BLA UNPUBLISHED Document: 01-0485.pdf: Crihfield v. Peabody Coal Company

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BRB No. 01-0485 BLA

LEON S. CRIHFIELD )
)
Claimant-Respondent )
)
v. )
)
PEABODY COAL COMPANY ) DATE ISSUED:02/19/2002

)
and )
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OLD REPUBLIC INSURANCE COMPANY )
)
Employer/Carrier- )
Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER

Appeal of the Decision and Order-Awarding Benefits of Robert J. Lesnick,
Administrative Law Judge, United States Department of Labor.

Ray E. Ratliff, Jr., Charleston, West Virginia, for claimant.

Laura Metcoff Klaus (Greenberg Traurig LLP), Washington D.C., for
employer.

Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.

PER CURIAM:

Employer appeals the Decision and Order - Awarding Benefits (00-BLA-0429) of
Administrative Law Judge Robert J. Lesnick 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).[1] The administrative law judge found that the instant claim constituted
a duplicate claim[2] and that claimant established
a coal mine employment history of at least nineteen years. Finding that the
evidence established a material change in conditions, the administrative law judge
considered the claim on the merits and found: that claimant established the
existence of pneumoconiosis based upon the weight of the medical opinion evidence;
that claimant was entitled to the presumption that his pneumoconiosis arose out of
coal mine employment and that the presumption was not rebutted; and that claimant
established the presence of a totally disabling respiratory impairment due to
pneumoconiosis. Accordingly, benefits were awarded.

On appeal, employer contends that the administrative law judge erred in
failing to consider the newly submitted evidence, i.e., that evidence
submitted subsequent to the prior denial, in a manner consistent with the holding
in 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); cert. denied, 117 S.Ct. 763 (1997).[3] Employer further asserts that the administrative law judge erred in
finding that claimant established the presence of pneumoconiosis and a totally
disabling respiratory impairment due to pneumoconiosis. In response, claimant
urges affirmance of the award of benefits. The Director, Office of Workers'
Compensation Programs (the Director), has not filed a brief in this appeal.[4]

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).

Employer first contends that the administrative law judge's finding of a
material change of conditions is contrary to the holding of the Fourth Circuit in
Rutter, supra, because the administrative law judge failed to weigh
and discuss sufficiently the newly submitted evidence when he determined that it
supported a finding of material change, and instead, made only a cursory
determination that such evidence established a material change in conditions
without sufficient explanation or rationale.

The determination of whether claimant has established a material change in
conditions is a threshold issue and must be resolved by the administrative law
judge before proceeding to a review of the merits of entitlement. See
Rutter, supra. In considering whether a material change in conditions
has been established, the administrative law judge must consider the entirety of
the newly submitted evidence in order to determine whether claimant has established
at least one of the elements of entitlement previously adjudicated against him.
See 20 C.F.R. §725.309(d)(2000); Rutter, supra.

In the instant case, the administrative law judge determined that the district
director should have found a material change in conditions established because
qualifying blood gas study evidence had been submitted in support of the present
claim, Decision and Order at 6, and further concluded that "based upon [his]
independent review of the new evidence,...such evidence clearly establishes a
material change in condition (i.e., the development of a totally disabling
respiratory or pulmonary impairment)." Decision and Order at 6. As employer
contends, however, this finding is conclusory because it fails to provide any
explanation as to the weight accorded the relevant evidence. Further, while
finding that qualifying blood gas study evidence supports a finding of total
disability, the administrative law judge did not weigh or discuss the newly
submitted evidence which was non-qualifying as is required by Rutter,
supra. Accordingly, the administrative law judge's finding on material
change does not meet the standard set forth in Rutter or the standard set
forth by the Administrative Procedure Act (the 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), which requires that every adjudicatory decision be
accompanied by a statement of findings of fact and conclusions of law and the basis
therefor on all material issues of fact, law or discretion presented in the record.
Id. We, therefore, vacate the administrative law judge's finding on
material change and remand the case to the administrative law judge for further
consideration of whether the newly submitted medical evidence establishes a
material change in conditions pursuant to Section 725.309(d)(2000). If, on remand,
the administrative law judge determines that claimant has established a material
change in conditions he must again consider the merits of entitlement in a manner
discussed, infra.

