BRB No. 98-1519 BLA
LESLIE WHITMAN )
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Claimant-Petitioner )
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v. )
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PEABODY COAL COMPANY ) DATE ISSUED:08/20/1999
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and )
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OLD REPUBLIC INSURANCE COMPANY )
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Employer/Carrier )
Respondents )
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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 Denying Benefits Upon Remand From the
Benefits Review Board of Paul H. Teitler, Administrative Law Judge,
United States Department of Labor.
Joseph H. Kelley (Monhollon & Kelley), Madisonville, Kentucky, for
claimant.
John D. Maddox (Arter & Hadden, LLP), Washington, D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits Upon Remand From the
Benefits Review Board (84-BLA-9098) of Administrative Law Judge Paul H. Teitler 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 a fourth time. Claimant filed his claim
on April 27, 1978. Director's Exhibit 1. In a Decision and Order issued on August
21, 1987, the administrative law judge found invocation of the interim presumption
established pursuant to 20 C.F.R. §727.203(a)(1), (2) and (4) and further
found the evidence insufficient to establish rebuttal of the interim presumption
pursuant to 20 C.F.R. §727.203(b)(1)-(4). Accordingly, benefits were awarded.
Subsequent to an appeal by employer, the Board vacated the administrative law
judge's findings of invocation at Section 727.203(a)(1), (2) and (4), and the
findings that rebuttal was not established pursuant to Section 727.203(b)(3) and
(4). The Board also modified the entitlement date and instructed the
administrative law judge to consider entitlement under Part 718 if necessary.
Whitman v. Peabody Coal Co., BRB No. 87-2473 BLA (June 30, 1989). On
remand, the administrative law judge found the evidence sufficient to establish
invocation at Section 727.203(a)(1) and (2) and found the evidence insufficient to
establish rebuttal at Section 727.203(b)(1)-(4). Accordingly, benefits were
awarded. Employer appealed and the Board affirmed the award of benefits.
Whitman v. Peabody Coal Co., BRB No. 90-0217 BLA (Mar. 30, 1993).
Subsequently, the Board granted employer's Motion for Reconsideration, and pursuant
to the holding of the United States Supreme Court in Director, OWCP v. Greenwich
Collieries [Ondecko], 512 U.S. 267, 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), vacated the administrative law judge's findings at Section 727.203(a)(1),
(b)(3) and (4), and remanded the case for further consideration. Whitman v.
Peabody Coal Co., BRB No. 90-0217 BLA (Order on Motion for
Reconsideration)(Aug. 11, 1995).[1]
Pursuant to the second remand, the administrative law judge found rebuttal
established at Section 727.203(b)(3) and, accordingly denied benefits. Claimant
appealed and the Board vacated the finding of rebuttal pursuant to Section
727.203(b)(3). The Board also vacated the finding of no rebuttal at Section
727.203(b)(4) and remanded the claim for further consideration of those subsections
and, if necessary, for consideration of entitlement at Part 718. See Whitman v.
Peabody Coal Co., BRB No. 97-0720 BLA (Mar. 5, 1998)(unpub.).
On third remand, the administrative law judge found that the x-ray evidence
of record established invocation of the interim presumption pursuant to Section
727.203(a)(1). Decision and Order on Remand at 4-5. The administrative law judge
further concluded that the evidence of record supported a finding of rebuttal at
Section 727.203(b)(3), but that the evidence failed to support such a finding
pursuant to Section 727.203(b)(4). Decision and Order at 5-8. The administrative
law judge also found that claimant failed to establish entitlement to benefits
pursuant to 20 C.F.R. Part 718 inasmuch as the evidence of record failed to
establish total disability due to pneumoconiosis pursuant to 20 C.F.R.
§718.204(b). Accordingly, benefits were denied.
In the appeal now before the Board, claimant contends that the administrative
law judge erred in failing to reopen the record for the submission of new evidence.
Claimant further asserts that the previous finding of invocation at Section
727.203(a)(2) constitutes the law of the case and that since the opinions of the
physicians relied on by the administrative law judge to support a finding of
rebuttal pursuant to Section 727.203(b)(3) predate evidence used to support the
finding of invocation at Section 727.203(a)(2), the opinions are not credible.
