BRB No. 98-1471 BLA
CHARLES HARRIS )
)
Claimant-Respondent )
)
v. )
)
SHAMROCK COAL COMPANY, ) DATE ISSUED:08/12/1999
INCORPORATED )
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Phyllis L. Robinson, London, Kentucky, for claimant.
Ronald E. Gilbertson (Kilcullen, Wilson & Kilcullen), Washington, D.C.,
for employer.
Helen H. Cox (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.
PER CURIAM:
Employer appeals the Decision and Order (97-BLA-0611) of Administrative Law
Judge Thomas F. Phalen, Jr., 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). The administrative law
judge considered whether the evidence submitted since the prior denial of the claim
on the merits on April 15, 1996, see Director's Exhibit 88, established a
basis for modification pursuant to 20 C.F.R. §725.310 and 20 C.F.R. Part
718.[1] The administrative law judge found that
total disability, the basis of the prior denial, was established by the newly
submitted pulmonary function study and medical opinion evidence pursuant to 20
C.F.R. §718.204(c)(1) and (4), and therefore found a change in conditions
established pursuant to Section 725.310. The administrative law judge then
considered all the evidence of record and found that the existence of
pneumoconiosis was not established pursuant to 20 C.F.R. §718.202(a)(1)-(3),
but was established by the medical opinion evidence pursuant to 20 C.F.R.
§718.202(a)(4). Finally, the administrative law judge found total disability
due to pneumoconiosis was established by the medical opinion evidence of record
pursuant to 20 C.F.R. § 718.204(b). Moreover, the administrative law judge
found that no mistake of fact or law was established in Judge Jansen's prior
decision. Accordingly, the administrative law judge awarded benefits, from the
date of the filing of the claim in January, 1994. On appeal, employer contends
that the administrative law judge erred in finding total disability established
pursuant to Section 718.204(c)(1) and (4) and, therefore, a change in conditions
established pursuant to Section 725.310. In addition, employer contends that the
administrative law judge erred in finding the existence of pneumoconiosis
established pursuant to Section 718.202(a)(4), total disability due to
pneumoconiosis established pursuant to Section 718.204(b) and in awarding benefits
commencing from the date that the claim was filed. Finally, employer contends that
on modification, the instant case should have been assigned to the administrative
law judge who originally considered the claim on the merits. Claimant responds,
urging that the administrative law judge's Decision and Order awarding benefits be
affirmed. The Director, Office of Workers' Compensation Programs (the Director),
as a party-in-interest, responds, urging the Board to reject employer's contention
that on modification this case should have been assigned to the same administrative
law judge who had originally decided the case.
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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
Pursuant to Section 22 of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C. §922, as incorporated into the Act by 30 U.S.C. §932(a) and as
implemented by 20 C.F.R. §725.310, a party may request modification of a
denial on the grounds of a change in conditions or because of a mistake in a
determination of fact. The United States Court of Appeals for the Sixth Circuit,
within whose jurisdiction this case arises, has held, however, that if a claimant
merely alleges that the ultimate fact was wrongly decided, the administrative law
judge may, if he chooses, accept this contention and modify the final order
accordingly (i.e., "there is no need for a smoking gun factual error,
changed conditions or startling new evidence"), see Consolidation Coal Corp. v.
Worrell, 27 F.3d 227, 230, 18 BLR 2-290, 2-996 (6th Cir. 1994), quoting
Jessee v. Director, OWCP, 5 F.3d 723, 725, 18 BLR 2-26-28 (4th Cir. 1993). In
order to establish entitlement to benefits under Part 718 in this living miner's
claim, it must be established that claimant suffered from pneumoconiosis, that the
pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is
totally disabling. 20 C.F.R. §§718.3; 718.202; 718.203; 718.204;
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP,
9 BLR 1-1 (1986). Failure to prove any one of these elements precludes
entitlement, id. Pursuant to Section 718.204(c), the administrative law
judge must weigh all relevant evidence, like and unlike, with the burden on
claimant to establish total respiratory disability by a preponderance of the
evidence, see Budash v. Bethlehem Mines Corp., 16 BLR 1-27 (1991)(en
banc); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Rafferty
v. Jones & Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock v. Bethlehem
Mines Corp., 9 BLR 1-195 (1986). Moreover, pursuant to Section 718.204(b), in
this case arising within the jurisdiction of the Sixth Circuit Court, claimant must
prove that his totally disabling respiratory impairment was due "at least in part"
to his pneumoconiosis, see Adams v. Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th Cir. 1989).
