BRB No. 03-0335 BLA JESSE H. HIGGINS ) ) Claimant-Respondent ) ) v. ) ) DATE ISSUED: 02/10/2004 OLD BEN COAL COMPANY ) ) 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 (Upon Fifth Remand by the Benefits Review Board) of Robert D. Kaplan, Administrative Law Judge, United States Department of Labor.
Harold B. Culley, Jr. (Culley & Wissore), Raleigh, Illinois, for claimant.
W. William Prochot (Greenberg Traurig, LLP), Washington, D.C., for employer.
Sarah M. Hurley (Howard M. Radzely, 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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (1991-BLA-02515) of Administrative Law Judge Robert D. Kaplan awarding benefits on a duplicate 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 This case has a lengthy procedural history.
In the last appeal, the Board rejected employer's contention that it should be dismissed as the responsible operator, and affirmed the administrative law judge's finding that the new evidence established a material change in conditions pursuant to 20 C.F.R. §725.309 (2000), and that the weight of all the evidence of record established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4), and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Higgins v. Old Ben Coal Co., BRB No. 00-0669 BLA (June 29, 2001) (unpub.). In its Order on employer's motion for reconsideration, however, the Board reaffirmed the administrative law judge's findings on the merits, but vacated his finding of a material change in conditions at Section 725.309 (2000), and remanded the case for reconsideration of the evidence consistent with Sahara Coal Co. v. Director, OWCP [McNew], 946 F.2d 554, 15 BLR 2-227 (7th Cir. 1991), and Peabody Coal Co. v. Spese, 117 F.3d 1001, 21 BLR 2-113 (7th Cir. 1997)(en banc), modifying 94 F.3d 369 (7th Cir. 1996). Higgins v. Old Ben Coal Co., BRB No. 00-0669 BLA (Apr. 30, 2002)(unpub. Order).
On remand, the administrative law judge again found that the weight of the new evidence established a material change in conditions at Section 725.309 (2000). Accordingly, benefits were awarded.
In the present appeal, employer challenges the administrative law judge's finding of a material change in conditions at Section 725.309 (2000), and asserts that intervening authority and clearly erroneous factual findings require that the administrative law judge reassess the merits of this claim at Sections 718.202(a)(4) and 718.204(b), (c). Claimant responds, urging affirmance. The Director, Office of Workers' Compensation Programs (the Director), has declined to address the merits of this appeal, but urges the Board to reject employer's argument that intervening authority holds that legal pneumoconiosis is never latent or progressive absent further dust exposure. Employer has also filed a combined reply brief, reasserting its arguments on 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 by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
At Section 725.309 (2000), employer maintains that the administrative law judge's finding of a material change in claimant's condition since the district director's denial of the original claim does not comply with the Board's remand instructions and controlling authority. Specifically, employer argues that the administrative law judge substituted his opinion for that of a qualified physician when he based his finding of a substantial deterioration in claimant's condition on the declining FEV1/FVC ratio in pulmonary function studies over a period of three years. Employer also argues that the administrative law judge failed to explain how claimant's pulmonary function studies demonstrate a substantial worsening in his condition over time, and erroneously relied upon claimant's recitation of his limitations rather than medical evidence to find a deterioration in claimant's physical condition. Employer thus asserts that the administrative law judge's finding of a material change does not comport with McNew and Spese, and that this case must be remanded once again for consideration of the contrary probative evidence and further findings at Section 725.309 (2000). We disagree.
Notwithstanding any possible error made by the administrative law judge relative to his weighing of the pulmonary function study evidence, our review of the administrative law judge's current and previous findings indicates that substantial evidence supports his finding of a material change in conditions pursuant to Section 725.309 (2000).