Claimant also contends that the administrative law judge erred in his reliance on
certain evidence as support for a finding of rebuttal at Section 727.203(b)(3), and
that the Board lacked the authority to "reverse itself" on a Motion for
Reconsideration. Claimant's Brief at 15. Lastly, claimant contends that the
administrative law judge erred in denying benefits pursuant to Part 718. Employer,
in response, contends that the administrative law judge properly found rebuttal
established pursuant to Section 727.203(b)(3) and properly denied benefits pursuant
to Part 718. Employer, further asserts that the administrative law judge erred in
finding that the x-ray evidence established invocation of the interim presumption
pursuant to Section 727.203(a)(1), and further erred in finding rebuttal not
established pursuant to Section 727.203(b)(4). The Director, Office of Workers'
Compensation Programs (the Director), as party-in-interest, has declined to
participate in this appeal.
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).
Initially, claimant asserts that the administrative law judge erred in failing
to acknowledge its request to reopen the record for the submission of more current
medical evidence. We disagree. Contrary to claimant's assertion that the
administrative law judge ignored claimant's request to reopen the record in order
to allow for the submission of new evidence, the administrative law judge
specifically concluded that a reopening of the record would further delay the case.
Decision and Order on Remand at 3-4.[2] The
decision as to whether to reopen the record on remand is within the province of the
administrative law judge. 20 C.F.R. §725.456(e); see Tackett v. Director,
OWCP, 806 F.2d 640, 10 BLR 2-92 (6th Cir. 1986); Lynn v. Island Creek Coal
Co., 12 BLR 1-146 (1989); Toler v. Associated Coal Co., 12 BLR 1-49
(1989); Borgeson v. Kaiser Steel Coal Co., 12 BLR 1-169 (1989); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989); White v. Director, OWCP,
7 BLR 1-348, 1-351 (1988). Claimant has failed, in the instant case, to
demonstrate an abuse of that discretion. Accordingly, we affirm the administrative
law judge's decision not to reopen the record.[3]
See 20 C.F.R. §725.456(e).
Claimant next asserts that the administrative law judge erred in finding that
employer established rebuttal of the interim presumption pursuant to Section
727.203(b)(3) inasmuch as the medical evidence relied upon by the administrative
law judge to support the finding of rebuttal, i.e., the opinions of Drs.
Getty, Anderson and Gallo, that claimant did not suffer from pneumoconiosis and/or
that claimant's total disability was not due to a pulmonary or respiratory
impairment, Director's Exhibit 24, 25; Claimant's Exhibit 5, predated the evidence
relied upon by the administrative law judge to support the finding of invocation
at Section 727.203(a)(2). Because of this, claimant contends that the opinions are
not credible. Likewise, claimant asserts that the medical opinion of Dr. Getty may
not be used to support a finding of rebuttal inasmuch as the Board previously
concluded that the opinion was insufficient as a matter-of-law to support a finding
of rebuttal at Section 727.203(b)(3).
In order to establish rebuttal pursuant to Section 727.203(b)(3), the United
States Court of Appeals for the Sixth Circuit within whose jurisdiction this case
arises has held that the party opposing entitlement must establish that
pneumoconiosis played no part in causing the miner's disability. See
Warman v. Pittsburg & Midway Coal Co., 839 F.2d 257, 11 BLR 2-62 (6th Cir.
1988); Gibas v. Saginaw Mining Co.,748 F.2d 1112, 7 BLR 2-53 (6th Cir.
1984), cert. denied, 471 U.S. 1116 (1985). In the instant case, the
administrative law judge concluded that the medical opinion of Dr. Getty, as
buttressed by the opinions of Drs. Anderson and Gallo, supports a finding of
rebuttal at Section 727.203(b)(3). Decision and Order on Remand at 6-8.
When this case was most recently before the Board, the Board vacated the
administrative law judge's finding of rebuttal at Section 727.203(b)(3).
Whitman, BRB No. 97-0720 BLA, slip op. at 4-5. Specifically, the Board
instructed the administrative law judge to consider the opinions of Drs. Anderson
and Gallo in light of the holding of the Sixth Circuit in Cooley v. Island Creek
Coal Co., 845 F.2d 622, 11 BLR 2-147 (6th Cir. 1988). In Cooley, the
Sixth Circuit court stated that the interim presumption would be of little value
if it can be rebutted by medical opinions based upon examinations conducted at a
time before claimant established the conditions required to invoke the presumption.
Id. In the instant case, the administrative law previously found invocation
of the interim presumption established at Section 727.203(a)(2), based, in part,
on a qualifying pulmonary function study dated September 9, 1986.[4] Claimant's Exhibit 5. The examinations
conducted by both Drs. Gallo and Dr. Anderson occurred in 1981, Claimant's Exhibit
5; Director's Exhibit 24, and thus predated the qualifying pulmonary function study
used to establish invocation of the interim presumption at Section 727.203(a)(2).