Initially, we reject employer's contention that on modification, this case
should have been assigned to Judge Jansen, who originally considered the claim on
the merits. There is no requirement that the administrative law judge who issued
the original Decision and Order be assigned to decide the petition for
modification, see generally Nataloni v. Director, OWCP, 17 BLR 1-82 (1993);
Kovac v. BCNR Mining Corp., 14 BLR 1-156 (1990), modified on recon.,
16 BLR 1-71 (1992); Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989);
cf. Gillen v. Peabody Coal Co., 16 BLR 1-22 (1991); Edmiston v. F & R
Coal Co., 14 BLR 1-65 (1990), and no bias by the administrative law judge was
established or asserted by employer, see Cochran v. Consolidation Coal Co.,
16 BLR 1-101 (1992).
Next, pursuant to Section 718.204(c)(1),[2]
the administrative law judge considered the five new pulmonary function studies of
record, which consisted of three qualifying pulmonary function studies from Dr.
Baker, Director's Exhibit 97; Claimant's Exhibit 1,[3] one pulmonary function study from Dr. Dahhan which yielded a
qualifying pre-bronchodilator result and a non-qualifying post-bronchodilator
result and, according to Dr. Dahhan, an invalid diffusion study result, Director's
Exhibit 99, and an invalid pulmonary function study from Dr. Broudy, Employer's
Exhibit 5. Although one of Dr. Baker's pulmonary function studies was non-conforming, as it contained no tracings, see Claimant's Exhibit 1; 20 C.F.R.
§718.103, the administrative law judge found the results of Dr. Baker's three
pulmonary function studies were nevertheless consistent. The administrative law
judge further found that Dr. Dahhan's invalidation of the diffusion study result
of the pulmonary function study he administered was not sufficiently explained and
that the pulmonary function study's results were consistent with Dr. Baker's and
therefore found total disability established pursuant to Section 718.204(c)(1)
based on their pulmonary function study results. Decision and Order at 14-15.
Although employer contends that the administrative law judge failed to consider the
newly submitted pulmonary function study evidence with the previously submitted
pulmonary function study evidence to determine whether it demonstrated a change in
condition, the administrative law judge noted that total disability was not
established in the previous Decision and Order, Decision and Order at 13. However,
as employer contends, the administrative law judge failed to note or consider that
Dr. Dahhan's post-bronchodilator results were non-qualifying, see Tackett v.
Director, OWCP, 7 BLR 1-703 (1985). Where the record contains both a pre-bronchodilator and post-bronchodilator result and one qualifies while the other
does not, the administrative law judge must weigh the values and explain those
results he finds more probative, see Keen v. Jewell Ridge Coal Corp., 6 BLR
1-454 (1983). Thus, we vacate the administrative law judge's finding pursuant to
Section 718.204(c)(1).
Pursuant to Section 718.204(c)(4), the administrative law judge considered the
six physicians who provided opinions based on newly submitted evidence. Dr. Baker
diagnosed a "moderate to moderately severe" obstructive ventilatory defect based
on new pulmonary function study results, Director's Exhibits 97, 101; Claimant's
Exhibit 1. Dr. Sullivan diagnosed severe pneumoconiosis and moderate chronic
obstructive pulmonary disease and listed claimant's functional limitations which
would prevent him from performing his prior work, Director's Exhibit 97. Dr. Fino
reviewed the new evidence and found that it did not change his prior opinion that,
while claimant was totally disabled from a respiratory standpoint, it was due only
to smoking, Employer's Exhibits 1-2. Dr. Dahhan found that his new examination and
objective test results, including a qualifying pulmonary function study showing an
obstructive abnormality with reversibility, revealed no materially significant
change in claimant's respiratory condition from his original examination, when he
found claimant was not totally disabled, Director's Exhibit 99. Finally, Dr.
