BRB No. 98-1345 BLA
JOHN HENRY ELLISON )
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Claimant-Respondent )
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v. )
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CAMKER COAL COMPANY ) DATE ISSUED:08/13/1999
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and )
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OLD REPUBLIC INSURANCE COMPANY )
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Employer/Carrier- )
Petitioner )
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CAROLINA WREN COAL PARTNERSHIP )
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Employer-Respondent )
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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 Thomas M. Burke,
Administrative Law Judge, United States Department of Labor.
Frederick K. Muth (Hensley, Muth, Garton and Hayes), Bluefield, West
Virginia, for claimant.
John D. Maddox (Arter & Hadden, LLP), Washington, D.C., for employer
CamKer Coal Corp. and its carrier.
Mary Rich Maloy (Jackson & Kelly), Charleston, West Virginia, for
employer Carolina Wren Coal Partnership.
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: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
HALL, Chief Administrative Appeals Judge:
Employer CamKer Coal Corporation (Camker) and its carrier appeal the Decision
and Order on Remand (95-BLA-0880) of Administrative Law Judge Thomas M. Burke
awarding benefits on a claim filed pursuant to the provisions of Title IV of the
Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901
et seq. (the Act). This case is on appeal before the Board for a second
time. In her initial Decision and Order issued on November 7, 1995, Administrative
Law Judge Edith Barnett determined that Wren Coal Company (Wren) was liable for
payment of benefits, based on its status as the general partner of Carolina Wren
Coal Partnership (CWCP), claimant's last employer and the responsible operator
herein. Judge Barnett further found that if Wren was no longer in business or was
financially incapable of paying benefits, its corporate officers, Nicholas Hobbie
and Joseph Brush, would be personally liable for payment unless they were also
unable to assume liability, in which event CamKer would be the responsible operator
herein pursuant to 20 C.F.R. §§725.492 and 725.493. Judge Barnett
credited claimant with 10.6 years of qualifying coal mine employment, and
adjudicated the claim, filed on December 20, 1990, pursuant to the provisions at
20 C.F.R. Part 718. Judge Barnett found that the evidence established the
existence of pneumoconiosis arising out of coal mine employment pursuant to 20
C.F.R. §§718.202(a)(4), 718.203(b), and total disability due to
pneumoconiosis pursuant to 20 C.F.R. §718.204. Accordingly, benefits were
awarded.
On appeal, the Board remanded the case to the administrative law judge for
further consideration of the responsible operator issue. Specifically, the Board
instructed the administrative law judge to identify the proper responsible operator
after determining whether CWCP, Wren and Camker were capable of assuming liability
through any of the means set out at 20 C.F.R. §725.492(a)(4)(I)-(iii), and
whether Messrs. Hobbie and Brush were financially capable of assuming liability for
the payment of benefits. The Board vacated Judge Barnett's findings regarding the
length of coal mine employment, and instructed her on remand to explain the basis
for her calculations. The Board also vacated Judge Barnett's finding that the
evidence established the existence of pneumoconiosis at Section 718.202(a)(4),
because she provided invalid reasons for crediting the opinion of Dr. Rasmussen and
discounting the opinions of Drs. Tuteur, Hippensteel and Fino; she erroneously
found that Dr. Zaldivar's opinion supported a finding of pneumoconiosis; and she
failed to consider whether several negative readings of the x-rays relied upon by
Drs. Qazi and Rasmussen in diagnosing pneumoconiosis called into the question the
reliability of their opinions. Lastly, the Board vacated Judge Barnett's finding
of total respiratory disability pursuant to Section 718.204(c)(4), as she provided
an invalid reason for discrediting the opinions of Drs. Fino, Hippensteel and
Zaldivar, and failed to consider the opinions of Drs. Tuteur and Endres-Bercher.
The Board instructed the administrative law judge on remand to reweigh the medical
opinions at Section 718.204(c)(4); to weigh all the relevant evidence together,
both like and unlike, in considering whether claimant established total respiratory
disability pursuant to Section 718.204(c); and to separately determine whether
claimant's disability was due to pneumoconiosis pursuant to Section 718.204(b).
Ellison v. CamKer Coal Corp., BRB Nos. 96-0444 BLA and 96-0444 BLA-A (Feb.
21, 1997)(unpublished).
On remand, this case was assigned to Administrative Law Judge Thomas M. Burke.