Accordingly, the Board instructed the administrative law judge to reconsider the
probative value of these opinions on remand. Whitman, BRB No. 97-0720 BLA,
slip op. at 5.
On remand, the administrative law judge credited Dr. Anderson's invalidation
of the June 10, 1986, qualifying pulmonary function study, and concluded that
because there were no credible pulmonary function studies performed after the dates
on which Drs. Anderson and Gallo examined claimant, their opinions were probative
at Section 727.203(b)(3). Decision and Order on Remand at 8. Contrary to the
administrative law judge's determination, however, as claimant contends, the
administrative law judge failed to address, as the Board instructed, the medical
opinions of Drs. Anderson and Gallo in relation to the qualifying pulmonary
function study of September 9, 1986. Accordingly, the administrative law judge has
failed to comply with the Board's previous remand instructions, see generally
Hall v. Director, OWCP, 12 BLR 1-80, and we remand the claim for consideration
of the probative value of the opinions of Drs. Anderson and Gallo at Section
727.203(b)(3). Cooley, supra.[5]
Further, we similarly vacate the administrative law judge's decision to rely on the
opinion of Dr. Getty as support for a finding of rebuttal at Section 727.203(b)(3),
inasmuch as the administrative law judge again failed to address the fact that the
opinion was made prior to the date of the qualifying pulmonary function study of
September 9, 1986. Accordingly, we vacate the administrative law judge's finding
of rebuttal at Section 727.203(b)(3) and remand the claim for further consideration
at that subsection.[6]
For the same reasons, we also vacate the administrative law judge's
determination that claimant has failed to establish entitlement at Part 718. The
Sixth Circuit has held that, pursuant to Section 718.204(b), a claimant must
establish that his totally disabling respiratory impairment was due, at least in
part, to pneumoconiosis. See Adams v. Director, OWCP, 886 F.2d 818,
13 BLR 2-52 (6th Cir. 1989); see also Peabody Coal Co. v. Smith, 127
F.3d 504, 21 BLR 2-180 (6th Cir. 1997). In finding that claimant failed to
establish total disability due to pneumoconiosis pursuant to Section 718.204(b),
the administrative law judge accorded greatest weight to Dr. Getty's conclusions.
As we discussed, supra, however, inasmuch as the administrative law judge's
determination regarding the opinion of Dr. Getty failed to account fully for the
documentation of record, see Tackett v. Director, OWCP, 7 BLR 1-703
(1985); Arnold v. Consolidation Coal Co., 7 BLR 1-648 (1985); Branham v.
Director, OWCP, 2 BLR 1-111, 1-113 (1979), the administrative law judge must,
if reached on remand, consider Section 718.204(b) in conjunction with the entirety
of relevant evidence of record.
Employer, in its response brief, challenges the administrative law judge's
finding that the x-ray evidence was sufficient to establish invocation of the
interim presumption at Section 727.203(a)(1).[7]
Employer contends that the administrative law judge erroneously relied on the
positive x-ray interpretation of Dr. Traughber as support for his conclusion that
the evidence supported a finding of invocation at Section 727.203(a)(1). In
concluding that the x-ray evidence of record established invocation of the interim
presumption at Section 727.203(a)(1), the administrative law judge accorded
greatest weight to the positive interpretation of Dr. Traughber, Claimant's Exhibit
4, as it was the only interpretation of the most recent x-ray of record. Decision
and Order on Remand at 4-5. A review of the x-ray evidence of record, however,
demonstrates that the administrative law judge erred in characterizing the x-ray
interpreted by Dr. Traughber as being taken on July 16, 1986. The x-ray film was
actually taken on June 20, 1986 and read by Dr. Traughber on July 16, 1986.
Claimant's Exhibit 4. Thus, the administrative law judge erred in determining the
recency of this x-ray by relying on the date of the reading rather than on the date
the x-ray was taken. See Wheatley v. Peabody Coal Co., 6 BLR 1-1214 (1984).
In addition, the June 20, 1986 x-ray was read by two other physicians. Claimant's
Exhibit 1; Employer's Exhibit 3. We, therefore, vacate the administrative law
judge's finding that the interim presumption was invoked pursuant to Section
727.203(a)(1), and remand the case for the administrative law judge to consider all
the relevant x-ray evidence of record. See Tackett, supra;
Arnold, supra; Branham, supra.
Employer next contends that the administrative law judge erred in failing to
find that rebuttal established pursuant to Section 727.203(b)(4), inasmuch as the
administrative law judge failed to correctly address the entirety of x-ray evidence
and improperly based his findings regarding the relevant medical opinions on a mere
"counting of heads" without any further analysis.