Broudy found that, although claimant's pulmonary function study was invalid, the
rest of his examination and objective test results did not indicate that claimant
was totally disabled, Employer's Exhibit 5.
The administrative law judge found that, although Dr. Baker did not make an
unequivocal finding of total disability, the results of the pulmonary function
study he administered were sufficient to establish total disability, and the
administrative law judge found his opinion supported by Dr. Fino's opinion and the
opinion of Dr. Sullivan, despite the administrative law judge's finding that Dr.
Sullivan's opinion contained no documentary references or rationale for its
conclusions, Decision and Order at 16-19. The administrative law judge discredited
Dr. Dahhan's opinion because the administrative law judge found his invalidation
of the diffusion result of the qualifying pulmonary function study he administered
was not documented or reasoned and the administrative law judge discredited Dr.
Broudy's opinion because the administrative law judge found that his invalidation
of the pulmonary function study he administered and, therefore, his opinion as to
total disability, was "equivocal."
Contrary to the administrative law judge's finding as to Dr. Baker's opinion,
even though a pulmonary function study might yield qualifying results, a physician
may still nevertheless diagnose no total disability, see Bogan v. Consolidation
Coal Co., 6 BLR 1-1000 (1984). Similarly, although Dr. Dahhan noted that the
diffusion result of the pulmonary function study he administered was invalid, he
nevertheless based his opinion, in part, on the overall qualifying results of the
pulmonary function study. The interpretation of such medical evidence is a medical
determination for which an administrative law judge may not substitute his own
opinion, see Schetroma v. Director, OWCP, 18 BLR 1-19 (1993); Castle v.
Eastern Associated Coal Co., 12 BLR 1-105 (1988); Casella v. Kaiser Steel
Corp, 9 BLR 1-131 (1986). Finally, the administrative law judge's analysis of
Dr. Sullivan's opinion is irrational and inconsistent and his analysis of Dr.
Broudy's opinion as to the validity of the pulmonary function study he administered
is inconsistent under Section 718.204(c)(1) and (4). The administrative law judge
found "no documentary references or other rationale for [Dr. Sullivan's]
conclusions," Decision and Order at 16, yet nevertheless credited his opinion as
supportive of Dr. Baker's opinion as to total disability. In addition, the
administrative law judge noted that he agreed with Dr. Broudy's findings that the
pulmonary function study he administered was invalid under Section 718.204(c)(1),
whereas he discredited Dr. Broudy's invalidation of the pulmonary function study
as "equivocal" under Section 718.204(c)(4). Thus, the administrative law judge's
analysis of the medical opinion evidence and credibility determinations under
Section 718.204(c)(1) are inconsistent with his analysis of the same evidence under
Section 718.204(c)(4), see Revnack v. Director, OWCP, 7 BLR 1-771 (1985);
see also Wike v. Bethlehem Mines Corp., 7 BLR 1-593 (1984).
Consequently, we vacate the administrative law judge's finding under Section
718.204(c)(4) and remand the case for the administrative law judge to reconsider
all relevant evidence, like and unlike, under Section 718.204(c), see
Budash, supra; Fields, supra; Rafferty,
supra; Shedlock, supra.
Next, although the administrative law judge found no mistake of fact or law
in Judge Jansen's original Decision and Order in which the existence of
pneumoconiosis was established pursuant to Section 718.202(a)(4), Decision and
Order at 23, the administrative law judge nevertheless considered all of the
relevant medical opinion evidence pursuant to subsection (a)(4). The
administrative law judge credited the opinions of Drs. Baker, Director's Exhibits
15, 61; Claimant's Exhibit 1, and Vaezy, Director's Exhibits 17-18, who both
diagnosed pneumoconiosis, in light of their "superior qualifications" as both
board-certified physicians in internal medicine and pulmonary disease as well as
B-readers,[4] over the contrary opinions of Drs.
Dahhan, Broudy, Lane and Fino. Decision and Order at 21-23. In addition, although
the administrative law judge noted that Dr. Baker did not state a new diagnosis
regarding coal workers' pneumoconiosis in his newly submitted opinions, he credited
Dr. Baker's opinion as he found him to be claimant's "treating" physician.
