BRB No. 02-0558 BLA
GARY F. FARBER )
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Claimant-Petitioner )
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v. )
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WILLIAM F. SCHICKRAM ) DATE ISSUED:02/24/2003
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and )
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CONSTITUTION STATE SERVICE )
COMPANY )
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Employer/Carrier-Respondent )
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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 of Robert D. Kaplan, Administrative Law
Judge, United States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Ross A. Carrozza (Marshall, Dennehey, Warner, Coleman & Goggin),
Scranton, Pennsylvania, for employer.
Before: SMITH, McGRANERY, and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (01-BLA-0222) of Administrative Law
Judge Robert D. Kaplan denying 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).[1] In
this duplicate claim, the administrative law judge found that claimant established
seven years of coal mine employment,[2] but found
that claimant failed to establish a material change in conditions as he failed to
establish any element of entitlement previously adjudicated against him.
Accordingly, benefits were denied.
On appeal, claimant contends that the x-ray and medical opinion evidence
establish the existence of pneumoconiosis and that the pulmonary function study and
medical opinion evidence establish a totally disabling respiratory impairment.
Employer responds, urging affirmance of the administrative law judge's Decision and
Order denying benefits. The Director, Office of Workers' Compensation Programs
(the Director), is not participating 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).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must prove that he suffers 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. Failure to establish any one of these elements precludes
entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v.
Director, OWCP, 9 BLR 1-1 (1986)(en banc).
Claimant first argues that the administrative law judge erred in not finding
the existence of pneumoconiosis and a material change in conditions established.
Specifically, claimant contends that his due process right to have his claim fully
and fairly considered was violated when the administrative law judge limited the
parties to the submission of an equal number of x-ray interpretations, and then
determined that claimant failed to establish the existence of pneumoconiosis
because the x-ray readings of record were in equipoise. Claimant further contends
that the administrative law judge's reasoning on this issue violates the
Administrative Procedure Act (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) because the administrative law judge failed to fully explain the bases
for his decision, the weight assigned to the evidence, and the relationship between
the evidence and his legal and factual conclusions.
In the notice of hearing, the administrative law judge ordered that a maximum
of three interpretations of each x-ray would be received in the record from each
party, unless fairness required additional readings. Notice of Hearing and Order
Limiting X-ray Interpretations dated January 18, 2001. While objecting to the
admission of several other items of evidence, see Hearing Transcript at 5-26, claimant never objected to the administrative law judge's order limiting the
number of admissible x-ray interpretations. Accordingly, because claimant did not
raise this argument before the administrative law judge, he has waived his right
to raise it before the Board. See Kurcaba v. Consolidation Coal Co., 9 BLR
1-73 (1986); Lyon v. Pittsburgh & Midway Coal Co., 7 BLR 1-199 (1984).
Moreover, claimant has not proferred any explanation for his assertion that the
limitations placed on the submission of x-ray interpretations by the administrative
law judge in this case violated his due process right to a full and fair hearing
other than to assert such limitations resulted in evidence which was in equipoise;
nor has he shown that the administrative law judge erred in finding that the x-ray
evidence in this case failed to establish the existence of pneumoconiosis. See
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); see also 5 U.S.C. §556(d);
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 950, 21 BLR 2-23, 2-30-31
(4th Cir. 1997).
Claimant next contends that the administrative law judge erred in crediting
Dr. Levinson's opinion regarding the existence of pneumoconiosis as more thorough
and detailed over the opinions of claimant's two treating physicians, Drs. Raymond
and Matthew Kraynak, without considering their status as treating physicians and
without considering that Dr. Raymond Kraynak also reviewed all of the evidence.
In finding that the medical opinion evidence did not establish the existence
of pneumoconiosis, the administrative law judge accorded greater weight to Dr.
Levinson's opinion of no pneumoconiosis, than to the contrary opinions by Drs.
Raymond and Matthew Kraynak, because he found Dr. Levinson's opinion more thorough
and detailed, and because his credentials were superior to those of both Drs.