In order to avoid repetition of error on remand, we next address the other
allegations of error made by employer. Employer asserts that, in considering the
claim on the merits, the administrative law judge erred in finding that claimant
established the existence of pneumoconiosis by: discounting the negative x-ray
evidence; rejecting the opinion of Dr. Fino; rejecting the opinion of Dr. Zaldivar;
relying on opinions of Drs. Rasmussen and Ranavaya; and failing to weigh all of the
evidence relevant to the existence of pneumoconiosis in a manner consistent with
the holding of the Fourth Circuit in Island Creek Coal Co. v. Compton, 211
F.3d 203, 22 BLR 2-162 (4th Cir. 2000), which requires that all evidence relevant
to the existence of pneumoconiosis be weighed together before finding the existence
of pneumoconiosis established at Section 718.202(a).

In considering the evidence of pneumoconiosis, the administrative law judge
found that inasmuch as the x-ray evidence neither precluded nor established the
existence of pneumoconiosis, pneumoconiosis was not established at Section
718.202(a)(1), and inasmuch as there was no autopsy or biopsy evidence and claimant
was not entitled to any of the presumptions found at Section 718.304-306,
pneumoconiosis was not established pursuant to Section 718.202(a)(2)-(3). Turning
to the medical opinion evidence at Section 718.202(a)(4), however, the
administrative law judge found that the medical opinions of Drs. Rasmussen and
Ranavaya established the existence of pneumoconiosis because they were better
reasoned and documented than those of Drs. Zaldivar and Fino. Specifically, the
administrative law judge found the opinions of Drs. Rasmussen and Ranavaya better
reasoned and documented because they were:

more consistent with claimant's complaints of worsening
shortness of breath, as corroborated by the testimony of his
wife and reported medical histories, claimant's history of
significant coal dust exposure in 19 years of mining, abnormal
physical findings reported on almost all of the physical
examinations, the absence of bullous emphysema on almost all
of the x-ray interpretations except for those made by Dr.
Zaldivar, and the worsening clinical test results over time.

Decision and Order at 15.

Contrary to employer's argument, the administrative law judge reasonably found
that the negative x-ray evidence did not preclude a finding of pneumoconiosis
inasmuch as some of the x-rays were read positive for the existence of
pneumoconiosis and the negative x-ray readings were inconsistent as to whether the
x-ray films were completely negative, or showed some abnormalities, such as bullae
and emphysema. See Decision and Order at 14. Likewise, we reject employer's
argument that the administrative law judge erred in discounting the opinion of Dr.
Zaldivar for the reasons given. Contrary to employer's argument, the
administrative law judge could permissibly accord less weight to Dr. Zaldivar's
opinion because he found that it unsupported by the objective testing of record and
more weight to the opinions of Drs. Rasmussen and Ranavaya as he found them better
supported by the evidence of record. See Clark v. Karst-Robbins Coal Co.,
12 BLR 1-149 (1986)(en banc); Carpeta v. Mathies Co., 7 BLR 1-145,
n.2 (1988); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291, 1294 (1984).

Employer argues that the administrative law judge in the case at bar repeated
the error of the administrative law judge in Milburn Colliery v. Hicks, 138
F.2d 524, 21 BLR 2-324 (4th Cir. 1998), when he credited the opinion of Dr.
Rasmussen over that of Dr. Zaldivar, to find that claimant had established the
existence of pneumoconiosis and total respiratory disability. Employer's reliance
on Hicks is misplaced. The Hicks court held that the administrative
law judge erred in finding total respiratory disability established by crediting
Dr. Rasmussen's opinion over that of Dr. Zaldivar (claimant disabled by heart
disease). Unlike the evidence in Hicks, evidence in the case at bar
included, inter alia, pulmonary function studies and diagnoses of a
pulmonary impairment by both Drs. Rasmussen and Zaldivar. In addition, the
administrative law judge in the case at bar, unlike the administrative law judge
in Hicks, found "abnormal physical findings reported on
almost all of the physical examinations," Decision and
Order at 15 (emphasis added). Further, while the Hicks court held that the
administrative law judge's reliance, in part, on x-ray evidence to judge the
credibility of the physicians' opinions was misplaced because the issue involved
was total disability, Hicks at 534, 2-337; the administrative law judge's
reliance in the case at bar on the fact that Dr. Zaldivar's x-ray finding of
bullous emphysema was at odds with the interpretations "on
almost all of the [other] x-ray interpretations"
Decision and Order at 15 (emphasis added), was relevant to a determination
regarding the existence of pneumoconiosis. See Compton, supra;
Fuller, supra; see also Kozele v. Rochester & Pittsburgh Coal
Co., 6 BLR 1-378, 382 n.4 (1983). Thus, the Hicks court's concern, that
there was no rational basis to find claimant's disabling breathing problems caused
by a pulmonary impairment rather than heart disease is not present in the instant
case.