In a Decision and Order issued on June 22, 1998, the administrative law judge found
that CWCP, Wren and its officers were unable to assume liability, and thus CamKer
was properly designated the responsible operator herein. The administrative law
judge credited claimant with 9.75 years of qualifying coal mine employment, and
found that the evidence established the existence of pneumoconiosis arising out of
coal mine employment pursuant to Sections 718.202(a)(4), 718.203(c), and total
disability due to pneumoconiosis pursuant to Section 718.204. Consequently, the
administrative law judge awarded benefits.
In the present appeal, Camker challenges the administrative law judge's
findings pursuant to Sections 718.202(a)(4), 718.204(b), (c), and contends that a
transfer of liability to the Black Lung Disability Trust Fund (Trust Fund) is
appropriate. Claimant responds, urging affirmance of the award of benefits. The
Director, Office of Workers' Compensation Programs (the Director), has filed a
limited response, arguing that transfer of liability to the Trust Fund is not
warranted under the facts of this case. CWCP responds, asserting that the parties,
through their failure to raise the issue in a petition for review, have waived the
issue of liability on the part of CWCP or its limited partners. Camker replies to
the responses of CWCP and the Director, reasserting its argument that a transfer
of liability to the Trust Fund is appropriate.
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 by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Camker initially maintains that it would not be the responsible operator
herein if, during the approximate seven-year period that CWCP was an operator and
failed to comply with the provisions at Section 725.492(a)(4), the Director had
discharged his duty of ensuring that CWCP was capable of assuming liability for the
payment of any black lung award through enforcement, as required by 20 C.F.R.
§725.601, of the penalty provisions at 20 C.F.R. §§725.495 and
725.620. Camker thus contends that its due process rights have been violated,
mandating a transfer of liability to the Trust Fund. The Director counters that
Congress intended to impose liability on operators rather than the Trust Fund to
the maximum extent feasible, see 26 U.S.C. §9501(d)(1)(B); Director,
OWCP v. Oglebay Norton Co. [Goddard], 877 F.2d 1300, 12 BLR 2-357 (6th Cir.
1989); and maintains that enforcement of the penalty provisions for CWCP's and
Wren's failure to maintain black lung benefits insurance, or to be approved as
self-insurers, is not mandatory, but within the Director's discretion. The
Director asserts that the broad authority which Congress granted to the Secretary
in identifying responsible operators, see 30 U.S.C. §932(h),
implemented at 20 C.F.R. §§725.491-725.493, when read together with the
penalty provisions at Sections 725.495 and 725.620, results in the availability of
various options to the Director, who may select the option he deems will best
accomplish the purposes of the Act, based on factors within his expertise as
administrator of the Act. See 20 C.F.R. §725.601(c).
While we sympathize with Camker's position and agree that it is the Director's
responsibility, as administrator of the Act, to enforce the penalty provisions
outlined in the regulations against uninsured coal companies, thereby providing an
incentive to obtain and maintain black lung insurance, the language of the
applicable regulations is permissive,[1] thus
enforcement of the penalty provisions at Sections 725.495 and 725.620 is
discretionary rather than mandatory. See Lester v. Mack Coal Co., 21 BLR
1-126 (1999)(recon. en banc)(McGranery, J., dissenting). Consequently, the
Director's election not to pursue penalties against CWCP and Wren for their failure
to maintain adequate insurance does not mandate the dismissal of Camker as the
responsible operator and transfer of liability to the Trust Fund. Inasmuch as
Camker has not otherwise challenged the administrative law judge's findings
pursuant to Sections 725.492 and 725.493, we affirm his finding that Camker is
properly designated the responsible operator thereunder.
Turning to the merits, Camker contends that the administrative law judge erred
in failing to perform a de novo analysis and weighing of all relevant
evidence, instead relying in part on Judge Barnett's prior findings of fact and
conclusions of law, in contravention of 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), 30 U.S.C. §932(a), and pertinent case
law, see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir.