In order to establish rebuttal of the interim presumption pursuant to Section
727.203(b)(4), employer must establish the absence of pneumoconiosis as defined
by the Act, see Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 15 BLR 2-155 (1991); aff'g sub nom., Bethenergy Mines, Inc. v. Director, OWCP, 890
F.2d 1295, 13 BLR 2-162 (3d Cir. 1989); Pavesi v. Director, OWCP, 758 F.2d
956, 7 BLR 2-184 (3d Cir. 1985); Dockins v. McWane Coal Co., 9 BLR 1-5
(1986). A finding of invocation at Section 727.203(a)(1), however, precludes a
finding of rebuttal at subsection (b)(4). See Mullins Coal Company, Inc. of
Virginia v. Director, OWCP, 484 U.S. 135, 145 n.16, 11 BLR 2-1, 2-6 n.16
(1987), reh'g denied 484 U.S. 1047 (1988); Buckley v. Director,
OWCP, 11 BLR 1-37 (1988). In the instant case, the administrative law judge
did not rely on his finding of invocation at subsection (a)(1) to preclude a
finding of rebuttal at subsection (b)(4), but instead made a specific finding that
employer failed to affirmatively establish rebuttal under this subsection.
Decision and Order on Remand at 8. Inasmuch as we have held that the
administrative law judge's analysis of the x-ray evidence of record is flawed,
however, see discussion, supra, we vacate the administrative law
judge's determination that the evidence of record did not establish rebuttal at
Section 727.203(b)(4) and remand the claim for further consideration of the issue
if reached. See Dockins, supra.
Accordingly, the administrative law judge's Decision and Order Denying
Benefits Upon Remand From the Benefits Review Board 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
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) The Board left undisturbed its affirmance of the finding of invocation at Section
727.203(a)(2).
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2) The record does not contain any formal motion requesting the reopening of the
record, however.
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3) Inasmuch as this case must be remanded for further consideration, see
discussion, infra, the administrative law judge may, on remand, reopen the record, for further submission
of evidence. See 20 C.F.R. §725.456(e). Tackett, supra; Lynn,
supra; Toler, supra.
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4) A "qualifying" pulmonary function study yields values that are equal to or less than
the appropriate values set out in the tables at 20 C.F.R. §727.203(a)(2). A "non-qualifying" study exceeds
those values. See 20 C.F.R. §727.203(a)(2).
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5) Employer, in its response brief, asserts that the pulmonary function study of
September 9, 1986, could not support a finding of invocation at Section 727.203(a)(2) as a matter of law based
on the same rationale given by Dr. Anderson for invalidating the June 10, 1986 study and because it lacked the
required statement of cooperation. Credibility determinations are outside our scope of review, however,
see Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989), and we thus decline
employer's request to engage in this fact-finding. Nothing in our opinion, however, precludes the administrative
law judge from making a credibility assessment of the September 9, 1986 pulmonary function study, however.
See generally Director, OWCP v. Siwiec, 894 F.2d 635, 13 BLR 2-259 (3d Cir. 1990);
Director, OWCP v. Mangifest, 826 F.2d 1318, 10 BLR 2-220 (3d Cir. 1987); Winchester v. Director,
OWCP, 9 BLR 1-177 (1986).
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6) We reject, however, claimant's assertion that, on its face, Dr. Getty's opinion could
not support a finding of total disability based on the earlier holding of the Board. When this case was before the
Board for a second time, we held that Dr. Getty's opinion was insufficient as a matter of law to support a finding
of rebuttal at Section 727.203(b)(3). Whitman v. Peabody Coal Co., BRB No. 90-0217 BLA, slip op.
at 3 n.3 (Mar. 30, 1993). Subsequently, when this case was most recently before the Board, we held that our
previous determination was in error and that Dr. Getty's opinion that claimant's inability to work was due to heart
disease and that he had no pulmonary dysfunction, was sufficient, if credited, to support a finding of rebuttal at
Section 727.203(b)(3). Whitman v. Peabody Coal Co., BRB No. 97-0720 BLA (Mar. 5, 1998).
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7) Inasmuch as we vacate the administrative law judge's finding that rebuttal was
established pursuant to Section 727.203(b)(3) and that entitlement was not established pursuant to Part 718, we
address arguments submitted by employer in its response brief, which are in support of the denial below. See
King v. Tennessee Consolidated Coal Co., 6 BLR 1-87 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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