Employer next asserts that the administrative law judge erred in concluding
that the medical opinion evidence supported a finding of total disability because
the administrative law judge failed to make the necessary finding regarding the
exertional requirements of claimant's usual coal mine employment and to compare
such requirements with the physicians' assessments of claimant's ability to do that
work. We agree. While the administrative law judge concluded that claimant's last
usual coal mine job was as a general inside laborer, he did not determine the
exertional level requirements of that job and compare them to the physicians'
assessments of claimant's ability to do that job. This error necessitates remand.
See Hvizdak v. North American Coal Corp., 7 BLR 1-469 (1984); Turner v.
Director, OWCP, 7 BLR 1-419 (1984); Daniel v. Westmoreland Coal Co., 5
BLR 1-196, 1-220 (1982); see also McMath v. Director, OWCP, 12 BLR 1-6
(1988);Cregger v. U.S. Steel Corp., 6 BLR 1-1219 (1984).

Employer further argues that the administrative law judge erred in rejecting
the opinion of Dr. Zaldivar because Dr. Zaldivar mistakenly characterized
claimant's last employment as that of a "shot firer," while crediting the opinion
of Dr. Rasmussen, who also characterized claimant's last coal mine employment as
that of a "shot firer." Employer's Brief at 15; Employer's Exhibit 8; Director's
Exhibit 13. We agree. This is error which requires remand. Tackett,
supra. Since Dr. Zaldivar characterized claimant's last coal mine
employment as requiring moderate exertion, while Dr. Rasmussen characterized it as
requiring heavy manual labor, see Employer's Exhibit 8; Director's Exhibit
13, it is particularly important that the administrative law judge consider the
physicians' knowledge of claimant's last, usual coal mine employment in conjunction
with their knowledge of the exertional requirements of that employment in order to
make a credibility assessment of the physicians' respective opinions. See Eagle
v. Armco, Inc., 943 F.2d 509, 15 BLR 2-201 (4th Cir. 1991); Walker v.
Director, OWCP, 927 F.2d 181, 15 BLR 2-16 (4th Cir. 1991). On remand, the
administrative law judge must reconsider these physicians' opinions, together with
any other relevant, physicians' opinions regarding claimant's ability to do his
usual coal mine employment.

In reconsidering the medical opinion evidence, the administrative law judge
must, of course, weigh it with "the majority of non-qualifying pulmonary function
studies, and the mixed arterial blood gas studies," Decision and Order at 18, in
determining whether total disability is established. 20 C.F.R.
§718.204(b)(2)(iv); see Clark, supra; 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),
aff'd on recon. 9 BLR 1-236 (1987).