Finally, the administrative law judge found that Dr. Broudy's opinion that claimant
"may" have some obstructive airways disease which he attributed to smoking,
Employer's Exhibit 5, was equivocal and gave less weight to Dr. Fino's opinion as
he neither treated or examined claimant.
However, as employer contends, Drs. Dahhan and Broudy are also board-certified
physicians in internal medicine and pulmonary disease as well as B-readers,
Director's Exhibit 99; Employer's Exhibit 5. In addition, as employer contends,
Dr. Baker specifically noted in his originally submitted opinions, in which he made
his diagnosis of pneumoconiosis, that he was not claimant's treating physician at
that time, see Director's Exhibits 15, 61, and only began indicating that
he was treating claimant in his newly submitted opinions which only reiterate his
original diagnosis of pneumoconiosis. Finally, although Dr. Broudy opined that
claimant "may" have some obstructive airways disease, he further stated that
"whatever impairment" claimant has is the result of smoking and that none of
claimant's respiratory impairment is due to pneumoconiosis, Employer's Exhibit 5.
Thus, inasmuch as the administrative law judge's evidentiary analysis under Section
718.202(a)(4) does not coincide with the relevant evidence of record, we vacate the
administrative law judge's finding and remand the case for reconsideration, see
Tackett, supra.
The administrative law judge also found total disability due to pneumoconiosis
established pursuant to Section 718.204(b), crediting the opinion of Dr. Baker, as
claimant's treating physician and as supported by the opinion of Dr. Vaezy and the
opinion of Dr. Myers which was in the original record, over the contrary opinions
of Drs. Dahhan, Broudy and Fino, Decision and Order at 23.[5] Again, as employer contends, Dr. Baker specifically noted in his
originally submitted opinions, in which he found claimant was totally disabled from
a pulmonary standpoint and attributed his pulmonary impairment to his coal mine
employment and smoking, that he was not claimant's treating physician at that
time, see Director's Exhibits 15, 61, and only began indicating that he was
treating claimant in his newly submitted opinions which do not address the cause
of claimant's impairment or disability. Moreover, none of the newly submitted
evidence attributes the cause of claimant's impairment or disability to coal
workers' pneumoconiosis or claimant's coal mine employment. Thus, inasmuch as the
administrative law judge's evidentiary analysis under Section 718.204(b) does not
coincide with the relevant evidence of record, we also vacate the administrative
law judge's finding and remand the case for reconsideration, see Tackett,
supra.
Finally, in order to avoid any possible repetition of error on remand, we
address employer's contention that, inasmuch as the administrative law judge found
no mistake of fact in Judge Jansen's prior Decision and Order, the administrative
law judge erred in awarding benefits, based on a change in conditions established
since the previous denial, beginning with the date of filing of claimant's claim
in January, 1994, Decision and Order at 24. The administrative law judge made no
finding as to whether the evidence of record established a date of onset of total
disability due to pneumoconiosis. If a date for the onset of a claimant's
disability due to pneumoconiosis is not ascertainable from the evidence of record,
then benefits commence as of the month the claim was filed, 20 C.F.R.
§725.503(b); Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600,
12 BLR 2-178 (3d Cir. 1989); Gardner v. Consolidation Coal Co., 12 BLR 1-184
(1989), unless credible medical evidence indicates that the miner was not totally
disabled due to pneumoconiosis at some point subsequent to his filing date, see
Edmiston, supra; Gardner, supra; Lykins v. Director,
OWCP, 12 BLR 1-181 (1989). Although Section 725.503 does not indicate that any
special guidelines are to be applied to cases involving modification, 20 C.F.R.
§725.503, Section 725.503(a) refers to Section 6(a) of the Longshore and
Harbor Workers' Compensation Act, which states that "the compensation shall be
allowed from the date of the disability," 33 U.S.C. §906(a). 20 C.F.R.
