BRB No. 02-0476 BLA-A
RAY HAMILTON, JUNIOR )
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Claimant )
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v. )
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ISLAND CREEK COAL COMPANY ) DATE ISSUED:02/27/2003
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and )
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OLD REPUBLIC INSURANCE COMPANY )
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Employer/Carrier- )
Petitioners )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Respondent ) DECISION AND ORDER
Appeal of the Decision and Order on Remand of Paul H. Teitler,
Administrative Law Judge, United States Department of Labor.
W. William Prochot (Greenberg Traurig LLP), Washington, D.C., for
employer/carrier.
Michelle S. Gerdano (Howard M. Radzely, Acting Solicitor of Labor;
Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy
Associate Solicitor; 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: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand (95-BLA-0621) of
Administrative Law Judge Paul H. Teitler requiring employer to reimburse the Black
Lung Disability Trust Fund (the Trust Fund) in the amount of $23,861.76 for medical
expenses incurred in the treatment of claimant's pneumoconiosis [1] 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).[2]
This medical benefits only case is before the Board for a third time.[3] When this case was most recently before the
Board, the Board remanded the case for the administrative law judge to determine
whether certain medical expenses were compensable pursuant to the standard
established by the United States Court of Appeals for the Sixth Circuit, within
whose jurisdiction this cases arises, in Glen Coal Co. v. Seals, 147 F.3d
502, 21 BLR 2-398 (6th Cir. 1998)(Boggs, J., concurring; Moore, J., concurring and
dissenting), rev'g Seals v. Glen Coal Co., 19 BLR 1-80 (1995)(en
banc)(Brown, J., concurring). Hamilton v. Island Creek Coal Co., BRB
Nos. 99-0734 BLA and 99-0734 BLA-A (Nov. 20, 2000)(unpub.), slip op. at 6-8.
The Board also instructed the administrative law judge to reconsider his finding
that the Director, Office of Workers' Compensation Programs (the Director), waived
his argument that employer was precluded from controverting the issue of
reimbursement because of untimely responses. Hamilton, BRB Nos. 99-0734 BLA
and 99-0734 BLA-A, slip op. at 7.
On remand, the administrative law judge found that while the Director did not
waive his argument that employer's controversion was not timely, the employer's
controversion was, in fact, made in a timely manner. Decision and Order on Remand
at 4; Erratum at 1-2. The administrative law judge further reviewed the medical
evidence that he was instructed to review and, after making several adjustments,
concluded that a total of $23,861.76 was compensable as treatment for
pneumoconiosis. Employer was thus ordered to reimburse the Trust Fund in that
amount.
On appeal, employer contends that the administrative law judge improperly
considered this claim pursuant to the revised regulation at 20 C.F.R.
§725.701(e) as application of the revised regulation was impermissibly
retroactive. Employer further argues that even if it were appropriate to apply the
new regulations, the administrative law judge erred in awarding medical benefits
as the record contained no reliable evidence that any of the treatments and costs
in this case were related to pneumoconiosis. Lastly, employer argues that the
Board's prior decision to affirm the administrative law judge's discrediting of Dr.
Branscomb's opinion needs to be revisited. Claimant has not filed a brief. The
Director has filed a response brief [4] urging the
Board to affirm most of the administrative law judge's determinations. The
Director contends that while the administrative law judge's award of some medical
charges needs to be vacated and the case remanded for further consideration of
those charges, the remainder of the administrative law judge's award is
affirmable.[5]
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).
Initially, we reject employer's invitation to revisit the issue of the
probative value to be accorded Dr. Branscomb's opinion. Dr. Branscomb stated that
claimant suffered from chronic obstructive pulmonary disease caused by cigarette
smoking and early, simple, "medical pneumoconiosis", which required no treatment
and did not in any way contribute to claimant's chronic obstructive pulmonary
disease. Director's Exhibit 22. The Board held that the administrative law judge
rationally determined that Dr Branscomb's opinion was entitled to little weight.