Employer also argues that the administrative law judge erroneously relied upon
an irrebuttable presumption that pneumoconiosis is progressive to find total
disability established, i.e., the administrative law judge relied on the
more recent medical opinion evidence in view of the progressive nature of
pneumoconiosis. Further, employer, while acknowledging that revised Section
718.201(c) provides that pneumoconiosis is progressive and latent, nonetheless
argues that that regulation should not be applied as it is subject to the
preliminary injunction order granted by the United States District Court in
National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order
granting preliminary injunction). On August 9, 2001, however, the District Court
issued its decision upholding the validity of the challenged regulations and
dissolving the February 9, 2001 order granting the preliminary injunction.
National Mining Ass'n v. Chao, 160 F. Supp. 2d 47 (D.D.C. 2001).
Accordingly, we reject employer's argument that the revised regulation defining
pneumoconiosis as progressive and latent is invalid and that the Department of
Labor lacked authority to promulgate such a presumption. See Chao,
supra; see also Director, OWCP v. National Mines Corp., 554 F.2d
1267, 1275 (4th Cir. 1977); see generally Eastern Associated Coal Corp. v.
Director, OWCP [Scarbro], 220 F.3d 250, 258-59, 22 BLR 2-93 (4th Cir. 2000);
Lane Hollow Coal Co. v. Director, OWCP [Lockhart], 137 F.3d 799, 803, 21 BLR
2-302 (4th Cir. 1998); Hicks, supra; Adkins v. Director, OWCP,
958 F.2d 49, 51, 12 BLR 2-313 (4th Cir. 1992); Greer v. Director, OWCP, 940
F.2d 88, 90, 15 BLR 2-167 (4th Cir. 1991); Hamrick v. Schweiker, 679 F.2d
1078, 1081, 4 BLR 2-110 (4th Cir. 1982); Prater v. Harris, 620 F.2d 1074,
1082 (4th Cir. 1980); Barnes v. Mathews, 562 F.2d 278, 279 (4th Cir. 1977).

Finally, employer contends that the administrative law judge erred in finding
causation established for the same reasons he found pneumoconiosis established.
Specifically, the errors alleged are: crediting the opinions of Drs. Rasmussen and
Ranavaya that pneumoconiosis played a role in claimant's totally disabling
respiratory impairment without providing any explanation as to why the opinions of
these physicians were well-reasoned and documented when the physicians failed to
explain the bases for their conclusions; rejecting the opinion of Dr. Zaldivar that
pneumoconiosis played no role in claimant's totally disabling respiratory
impairment because Dr. Zaldivar's findings were not supported by the record; and
rejecting Dr. Fino's opinion because it relied on Dr. Zaldivar's opinion.

Because the administrative law judge's findings regarding the existence of
pneumoconiosis have been vacated in part, and the case remand for reconsideration
of that issue, if reached, we must also remand for reconsideration of the evidence
on causation, if reached, pursuant to the standard set forth at 20 C.F.R.
§718.204(c).

Accordingly, the administrative law judge's Decision and Order- Awarding
Benefits is affirmed in part, vacated in part, and the case is remanded to the
administrative law judge for further consideration consistent with this opinion.

SO ORDERED.

ROY P. SMITH
Administrative Appeals Judge

REGINA C. McGRANERY
Administrative Appeals Judge

BETTY JEAN HALL
Administrative Appeals Judge

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Footnotes.
1) The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as amended.
These regulations became effective on January 19, 2001, and are found at 65 Fed.
Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and
726). All citations to the regulations, unless otherwise noted, refer to the
amended regulations.
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2) Claimant initially filed a claim for benefits on November 14,
1991, which was denied by the Department of Labor on April 30, 1992, on the basis
of claimant failing to establish any of the elements of entitlement. Director's
Exhibit 31. No further action was taken until claimant filed a second claim on
November 22, 1996, and on March 21, 1997, the Department of Labor again found that
claimant failed to establish any of the elements of entitlement. Director's
Exhibit 32. Accordingly, the claim was denied on the basis of claimant having
failed to establish a material change in conditions. Director's Exhibit 32.
Claimant filed the instant claim on March 1, 1999. Director's Exhibit 1. After
denial by the district director, Director's Exhibit 18, a hearing was held. On
January 22, 2001, the administrative law judge issued the Decision and Order-Awarding Benefits from which employer now appeals.
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3) Because the instant claim arises within the Fourth Circuit,
the law of that circuit is controlling. See 33 U.S.C. §921(c); Shupe
v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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4) We affirm, as unchallenged on appeal, the administrative law
judge's length of coal mine employment determination. See Skrack v.
Island Creek Coal Co., 6 BLR 1-710 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.

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