In his Decision and Order issued on April 4, 1995, the administrative law judge stated that since the district director found the evidence sufficient to establish the existence of pneumoconiosis in the original claim, the administrative law judge would presume the presence of pneumoconiosis and determine whether the new evidence established that claimant's disease had progressed to the point of becoming totally disabling. Consistent with McNew, the administrative law judge properly noted that new evidence which addressed claimant's condition at the time of the prior denial on August 16, 1989, could not establish a material change. The administrative law judge then found that the results of new pulmonary function studies obtained on October 8, 1990 and May 21, 1991 met the regulatory standards for establishing total respiratory disability pursuant to Section 718.204(c)(1) (2000), were valid, and outweighed the contrary probative evidence. The administrative law judge thus concluded that claimant's condition had deteriorated subsequent to the denial of the initial claim such that he was now totally disabled, and that the new medical evidence as a whole established a material change in claimant's condition pursuant to Section 725.309 (2000). 2
On appeal, the Board affirmed the administrative law judge's finding that the weight of the new pulmonary function studies established total respiratory disability pursuant to Section 718.204(c)(1) (2000), see Higgins v. Old Ben Coal Co., BRB No. 95-1370 BLA at 3 (Apr. 29, 1996)(unpub.). The Board also subsequently affirmed the administrative law judge's finding that the new qualifying pulmonary function studies outweighed the contrary probative evidence and established that claimant's respiratory impairment is now totally disabling pursuant to Section 718.204(c) (2000), see Higgins v. Old Ben Coal Co., BRB No. 98-1916 BLA at 5 (Sep. 30, 1999)(unpub.). Because substantial evidence supports the administrative law judge's finding that the new medical evidence, buttressed by claimant's credible testimony, 3 demonstrates a substantial deterioration in claimant's respiratory condition since the prior denial consistent with McNew and Spese, see Decision and Order at 3-5, we affirm his finding that claimant established a material change in conditions at Section 725.309 (2000).
Turning to the merits, employer requests that the Board reconsider its prior affirmance of the administrative law judge's disability causation findings in light of intervening authority. Citing Zeigler Coal Co. v. Director, OWCP [Villain], 312 F.3d 322, 22 BLR 2-582 (7 th Cir. 2002), and Nat'l Mining Ass'n v. United States Dept. of Labor, 292 F.3d 849 (D.C. Cir. 2002), for the proposition that latent and progressive pneumoconiosis is rare, employer asserts that because claimant was not disabled by pneumoconiosis in 1989, Drs. Rao and Kelly were required to explain how claimant's pneumoconiosis could have progressed to total disability thereafter absent further exposure. Employer's reliance on this authority is misplaced, as there is no requirement that claimant prove that his pneumoconiosis is one of those rare latent and progressive cases.
Employer also asserts its previously raised contentions that the administrative law judge erred in determining that claimant is seventy-one inches tall for purposes of reviewing the pulmonary function study evidence, and erred in his weighing of the conflicting evidence on the issues of the existence of pneumoconiosis at Section 718.202(a)(4), and total disability due to pneumoconiosis at 718.204(b), (c). The Board's previous disposition of these issues constitutes the law of the case, and we decline to revisit these issues since there is no persuasive evidence that the law of the case doctrine is inapplicable, or that an exception has been demonstrated. See Coleman v. Ramey Coal Co., 18 BLR 1-9 (1993); Brinkley v. Peabody Coal Co., 14 BLR 1-147 (1990); Bridges v. Director, OWCP, 6 BLR 1-988 (1984). Consequently, we affirm the award of benefits.
Accordingly, the administrative law judge's Decision and Order awarding benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL Administrative Appeals Judge
1. The Department of Labor (DOL) 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 specified, refer to the amended regulations.
2. Contrary to employer's arguments, the mere fact that the original claim record contained a pulmonary function study dated July 5, 1988 which produced qualifying values does not establish that claimant had a long-standing disability misassessed by the district director in denying the prior claim.
3. The administrative law judge credited claimant's testimony that despite having breathing problems since approximately 1982, he was able to perform his usual coal mine employment duties until he retired in June 1988, but that his respiratory condition progressively deteriorated so that by the time of the hearing on January 14, 1992, claimant was able to walk only a block or so. Decision and Order at 4-5. Contrary to employer's arguments, the fact that claimant retired prior to the filing of his duplicate claim does not preclude claimant from entitlement to benefits by establishing that claimant was disabled due to old age before he became disabled by pneumoconiosis.