Hamilton, BRB Nos. 99-0734 BLA and 99-0734 BLA-A, slip op. at 5-6.
Specifically, the Board held that the administrative law judge rationally concluded
that Dr. Branscomb's conclusions were contrary to the premises upon which the
finding of entitlement to medical benefits was based, and that the administrative
law judge's determination was consistent with holding of the Sixth Circuit in
Seals, supra. Employer does not challenge the Board's holding on
this issue and has not pointed to any intervening case law which renders the
administrative law judge's previous findings erroneous. Accordingly, we conclude
that the Board's previous holdings with respect to Dr. Branscomb's opinion
constitutes the law of the case and we will not address employer's assertions on
the matter. See Brinkley v. Peabody Coal Co., 14 BLR 1-147 (1990);
Bridges v. Director, OWCP, 6 BLR 1-988 (1984).
Next, employer contends that the administrative law judge impermissibly
considered this case pursuant to the revised regulations at Section 725.701(e).[6] Employer argues that the recent decision of the
United States Court of Appeals for the District of Columbia Circuit in National
Mining Ass'n v. Department of Labor [Chao], 292 F.3d 849, BLR (D.C. Cir.
2002), aff'g in part and rev'g in part Nat'l Mining Ass'n v. Chao,
160 F.Supp.2d 47, BLR (D.D.C. 2001) held that revised Section 725.701(e)
could not be applied retroactively outside of the Fourth Circuit. Although
employer concedes that the administrative law judge stated that he did not rely on
the presumption codified at Section 725.701(e) and originally enunciated by the
United States Court of Appeals for the Fourth Circuit in Doris Coal Co. v.
Director, OWCP [Stiltner], 938 F.2d 492, 15 BLR 2-135 (4th Cir. 1991), employer
nevertheless contends the administrative law judge erred because his analysis of
the charges for medical treatment in this case fails to specify the basis on which
he relied to find claimant entitled to reimbursement for the charges associated
with this treatment. Specifically, employer argues that the administrative law
judge provides no rationale for determining whether the medical charges in question
were reimbursable other than that provided by the presumption set forth in the
regulations. Thus, employer asserts that the administrative law judge's
application of the presumption in this case is inconsistent with the holding of the
Sixth Circuit in Seals and the administrative law judge's finding must
therefore be vacated.
In analyzing the charges for treatment and other medical expenses, the
administrative law judge indicated that the validity of the revised regulations at
Section 725.701, "which includes the presumption," enunciated in Doris Coal,
was upheld by the United States District Court for the District of Columbia in
Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47, BLR (D.D.C. 2001).
The administrative law judge further noted that, while the District Court's
decision allowed claimant to establish medical benefits through a presumption, he
had nevertheless considered the medical expenses "with particular attention" and
did "not rely merely on the presumption." Decision and Order on Remand at 4.
Considering fourteen separate groups of bills for which the Director requested
reimbursement from the employer, Director's Exhibit 15; Decision and Order on
Remand at 4-7,[7] the administrative law judge
concluded that the total amount of medical expenses related to treatment of
pneumoconiosis, and thus reimbursable by the Black Lung Disability Trust, was
$23,861.76.[8] The administrative law judge also
found that this total included Dr. Leslie's bills. See fn. 6, supra.
In light of the administrative law judge's ambiguous statement, "I do not rely
merely on a presumption," Decision and Order on Remand at 4, the decision of the
D.C. Circuit in Chao, supra, and the holding of the Sixth Circuit in
Seals, supra, we vacate the administrative law judge's findings
regarding the compensability of the medical expenses in this case.[9]
The administrative law judge's analysis of the medical charges in this case
was cursory, Decision and Order on Remand at 4-7, and made no inquiry into the
whether the medical treatment was reasonable and necessary for the treatment of
pneumoconiosis. Further, it is unclear as to whether the administrative law judge
did, in fact, rely on a presumption in this case. On remand, therefore, the
administrative law judge must again review the medical charges in question and make
findings regarding such charges in a manner consistent with the holding of the D.C.
