BRB No. 98-1382 BLA
PRIMITIVO GRANO
Claimant-Petitioner
v.
PITTSBURG & MIDWAY COAL MINING
COMPANY
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
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ISSUED:08/10/1999
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) DECISION AND ORDER
Appeal of the Decision and Order on Remand - Denial of Benefits of
Robert L. Hillyard, Administrative Law Judge, United States Department
of Labor.
Jonathan Wilderman (Wilderman & Linnet, P.C.), Denver, Colorado, for
claimant.
William C. Erwin, Raton, New Mexico, for employer.
Before: HALL , Chief Administrative Appeals Judge, SMITH, and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order on Remand - Denial of Benefits (93-BLA-0959) of Administrative Law Judge Robert L. Hillyard 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 relevant procedural history of this case is as follows: Claimant submitted
an application for benefits on December 2, 1980. Director's Exhibit 28. This
claim was denied by Administrative Law Judge Eric Feirtag in a Decision and
Order dated November 9, 1984, on the grounds that claimant did not establish the
existence of pneumoconiosis or that he was suffering from a totally disabling
respiratory or pulmonary impairment. Id.. Claimant appealed the denial
of benefits to the Board, but later withdrew his appeal. Id.. Claimant
filed a second claim for benefits on June 17, 1985. Id.. In a Decision
and Order dated March 13, 1990, Administrative Law Judge Ellin M. O'Shea treated
this claim as a request for modification pursuant to 20 C.F.R. §725.310 and
determined that the denial of benefits regarding the initial claim did not
contain a mistake in a determination of fact. Judge O'Shea then weighed all of
the evidence of record under the regulations set forth in 20 C.F.R. Part 718 and
found that claimant failed to establish the existence of pneumoconiosis pursuant
to 20 C.F.R. §718.202(a)(1)-(4) and failed to prove that he is totally
disabled pursuant to 20 C.F.R. §718.204(c)(1)-(4). Accordingly, benefits
were denied. Id.. Claimant took no further action until filing his third
claim for benefits on July 28, 1992. Director's Exhibit 1.
In his initial Decision and Order with respect to this claim,
Administrative Law Judge Robert L. Hillyard (the administrative law judge)
accepted the parties' stipulation to forty-one years of coal mine employment and
noted the presence of duplicate claims in the record. The administrative law
judge stated that inasmuch as the United States Court of Appeals for the Tenth
Circuit, within whose jurisdiction this claim arises, had not yet ruled on the
appropriate standard for determining whether a material change in conditions has
been established pursuant to 20 C.F.R. §725.309(d), he would apply the
standard adopted by the United States Courts of Appeals for the Third, Fourth,
and Sixth Circuits. See Labelle Processing Co. v. Swarrow, 72 F.3d 308,
20 BLR 2-76 (3d Cir. 1995); Lisa Lee Mines v. Director, OWCP [Rutter], 86
F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19
BLR 2-223 (4th Cir. 1995); Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR
2-10 (6th Cir. 1994). The administrative law judge determined that the newly
submitted evidence did not support a finding of pneumoconiosis under Section
718.202(a)(1)-(4) and denied benefits on the ground that claimant did not
demonstrate a material change in conditions.
Claimant appealed to the Board and argued that the evidence of record is
sufficient to establish a material change in conditions in accordance with the
holding of the United States Court of Appeals for the Tenth Circuit in
Wyoming Fuel Co. v. Director, OWCP [Brandolino], 90 F.3d 1502, 20 BLR 2-302 (10th Cir. 1996), a case decided subsequent to the issuance of the
administrative law judge's Decision and Order. Claimant also asserted that the
administrative law judge did not properly weigh the newly submitted x-ray
evidence pursuant to Section 718.202(a)(1) and did not properly consider the
newly submitted medical reports of record under Section 718.202(a)(4). The
Board rejected claimant's allegations of error under Section 718.202(a)(1) and
(a)(4), but vacated the administrative law judge's determination that claimant
failed to establish a material change in conditions pursuant to Section
725.309(d). Grano v. Pittsburg & Midway Coal Mining Co., BRB No. 96-1417
BLA (June 26, 1997)(unpub.). The Board remanded the case to the administrative
law judge with instructions to reconsider the material change issue in light of
Brandolino. Id.. The Board subsequently reaffirmed its holdings
in a Decision and Order on Reconsideration. Grano v. Pittsburg & Midway Coal
Mining Co., BRB No. 96-1417 BLA (Jan. 26, 1998)(unpub.).
