BRB No. 99-0377 BLA
JOHN H. JOHNSON
Claimant-Petitioner
v.
CONSOLIDATION COAL COMPANY
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
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DATE ISSUED:
01/06/2000
DECISION and ORDER
Appeal of the Decision and Order on Remand of Clement J. Kichuk,
Administrative Law Judge, United States Department of Labor.
Sparkle Bonds (Virginia Black Lung Association), Richlands, Virginia,
for claimant.
Kathy L. Snyder (Jackson & Kelly PLLC), Morgantown, West Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (94-BLA-0634) of
Administrative Law Judge Clement J. Kichuk 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). This case
is before the Board for the fifth time. In the Board's previous decision, we
discussed fully the procedural history of this claim. Johnson v. Consolidation
Coal Co., BRB No. 97-0775 BLA at 2 (Feb. 27, 1998)(unpub.). We now focus only
on those procedural aspects relevant to the arguments raised in this appeal.
In a Decision and Order on Remand issued on April 10, 1990, Administrative Law
Judge Edward J. Murty found that the evidence of record failed to establish
invocation of the interim presumption of total disability due to pneumoconiosis
pursuant to 20 C.F.R. §727.203(a)(1)-(4). Director's Exhibit 68.
Accordingly, he denied benefits. The Board affirmed Judge Murty's findings
pursuant to Section 727.203(a)(1)-(4) and therefore affirmed the denial of
benefits. Johnson v. Consolidation Coal Co., BRB No. 90-1434 BLA (Feb. 26,
1992)(unpub.); Director's Exhibit 78. Claimant timely requested modification of
the denial pursuant to 20 C.F.R. §725.310 and submitted additional medical
evidence. Director's Exhibit 81.
On modification, Administrative Law Judge Edith Barnett concluded that the new
evidence considered in conjunction with the evidence originally submitted did not
establish invocation pursuant to Section 727.203(a)(1)-(4) and thus failed to
demonstrate a change in conditions pursuant to Section 725.310. Consequently, she
denied benefits. Pursuant to claimant's appeal, the Board affirmed Judge Barnett's
findings pursuant to Section 727.202(a)(1), (3), but vacated her findings pursuant
to Section 727.203(a)(2), (4) and remanded the case for her to reconsider
invocation at these subsections. Johnson v. Consolidation Coal Co., BRB No.
95-1014 BLA (May 23, 1996)(unpub.). On remand, Judge Barnett found that invocation
was not established pursuant to Section 727.203(a)(2), (4) and therefore found that
a change in conditions was not established pursuant to Section 725.310. On appeal,
the Board affirmed Judge Barnett's finding pursuant to Section 727.203(a)(2), but
vacated her finding at Section 727.203(a)(4) and remanded the case for her to
reweigh a medical opinion by Dr. Forehand and determine whether it established a
change in conditions. [1998] Johnson, slip op. at 4-5. The Board also
instructed the administrative law judge to determine whether a mistake in a
determination of fact was made in the denial of claimant's claim.
Because Judge Barnett was no longer with the Office of Administrative Law
Judges, on remand the case was transferred without objection to Administrative Law
Judge Clement J. Kichuk. Pursuant to Section 727.203(a)(4), Judge Kichuk found
that Dr. Forehand's medical opinion diagnosing a totally disabling respiratory
impairment was outweighed by the contrary opinions of more highly qualified
physicians who opined that claimant retained the respiratory capacity to perform
his usual coal mine employment. Consequently, the administrative law judge found
that Dr. Forehand's medical opinion did not invoke the interim presumption of total
disability due to pneumoconiosis and therefore did not establish a change in
conditions pursuant to Section 725.310. Additionally, the administrative law judge
found pursuant to Section 725.310 that a "review of all the medical evidence of
record" did not demonstrate a mistake in a determination of fact in the previous
denials. Accordingly, he denied benefits.