§725.503(a); see also Eifler v. Director, OWCP, 926 F.2d 663, 666, 15
BLR 2-1, 2-4 (7th Cir. 1991)(a change in condition, i.e., a worsening of a
claimant's pneumoconiosis to the point where it is totally disabling, entitles the
claimant to benefits from the date of the change, whereas the correction of a
mistake in fact, i.e., "showing that he had totally disabling black lung
disease at the time of the original hearing," entitles the claimant to benefits
from the date of the total disability.) Consequently, inasmuch as the
administrative law judge found that no mistake in fact was established pursuant to
Section 725.310, but that a basis for modification was established based on a
change in conditions, we vacate the administrative law judge's award of benefits
from the month in which claimant filed his claim and remand the case for
reconsideration pursuant to Section 725.503, see 20 C.F.R. §725.503;
Krecota, supra; Edmiston, supra; Gardner,
supra; Lykins, supra; see also Eifler, supra.
If the administrative law judge again finds claimant entitled to benefits on remand
based on a change in conditions pursuant to Section 725.310, then the
administrative law judge should determine whether the evidence of record
establishes a date of onset of claimant's total disability due to pneumoconiosis
and award benefits dating from, at most, the date following the prior denial of
claimant's claim, i.e., April, 1996, see Director's Exhibit 88.
Accordingly, the Decision and Order of the administrative law judge's awarding
benefits is affirmed in part, vacated in part and the case is remanded for further
consideration consistent with this opinion.
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) Claimant originally filed a claim on January 10, 1994,
Director's Exhibit 1, which was ultimately referred to the Office of Administrative
Law Judges. In a Decision and Order issued on April 15, 1996, Administrative Law
Judge Rudolf L. Jansen found twenty-eight and one-quarter years of coal mine
employment established and adjudicated the claim pursuant to 20 C.F.R. Part 718,
Director's Exhibit 88. Judge Jansen found that the existence of pneumoconiosis was
not established pursuant to 20 C.F.R. §718.202(a)(1)-(3), but was established
by the medical opinion evidence pursuant to 20 C.F.R. §718.202(a)(4). Judge
Jansen further found pneumoconiosis arising out of coal mine employment established
pursuant to 20 C.F.R. §718.203(b). However, Judge Jansen found that total
disability was not established pursuant to 20 C.F.R. §718.204(c)(1)-(4). As
Judge Jansen found, the presumption at Section 411(c)(4) of the Act, 30 U.S.C.
§921(c)(4), as implemented by 20 C.F.R. §718.305, is inapplicable to the
instant claim, filed after January 1, 1982, see 20 C.F.R. §718.305(a),
(e); Director's Exhibit 1; see also 20 C.F.R. §718.202(a)(3);
Director's Exhibit 88. Accordingly, benefits were denied. Claimant ultimately
filed a motion for modification on May 31, 1996, Director's Exhibit 92.
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2) Inasmuch as the administrative law judge's findings that the
existence of pneumoconiosis was not established pursuant to Section 718.202(a)(1)-(3), that total disability was not demonstrated pursuant to Section 718.204(c)(2)-(3) and that no mistake of fact in Judge Jansen's prior Decision and Order was
established have not been challenged on appeal, they are affirmed, see Skrack
v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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3) A "qualifying" pulmonary function study or blood gas study
yields values that are equal to or less than the appropriate values set out in the
tables at 20 C.F.R. Part 718, Appendices B, C, respectively. A "non-qualifying"
study exceeds those values. See 20 C.F.R. §718.204(c)(1), (2).
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4) A "B-reader" is a physician who has demonstrated proficiency
in classifying x-rays according to the ILO-U/C standards by successful completion
of an examination established by the National Institute of Occupational Safety and
Health. See 20 C.F.R. §718.202(a)(1)(ii)(E); 42 C.F.R. §37.51;
Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR
2-1 (1987), reh'g denied, 484 U.S. 1047 (1988); Roberts v. Bethlehem
Mines Corp., 8 BLR 1-211 (1985).
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5) Although employer contends that the administrative law judge
did not specifically address claimant's smoking history and also found the opinions
of those physicians, i.e., Drs. Baker and Vaezy, who recommended that
claimant work in a dust-free environment supported the determination that such dust
is, at least in part, the cause of his total disability, any error by the
administrative law judge in this regard is harmless as both Drs. Baker and Vaezy
specifically attributed claimant's disability to coal mine employment and smoking
in their previously submitted opinions, see Larioni v. Director, OWCP, 6 BLR
1-1276 (1984).
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NOTE: This is an UNPUBLISHED BLA Document.
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