Circuit and the Sixth Circuit in Chao and Seals.
Accordingly, the administrative law judge's Decision and Order on Remand is
affirmed in part, vacated in part and the case is remanded 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) Part B recipients who file Part C claims subsequent to March 1, 1978, such as the instant
claim, see Director's Exhibit 1, are limited to medical benefits only under the Black Lung Benefits Reform
Act. 20 C.F.R. §725.701A; see 30 U.S.C. §924a; Kosh v. Director, OWCP, 8
BLR 1-168, 1-171 (1985), aff'd 791 F.2d 918 (3d Cir. 1986)(table). Claimant was originally found entitled
to Part B benefits by the Social Security Administration. Director's Exhibit 12.
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2) 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 20 C.F.R. Parts 718, 722, 725 and 726 (2002). All citations to the regulations, unless otherwise noted, refer
to the amended regulations.
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3) The full procedural history of this case is set forth in Hamilton v. Island Creek Coal
Co., BRB Nos. 99-0734 BLA and 99-0734 BLA-A (Nov. 20, 2000)(unpub.).
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4) The Director filed an appeal in this case. BRB No. 02-0476 BLA. By Order dated
November 1, 2002, however, the Board granted the Director's motion to withdraw his appeal.
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5) We affirm the administrative law judge's findings regarding the issues of waiver and
timeliness of controversion as these findings are unchallenged on appeal. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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6) Section 725.701, as revised, provides in pertinent part:
(e) If a miner receives a medical service or supply, as described in this section, for any pulmonary
disorder there shall be a rebuttable presumption that the disorder is caused or aggravated by the
miner's pneumoconiosis. The party liable for the payment of benefits may rebut the presumption
by producing credible evidence that the medical service or supply provided was for a pulmonary
disorder apart from those previously associated with the miner's disability or was beyond that
necessary to treat a covered disorder, or was not for a pulmonary disorder at all.
(f) Evidence that the miner does not have pneumoconiosis or is not totally disabled by
pneumoconiosis arising out of coal mine employment is insufficient to defeat a request for
coverage of any medical service or supply under this subpart. In determining whether the
treatment is compensable, the opinion of the miner's treating physician may be entitled to
controlling weight pursuant to §718.104(d). A finding that a medical service or supply is
not covered under this subpart shall not otherwise affect the miner's entitlement to benefits.
20 C.F.R. §725.701(e), (f).
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7) The initial three sets of bills considered by the administrative law judge, those submitted
in connection with treatment by Dr. Leslie were previously considered by the Board and not before us at this time.
Hamilton, BRB Nos. 99-0734 BLA and 99-0734 BLA-A, slip op. at 6. Accordingly, on
remand, the administrative law judge need not address the compensability of these medical charges.
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8) In reaching this determination, the administrative law judge concluded that certain charges
were not compensable as they were unrelated to the treatment of pneumoconiosis. See Decision and Order
on Remand at 4-7. Because the administrative law judge's finding regarding those charges was not challenged, it was
affirmed with respect to those charges. See Skrack, supra.
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9) On appeal the Director agrees with employer that 20 C.F.R.
§725.701(e) which establishes a rebuttable presumption that medical treatment
for pulmonary disease is treatment for pneumoconiosis, does not apply to this case.
The Director notes that in National Mining Ass'n v. Department of Labor
[Chao], 292 F.3d 849, BLR (D.C. Cir. 2002), aff'g in part and rev'g
in part Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47, BLR
(D.D.C. 2001), the United States Court of Appeals for the District of Columbia
Circuit held that Section 725.701(e) may not be applied retroactively in cases
arising outside of the Fourth Circuit.
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NOTE: This is an UNPUBLISHED BLA Document.
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