On appeal, claimant contends that the administrative law judge erred in his
weighing of the medical opinions pursuant to Section 727.203(a)(4). Claimant
further asserts that the administrative law judge erred in finding that there had
been no mistake of fact in this case. Employer responds, urging affirmance, and
the Director, Office of Workers' Compensation Programs (the Director), has declined
to participate in this appeal.
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 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).
To establish invocation of the interim presumption of total disability due to
pneumoconiosis pursuant to Section 727.203(a)(4), claimant must establish by
reasoned medical opinion evidence that he suffers from a totally disabling
respiratory or pulmonary impairment. 20 C.F.R. §727.203(a)(4). The
administrative law judge exercises broad discretion in weighing the medical
opinions. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 21 BLR 2-323, 2-335 (4th. Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 441, 21 BLR 2-269, 2-275-76 (4th Cir. 1997); Trumbo v. Reading Anthracite
Co., 17 BLR 1-85, 1-88-89 and n.4 (1993).
The administrative law judge was instructed to reweigh Dr. Forehand's July 21,
1992 medical report. In this report, Dr. Forehand relied upon claimant's July 21,
1992 qualifying[1] blood gas study results, a
history of forty-eight years of coal mine employment, and x-ray evidence of
interstitial thickening to diagnose a "pulmonary impairment of a gas exchange
nature, due, in part, to chronic exposure to coal dust, or coal workers'
pneumoconiosis." Director's Exhibit 81. The administrative law judge noted that
Dr. Forehand is Board-certified in Internal Medicine, and compared his opinion with
those of Drs. Sargent and Fino, who are Board-certified in Internal Medicine and
Pulmonary Disease.
Dr. Sargent examined and tested claimant and reviewed the medical evidence of
record. Dr. Sargent opined that claimant's objective test data and examination
findings revealed that claimant has a "very mild" respiratory impairment that would
not prevent him from performing the work of a section foreman, as claimant
described it. Employer's Exhibit 4, Deposition Exhibit 1 at 2. Dr. Fino reviewed
the medical evidence of record and similarly concluded that claimant has a mild
respiratory impairment that would not keep him from performing the duties of a
section foreman, as Dr. Fino understood claimant's description of the job.
Employer's Exhibits 2, 3.
The administrative law judge found that the non-disability opinions of Drs.
Sargent and Fino outweighed Dr. Forehand's report. The administrative law judge
accorded greater weight to the reports of Drs. Sargent and Fino because he found
that they were more highly qualified, had a more complete picture of claimant's
health, and submitted better reasoned opinions. Decision and Order on Remand at
5-6. Accordingly, the administrative law judge declined to invoke the interim
presumption pursuant to Section 727.203(a)(4).
Claimant contends that the administrative law judge erred in finding Dr.
Sargent's opinion reasoned when Dr. Sargent did not perform an exercise blood gas
study. Claimant's Brief at 3. Dr. Sargent administered a resting blood gas study
on January 31, 1994 which was non-qualifying, and concluded that the test showed
"no defect in oxygenation." Employer's Exhibit 4, Deposition Exhibit 1 at 1.
Claimant asserts that Dr. Sargent should have performed an exercise blood gas
study, but for claims adjudicated under Part 727, the applicable quality standards
for medical tests found at 20 C.F.R. Part 410 do not require an exercise study.
See Coleman v. Ramey Coal Co., 18 BLR 1-9, 1-14-15 (1993); Pezzetti v.
Director, OWCP, 8 BLR 1-464, 1-465-66 (1986). Moreover, Dr. Sargent based his
opinion not only upon the non-qualifying resting blood gas study that he obtained,
but also reviewed the resting and exercise blood gas studies performed by other
physicians and concluded that claimant has a normal blood gas response to
exercise.[2] Employer's Exhibit 4 at 23.
Therefore, we reject claimant's contention and hold that the administrative law
judge acted within his discretion in finding Dr. Sargent's opinion to be adequately
reasoned. See Hicks, supra; Akers, supra; Trumbo, supra.
