disagree with employer's contention that the
administrative law judge was precluded from addressing the issue of
responsible operator in the instant duplicate claim.[6] See Sellards v. Director, OWCP, 17 BLR 1-77 (1993).
However, we agree with employer and the Director that the record is
presently devoid of evidence that establishes that Claude Smith Trucking is
out of business and incapable of assuming liability. We therefore vacate
the administrative law judge's finding that Claude Smith Trucking is not the
responsible operator because it is incapable of paying benefits and vacate
the administrative law judge's finding that employer is the responsible
operator. See generally Lester v. Mack Coal Co., 21 BLR 1-126 (1999)
(en banc)(McGranery, J., dissenting in part and concurring in
part). On remand, the administrative law judge should reconsider the
issue of responsible operator. 20 C.F.R. §§725.492, 725.493.
We note that it is within the discretion of the administrative law judge to
reopen the record for the submission of further evidence or to remand the
case to the district director for further evidentiary development.[7] See 20 C.F.R. §725.456(e);
Lester, supra.
Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed in part and vacated in part, and the case is remanded
for reconsideration consistent with this opinion.
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 Board held that Clay Transport Corporation
(employer) was not the responsible operator because it was not the coal
operator for which the miner had worked most recently for a period of one
year. See Marcum v. Claude Smith Trucking, BRB No. 90-0976 BLA (Feb.
26, 1992) (unpublished). On his employment history form, claimant indicated
that he worked for Claude Smith Trucking from 1981 to 1986 and worked for
employer from 1975 to 1980. Director's Exhibit 27(170).
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2)Claude Smith Trucking did not appear at the hearing.
In his brief to the administrative law judge, the Director, Office of
Workers' Compensation Programs (the Director), argued that employer was
properly named by the district director as a secondary responsible operator
and should be liable for any benefits awarded. The Director stated that
Claude Smith Trucking was unlikely to pay any benefits awarded, noting that
nothing was ever submitted by Claude Smith Trucking or by claimant regarding
the financial condition of that company or its officers.
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3) We affirm the administrative law judge's findings that the newly submitted evidence was insufficient
to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(2) and (a)(3) as unchallenged on
appeal. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4)Dr. Baker diagnosed chronic obstructive pulmonary disease due to coal dust
exposure and smoking. Director's Exhibit 7. The administrative law judge found that this opinion constituted
a diagnosis of legal pneumoconiosis. Decision and Order at 16. Dr. Bushey diagnosed pneumoconiosis,
Category 2/1. Director's Exhibit 29 at 183.
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5) As claimant has not specifically challenged the administrative law judge's findings at 20 C.F.R.
§718.204(c)(1)-(3), they are affirmed. Skrack, supra.
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6)In the Board's decision in claimant's prior claim, the Board held that employer
was not the responsible operator because it was not the employer that had employed the miner most recently
for a period of one year. Marcum v. Claude Smith Trucking, BRB No. 90-0976 BLA (Feb. 26,
1992) (unpublished). Subsequent to the Board's decision, the United States Court of Appeals for the Fourth
Circuit held in Director, OWCP v. Trace Fork [Matney], 67 F.3d 503, 19 BLR 2-290 (4th Cir.
1995), that the Board had erred in holding that an employer can qualify as a responsible operator under 20
C.F.R. §725.493(a)(4) only if it also qualifies as a prior operator under §725.493(a)(2).
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7)The district director has referred to Mr. Claude Smith as the owner of Claude
Smith Trucking, but the record contains no evidence clarifying this position. Director's Exhibit 27(4); see
20 C.F.R. §725.491(c)(2)(I); Lester v. Mack Coal Co., 21 BLR 1-126 (1999)(en
banc)(McGranery, J., dissenting in part and concurring in part). Pursuant to Section 725.491(c)(2)(I),
an individual may be held liable for benefits if identified as a sole proprietor, a partner in a partnership, or a
member of a family business. See Lester, supra.
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NOTE: This is an UNPUBLISHED BLA Document.
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