Kraynak. This was rational. See Dillon v. Peabody Coal Co., 11 BLR
1-113 (1988). Further, contrary to claimant's contention, the administrative law
judge recognized the status of the treating physicians and, citing Section 718.104,
nonetheless found that their opinions were not entitled to greater weight. This
was permissible. See 20 C.F.R. §718.104(d)(5). The administrative law
judge further found that on reviewing all the relevant medical evidence together
at Section 718.202(a)(1)-(4), claimant failed to establish the existence of
pneumoconiosis. This was proper. See Penn Allegheny Coal Co. v. Williams,
114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997). Accordingly, we affirm the
administrative law judge's finding that claimant failed to establish the existence
of pneumoconiosis and, therefore, a material change in conditions. See Labelle
Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995).
Claimant next contends that the administrative law judge erred in finding that
total disability and a material change in conditions were not established based on
a qualifying pulmonary function study. Specifically, claimant contends that the
administrative law judge's reasoning that the qualifying study was invalid due to
the greater number of invalidations of the study by better qualified physicians was
improper. Contrary to claimant's contention, the administrative law judge may
accord greater weight to the invalidations of a study by physicians with superior
qualifications. See Dillon, supra; see also Siegel v. Director,
OWCP, 8 BLR 1-156, 1-157 (1985)(Brown, J., dissenting). Moreover, regarding
claimant's argument as to the probative value of the non-qualifying pulmonary
function study which had also been invalidated by some physicians, the
administrative law judge did not substitute his medical opinion for that of the
physicians when he noted that the non-qualifying pulmonary function study was more
probative of claimant's condition than the qualifying pulmonary function study:
Pulmonary function tests are effort-dependent, and it is generally
accepted that spuriously low values are possible but spuriously high
values are not. Therefore, the later study with its higher values would
tend to be a more reliable indicator of Claimant's current lung function
than the August 2, 2000 study. See Andruscavage v. Director,
OWCP, No. 93-3291, slip. op. at 9-10 (3d Cir., February 22,
1994)("medical literature supports...the conclusion that [pulmonary
function studies] which return disparately higher values tend to be more
reliable indicators of an individual's respiratory capacity than those
with lower values").
Decision and Order at 9. Thus, despite some invalidations, the administrative law
judge permissibly found the non-qualifying study to have probative value. See
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 113 (1989); Brown v.
Director, OWCP, 7 BLR 1-730, 1-732 (1985); Maypray v. Island Creek Coal
Co., 7 BLR 1-683, 1-685 (1985). Accordingly we affirm the administrative law
judge's finding that the pulmonary function study evidence did not establish total
disability at Section 718.204(b)(2)(i).
Finally, claimant contends that the administrative law judge did not properly
consider the medical opinion evidence relevant to total disability and erred in
finding that it did not establish total disability and, therefore, a material
change in conditions. We reject claimant's argument that the administrative law
judge erred in discrediting the opinions of Drs. Raymond and Matthew Kraynak
without sufficiently discussing the reasons for doing so. Contrary to claimant's
argument, the administrative law judge permissibly accorded less weight to the
opinions of Drs. Raymond and Matthew Kraynak because the pulmonary function study
they relied on in making their determination was subsequently invalidated by
pulmonary specialists. See Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291
(1984); Winters v. Director, OWCP, 6 BLR 1-877, 1-881 n.4 (1984). Likewise,
contrary to claimant's contention, the administrative law judge was not required
to accord greater weight to the opinions of Drs. Raymond and Matthew Kraynak
because they were treating physicians when he found that their opinions were not
as credible as the opinion of Dr. Levinson. See 20 C.F.R.
§718.104(d)(5); Balsavage v. Director, OWCP, 295 F.3d 390, BLR
(3d Cir. 2002); Lango v. Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d
Cir. 1997); see also Peabody Coal Co. v. Groves, 277 F.3d 829, 834, 22 BLR
2-320, 2-326-327 (6th Cir. 2002), cert. denied, U.S. , 2003
WL 102516 (U.S. Jan. 13, 2003); Sterling Smokeless Coal Co. v. Akers, 131
F.3d 438, 21 BLR 2-269 (4th Cir. 1997); Milburn Colliery Co. v. Hicks, 138
F.3d 524, 21 BLR 2-323 (4th Cir. 1998). Accordingly, we affirm the administrative
law judge's finding that the medical opinion evidence did not establish total
disability and a material change in conditions on that basis. See Swarrow,
supra.
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
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 20
C.F.R. Parts 718, 725 and 726 (2002). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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2) This finding is affirmed as unchallenged on appeal. 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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