1998). We agree. In finding the evidence sufficient to establish the existence
of pneumoconiosis at Section 718.202(a)(4), the administrative law judge merely
addressed the medical opinions which the Board previously identified as being
incorrectly weighed, and did not address the opinion of Dr. Endres-Bercher or weigh
the opinion of Dr. Zaldivar.[2] The
administrative law judge also did not acknowledge the relative qualifications of
the physicians except in the area of tuberculosis.[3] Moreover, the administrative law judge failed to provide valid
reasons for crediting the opinion of Dr. Rasmussen over the contrary opinions of
Drs. Fino, Hippensteel and Tuteur. In evaluating these conflicting opinions, the
administrative law judge found that Dr. Rasmussen's opinion, that claimant suffered
from a blood gas impairment and an exercise intolerance which was most likely
caused by pneumoconiosis in view of claimant's occupational history and the pattern
of impairment, was the most persuasive because it was based strictly on medical
evidence independent of x-ray evidence, whereas Drs. Fino, Hippensteel and Tuteur
either disagreed as to the cause of impairment or were unable to determine its
cause. Decision and Order on Remand at 7-8. Drs. Fino, Hippensteel and Tuteur,
however, agreed that claimant did not have pneumoconiosis and that his impairment
was not caused by dust exposure in coal mine employment, and the physicians were
not required to determine and agree on an alternative cause of the impairment;
rather, the administrative law judge was required to assess the quality of the
physicians' reasoning and documentation in support of their conclusions as to
whether or not claimant suffered from pneumoconiosis as defined at 20 C.F.R.
§718.201. See Hicks, supra; Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997); Underwood v. Elkay
Mining, Inc., 105 F.3d 946, 21 BLR 2-23 (4th Cir. 1997). The administrative
law judge provided a similarly flawed rationale for his credibility determinations
on the issue of disability causation at Section 718.204(b). See Decision and
Order on Remand at 11. We, therefore, vacate the administrative law judge's
findings pursuant to Sections 718.202(a)(4) and 718.204(b), and remand this case
for reconsideration of all relevant evidence thereunder.
Camker additionally challenges the administrative law judge's finding of total
respiratory disability at Section 718.204(c)(4). In evaluating the evidence on the
issue of total respiratory disability, the administrative law judge determined that
claimant's usual coal mine employment involved heavy manual labor, and found that
because all four blood gas studies performed during exercise produced qualifying
values, claimant suffered from an exercise intolerance. The administrative law
judge then gave "dispositive weight to those doctors who opined that the claimant's
exercise impairment renders him unfit to return to the heavy manual labor involved
in his previous employment," as bolstered by the qualifying results of the blood
gas studies on exercise. Decision and Order on Remand at 10. The administrative
law judge, however, did not provide any reason for discounting the opinions of Drs.
Endres-Bercher, Fino, Hippensteel, Zaldivar and Tuteur that claimant retains the
respiratory capacity to perform his usual coal mine employment.[4] Consequently, we vacate the administrative law
judge's findings pursuant to Section 718.204(c)(4) for reconsideration and weighing
of the medical opinions on remand, and a weighing of all relevant evidence
together, both like and unlike, in considering whether claimant has established
total respiratory disability. See Fields v. Island Creek Coal Co., 10 BLR
1-19 (1987).
Accordingly, the administrative law judge's Decision and Order on Remand
awarding benefits is affirmed in part and vacated in part, and this case is
remanded for further consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
I Concur: ROY P. SMITH
Administrative Appeals Judge
BROWN, Administrative Appeals Judge, concurring in the result only:
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1) Section 725.495(c) provides that "[a]n action may be commenced under this
section at any time after information supporting such action becomes known to the Director." 20 C.F.R.
§725.495(c)(emphasis added). Similarly, Section 725.495(e) provides that "[a]ny penalty owed under this
section shall be paid to the fund and may be enforced by the Secretary on behalf of the fund as
appropriate." 20 C.F.R. §725.495(e)(emphasis added).
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2) The administrative law judge properly found that Dr. Zaldivar's diagnosis of
pulmonary fibrosis did not support a finding of pneumoconiosis, Decision and Order on Remand at 8-9, but failed
to weigh Dr. Zaldivar's opinion, that claimant did not have pneumoconiosis and that Dr. Rasmussen's conclusions
were incorrect, Employer's Exhibits 1, 62, with all other relevant evidence at Section 718.202(a)(4).
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3) Camker correctly asserts that the administrative law judge did not acknowledge Dr.
Fino's expertise in the area of tuberculosis, as one of the primary diseases within the board certification specialty
of pulmonology, or Dr. Fino's testimony that he frequently treated tuberculosis patients, Employer's Exhibit 70
at 30.
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4) The Board previously held that Judge Barnett erred in discrediting the opinions of
Drs. Fino, Hippensteel and Zaldivar because they did not find the qualifying blood gas study values supportive
of a finding of total disability. On remand, Judge Burke summarized the physicians' ultimate conclusions, but did
not assess the quality of their reasoning or provide a reason for rejecting their conclusions. See Hicks,
supra; Akers, supra.
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NOTE: This is an UNPUBLISHED BLA Document.
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