Claimant next argues that the administrative law judge erred in crediting the
opinions of Drs. Sargent and Fino when they ignored qualifying pulmonary function
study values. Claimant's Brief at 3-4. Specifically, claimant points to the
January 31, 1994 pulmonary function study, which was qualifying before the
administration of a bronchodilator but non-qualifying post-bronchodilator.
Employer's Exhibit 4, Deposition Exhibit 1 at 8. Contrary to claimant's
contention, however, Drs. Sargent and Fino did not ignore these values. They
considered the January 31, 1994 pulmonary function study results along with the
results of the other pulmonary function studies of record and concluded that these
tests indicated the presence of a mild impairment that was not sufficient to
prevent claimant from performing the duties of his job as a section foreman.
Employer's Exhibits 2-4; see Walker v. Director, OWCP, 927 F.2d 181, 183,
15 BLR 2-16, 2-22 (4th Cir. 1991). Since Drs. Sargent and Fino addressed the
relevant pulmonary function study results, see Beavan v. Bethlehem Mines
Corp., 741 F.2d 689, 691, 6 BLR 2-101, 2-109 (4th Cir. 1984), and explained how
the objective data overall supported their opinions that claimant is not disabled,
substantial evidence supports the administrative law judge's finding that their
opinions are adequately reasoned pursuant to Section 727.203(a)(4).[3] See Hoffman v. B & G Construction Co.,
8 BLR 1-65, 1-66-67 (1985)(physician may properly find a claimant not totally
disabled even though studies reveal qualifying results). Accordingly, we affirm
the administrative law judge's finding that invocation was not established pursuant
to Section 727.203(a)(4) and his conclusion that therefore a change in conditions
was not established pursuant to Section 725.310.
Claimant asserts that because the record contains qualifying pulmonary
function studies, all of the previous administrative law judge determinations that
invocation was not established pursuant to Section 727.203(a)(2) were mistakes and
therefore, Judge Kichuk's finding that the record did not demonstrate a mistake of
fact was erroneous. Claimant's Brief at 8-9. In the several adjudications of this
claim, the various administrative law judges found that the qualifying pulmonary
function study values did not invoke the interim presumption pursuant to Section
727.203(a)(2) because some studies did not comply with the applicable quality
standards, and because on other studies, the non-qualifying post-bronchodilator
values weighed against invocation.[4] Based upon
his review of the record on remand, Judge Kichuk indicated that he agreed with the
prior administrative law judges' conclusion "that the evidence before them was not
sufficient to invoke the interim presumption," and accordingly found within his
discretion that "there was no mistake in [a] determination of fact in the earlier
denials to the extent they were affirmed by the Benefits Review Board." Decision
and Order on Remand at 6. The administrative law judge properly reviewed the
entire record for a mistake of fact. See Jessee v. Director, OWCP, 5 F.3d
723, 18 BLR 2-26 (4th Cir. 1993). Therefore, we affirm the administrative law
judge's finding that no mistake of fact was demonstrated pursuant to Section
725.310.
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) A "qualifying" objective study yields values which are equal to or less than the values
specified in the tables at 20 C.F.R. §727.203(a)(2), (3). A "non-qualifying" study exceeds those values.
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2) Four of the five blood gas studies of record yielded non-qualifying values. Director's
Exhibits 16, 32, 33, 81; Employer's Exhibit 4.
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3) Because Drs. Sargent and Fino explicitly considered the nature of claimant's job duties
as a section foreman, we reject claimant's argument that Drs. Sargent and Fino failed to consider this information.
Claimant's Brief at 4.
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4) The record contains eight pulmonary function studies, of which five yielded qualifying
values. Director's Exhibits 10, 11, 32, 33, 41, 81; Employer's Exhibit 4, Deposition Exhibit 1 at 8. Of these five
studies, four were qualifying pre-bronchodilator but non-qualifying post-bronchodilator, and another was found to be
an invalid study.
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NOTE: This is an UNPUBLISHED BLA Document.
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