On remand, the administrative law judge considered the newly submitted
evidence under the Brandolino standard and determined that it was
insufficient to establish a material worsening in claimant's condition with
respect to the existence of pneumoconiosis under Section 718.202(a)(1)-(4) and
total disability under Section 718.204(c)(1)-(4). The administrative law judge
concluded, therefore, that claimant did not establish a material change in
conditions pursuant to Section 725.309. Accordingly, benefits were denied.
Claimant argues on appeal that the administrative law judge did not properly
apply the holding in Brandolino and did not properly weigh the newly
submitted medical evidence under Sections 718.202(a)(1), 718.202(a)(4),
718.204(c)(1), (c)(2), and (c)(4). Employer has responded and urges affirmance
of the denial of benefits. The Director, Office of Workers' Compensation
Programs, has not filed a brief in this appeal.[1]
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).
Claimant initially contends that the administrative law judge did not
properly apply the Brandolino standard under Section 718.202(a)(1), as
the administrative law judge required claimant to submit x-ray interpretations
that were positive for pneumoconiosis, rather than interpretations that
demonstrated a worsening of claimant's condition. Claimant argues that inasmuch
as the newly submitted x-ray readings indicate a greater incidence of
parenchymal abnormalities consistent with pneumoconiosis, the administrative law
judge should have determined that claimant established a material worsening of
his condition. We disagree.
The United States Court of Appeals for the Tenth Circuit stated in
Brandolino that:
[I]n order to bring a duplicate claim, a claimant must prove for each
element that actually was decided adversely to the claimant in the
prior denial that there has been a material change in that condition
since the prior claim was denied. In order to meet the claimant's
threshold burden of proving a material change in a particular element,
the claimant need not go as far as proving that he or she now
satisfies the element. Instead, under the plain language of the
statute and regulations, and consistent with res judicata, the
claimant need show only that this element has worsened materially
since the time of the prior denial.
90 F3d at 1510, 20 BLR at 2-320 (footnotes omitted). The court further
indicated that a claimant could show a material worsening regarding the issue of
the existence of pneumoconiosis by comparing past and present x-rays and
demonstrating that the present x-rays reflect that "any conditions suggesting
that claimant has pneumoconiosis have become materially more severe since the
last claim was rejected." Id.. With respect to the issue of total
disability, the court noted that a claimant "might present more extreme blood
gas test results obtained since the prior denial to indicate that his or her
disability has become materially more severe since the last claim was rejected."
Id..
The newly submitted x-ray evidence in this case consists of Dr. James's 1/0
reading of an x-ray dated September 11, 1992, Dr. Sargent's 0/1 reading of the
same x-ray, and Dr. Repsher's 0/1 reading of an x-ray dated December 7, 1992.
Director's Exhibits 13, 17, 23. Dr. James's reading included a determination
that the opacities appeared in all six lung zones, while Dr. Sargent indicated
that opacities appeared in the mid and lower lung zones. Director's Exhibits
13, 17. Dr. Repsher identified opacities in the two lower right lung zones and
one mid left lung zone. Director's Exhibit 23. The x-ray interpretations
considered in the prior denial of benefits consisted of two 0/0 readings, two
0/1 readings, a 1/0 reading, a 1/1 reading, a 1/2 reading, and 5 readings in
which the physicians stated that there were no pleural or parenchymal
abnormalities consistent with pneumoconiosis. Director's Exhibit 28. With
respect to the interpretations of 0/1 or greater, opacities were identified in
the mid and lower right lung zones, the lower left lung zone, the four mid and
upper lung zones, and all six lung zones. Id..
Upon considering the newly submitted x-ray evidence, the administrative law
judge stated that:
Placing the greater weight on the interpretation by Dr. Sargent, the
most qualified reader, and on the majority of the readings which were
negative, I find that the x-rays show at most a reading of 0/1. This
is insufficient to show the existence of pneumoconiosis under
§718.202(a)(1). The readings before Judge Shea were
predominantly 0/0 and 0/1. Consequently, I find that the claimant has
not shown a material worsening by x-ray evidence.
Decision and Order on Remand at 7. Although the administrative law judge
indicated that the preponderance of the newly submitted x-ray evidence was not
positive for pneumoconiosis, contrary to claimant's contention, he did not base
his determination that a material worsening of claimant's condition was not
established upon his finding that the newly submitted x-ray evidence was
insufficient to establish the existence of pneumoconiosis. The administrative
law judge rationally concluded that the profusion of opacities seen on
claimant's newly submitted chest x-rays does not differ in significant respect
from the profusion observed on the x-rays considered in the prior denial.
Decision and Order on Remand at 7; Director's Exhibits 13, 17, 23, 28.
Moreover, the distribution of opacities observed in the different zones of
claimant's lungs on the newly submitted x-rays conforms to the distribution
noted on the previously considered x-rays. Director's Exhibits 13, 17, 23, 28.
We affirm, therefore, the administrative law judge's finding that claimant did
not establish a material worsening in his condition under Section 718.202(a)(1),
as it is supported by substantial evidence. See Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988); Dockins v. McWane Coal Co., 9 BLR 1-57
(1986).
Regarding Section 718.202(a)(4), the administrative law judge noted that
the Board affirmed his determination, in his prior Decision and Order, that Dr.
Repsher's opinion was entitled to greater weight than Dr. James's opinion on the
grounds that it was more thorough and better supported by the evidence of
record. Decision and Order on Remand at 7; see Grano, supra, slip
opinion at 4. The administrative law judge accorded more weight to Dr.
Repsher's opinion again, therefore, and found that claimant failed to establish
a material worsening of his condition regarding the existence of pneumoconiosis
pursuant to Section 718.202(a)(4). Decision and Order on Remand at 7. Claimant
maintains that inasmuch as pneumoconiosis, as defined in Section 718.201,
includes impairments related to dust exposure in coal mine employment, the
administrative law judge should have determined that the results of claimant's
newly submitted pulmonary function and blood gas studies demonstrated that
claimant's condition, with respect to the existence of pneumoconiosis, has
materially worsened. Claimant also argues that the administrative law judge
should have discredited Dr. Repsher's opinion under Section 718.202(a)(4) on the
ground that Dr. Repsher does not acknowledge that coal dust exposure can cause
an obstructive lung disease. These contentions are without merit.
When considering the newly submitted evidence relevant to the issue of
total disability under Section 718.204(c), the administrative law judge
acknowledged that the pulmonary function studies and the blood gas studies
supported a finding of a material worsening in claimant's pulmonary impairment
pursuant to Section 718.204(c)(1) and (c)(2). Decision and Order on Remand at
8; Director's Exhibits 10, 14, 23. In order for such an impairment to
constitute pneumoconiosis as defined in Section 718.201, however, the impairment
must be significantly related to, or substantially aggravated by, dust exposure
in coal mine employment. See 20 C.F.R. §718.201. The
administrative law judge acted within his discretion in giving more weight to
Dr. Repsher's opinion, that claimant's impairment is not related to dust
exposure in coal mine employment, on the grounds that is better documented and
more well reasoned than Dr. James's opinion. Decision and Order on Remand at 7;
Director's Exhibits 11, 12, 23; see Clark v. Karst-Robbins Coal Co., 12
BLR 1-149 (1989)(en banc); King v. Consolidation Coal Co., 8 BLR
1-262 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985). Concerning
Dr. Repsher's statements regarding the source of claimant's obstructive
impairment, contrary to claimant's suggestion, Dr. Repsher did not exclude the
possibility that coal dust exposure can cause an obstructive impairment. Dr.
Repsher merely explained that in light of the fact that claimant's obstruction
was reversible and his diffusing capacity was normal, claimant's impairment is
consistent with asthma, a congenital condition that is not related to coal dust
exposure.[2] Director's Exhibit 23; Hearing
Transcript at 38-47. The administrative law judge rationally concluded,
therefore, that the newly submitted medical opinions of record do not support a
finding of a material worsening in claimant's condition regarding the existence
of pneumoconiosis under Section 718.202(a)(4).
Inasmuch as the administrative law judge permissibly determined that
claimant did not establish a material worsening with respect to the existence of
pneumoconiosis, one of the elements decided adversely to claimant in the prior
denial, we affirm the administrative law judge's finding that claimant did not
establish a material change in conditions pursuant to Section 725.309(d). See
Brandolino, supra. Thus, we must also affirm the denial of benefits
under Part 718.
Accordingly, the administrative law judge's Decision and Order on Remand -
Denial of Benefits is affirmed
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)We affirm the administrative law judge's findings under 20
C.F.R. §§718.202(a)(2), (a)(3), and 718.204(c)(3), as they are not
challenged on appeal. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
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2)In light of our affirmance of the administrative law
judge's finding under 20 C.F.R. §725.309(d) and the denial of benefits, we
decline to address claimant's allegations regarding the administrative law
judge's findings under 20 C.F.R. §718.204(c)(1)-(4), as any error contained
therein is harmless. See Johnson v. Jeddo-Highland Coal Co., 12 BLR 1-53
(1988); Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
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NOTE: This is an UNPUBLISHED BLA Document.
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