BRB No. 02-0718 BLA
BILLY F. McNEELY )
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Claimant-Petitioner )
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v. )
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ZEIGLER COAL COMPANY ) DATE ISSUED:06/13/2003
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Employer-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-Denial of Benefits of Robert L.
Hillyard, Administrative Law Judge, United States Department of Labor.
Joseph Kelley (Monhollon & Kelley, P.S.C.), Madisonville, Kentucky, for
claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order-Denial of Benefits
(01-BLA-0324) of Administrative Law Judge Robert L. Hillyard 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] After consideration of the newly submitted evidence, the administrative law
judge concluded that claimant was unable to establish the existence of pneumoconiosis, the
element of entitlement previously adjudicated against claimant. Decision and Order at 19-24.
[2] The administrative law judge, therefore, found that claimant failed
to establish a material change in conditions. Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge erred in admitting
Employer's Exhibits 3-8 into evidence. Claimant also argues that the administrative law
judge erred in failing to conclude that certain medical opinion evidence supported a finding
of legal pneumoconiosis and thus a material change in conditions.[3] Lastly, claimant argues that the evidence of record establishes the presence
of a totally disabling respiratory impairment due to pneumoconiosis. Employer, in response,
urges affirmance of the administrative law judge's denial of benefits. The Director, Office
of Workers' Compensation Programs (the Director), has not filed a brief 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).
Claimant first asserts that the administrative law judge erred in admitting Employer's
Exhibits 3-8, consulting opinions and additional x-ray readings, into the evidentiary record.
Claimant argues that that evidence was "unduly repetitious" and should have been excluded
by the administrative law judge based on the requirement of the Administrative Procedure
Act, 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), that an
administrative law judge "shall provide for the exclusion of irrelevant, immaterial or unduly
repetitious evidence." 5 U.S.C. §556(b). Claimant argues that since the reports of Drs.
Repsher and Renn, Employer's Exhibit 3, 4, and depositions of Drs. Renn, Tuteur, Repsher
and Wiot, Employer's Exhibits 5-8, consulting physicians, were based on the same medical
information already in the record, they were unduly repetitious and, as such, highly
prejudicial to claimant. In fact, claimant contends that since all of the opinions were based
on the same information, they should have been considered as one medical opinion.
Claimant's assertion is rejected. An administrative law judge is granted broad
discretion in resolving procedural disputes and his determinations will be vacated only if he
has committed a clear abuse of the discretion given to him. See Troup v. Reading
Anthracite Coal Co., 22 BLR 1-11 (1999); Clark v. Karst-Robbins Coal Co.,
12 BLR 1-149 (1989)(en banc); Morgan v. Director, OWCP, 8 BLR 1-491
(1986); Farber v. Island Creek Coal Co., 7 BLR 1-428 (1984). In this case, the
administrative law judge did not abuse his discretion in admitting Employer's Exhibits 3-8
as he found that they contained well-reasoned opinions of highly qualified physicians and
were therefore relevant and probative. See Troup, supra. [4] The administrative law judge's admission of Employer's Exhibits 3-8 into evidence
is, therefore, affirmed.
Claimant next asserts that the administrative law judge erred in concluding that the
newly submitted medical opinion evidence failed to establish the existence of legal
pneumoconiosis and thus erred in failing to find a material change in conditions was
established. Specifically, claimant argues that the newly submitted opinions of Drs. Simpao,
Director's Exhibit 7, Buchanan, Director's Exhibit 29, Khan, Director's Exhibit 9, and West,
Director's Exhibit 9, all support a finding of legal pneumoconiosis. Claimant argues that the
administrative law judge erred in relying upon the contrary opinions of Drs. Renn,
Employer's Exhibits 4, 5, Repsher, Employer's Exhibits 3, 7, Selby, Director's Exhibit 22,
and Tuteur, Employer's Exhibits 2, 6, as none of these physicians, except Dr. Selby,
considered whether claimant suffered from an occupationally acquired pulmonary disease,
i.e., legal pneumoconiosis. Claimant argues that Dr. Selby's opinion was not
reasoned and should, therefore, have been accorded little weight. In conjunction with these
assertions, claimant argues that the consulting opinions of Drs. Tuteur, Repsher and Renn
should not be considered in determining whether claimant established a material change in
conditions because they were based on medical evidence previously developed and did not,
therefore, constitute new evidence.
Initially, we reject claimant's assertion that the consulting opinions of Drs. Tuteur,
Repsher and Renn do not constitute new evidence. A review of the opinions demonstrates
that the physicians addressed new medical evidence as well as previously submitted medical
evidence in reaching their medical determinations. See Employer's Exhibits 2-7.
Accordingly, we conclude that such evidence does constitute "new" evidence. See
Peabody Coal Co. v. Spese, 117 F.3d 1001, 21 BLR 2-113 (7th Cir. 1997); Sahara
Coal Co. v. Director, OWCP [McNew], 946 F.2d 554, 15 BLR 2-227 (7th Cir. 1991).
In considering the newly submitted medical opinion evidence of record, the
administrative law judge permissibly found the opinions of Drs. Renn, Repsher, Selby,
Tuteur and Wiot to be entitled to the greatest weight based on the superior qualifications of
those doctors. This was permissible. Decision and Order at 23; Dillon v. Peabody Coal
Co., 11 BLR 1-113 (1988); Martinez v. Clayton Coal Co., 10 BLR 1-24 (1987);
Wetzel v. Director, OWCP, 8 BLR 1-139 (1985). Further, contrary to claimant's
assertion, Drs. Tuteur, Repsher, Renn and Selby all concluded that claimant did not suffer
from a pulmonary disease arising out of coal mine employment. Their opinions are not,
therefore, supportive of a finding of legal pneumoconiosis. 20 C.F.R
§§718.201, 718.202(a)(4).
Turning to the opinions supportive of a finding of pneumoconiosis, the administrative
law judge permissibly found that the opinions of Drs Buchanan and Simpao, diagnosing the
existence of the disease, were entitled to little weight as the physicians provided no bases for
their conclusions. See York v. Jewell Ridge Coal Corp., 7 BLR 1-766 (1985);
Oggero v. Director, OWCP, 7 BLR 1-860 (1985); Cooper v. United States Steel
Corp., 7 BLR 1-842 (1985). Further, the administrative law judge permissibly
concluded that Dr. Khan's diagnosis of coal workers' pneumoconiosis was entitled to
diminished weight because the opinion was based on pulmonary function study evidence,
see Trent v. Director, OWCP, 11 BLR 1-26 (1987), and x-ray findings which were
disputed by better qualified radiologists; see Winters v. Director, OWCP, 6 BLR 1-877 (1984). Additionally, the administrative law judge found that Dr. West's opinion of
pneumoconiosis was an old opinion which failed to take into account new medical evidence.
The administrative law judge also found that Dr. West failed to sufficiently explain his
conclusions. Decision and Order at 23. Thus the administrative law judge permissibly found
his opinion entitled to diminished weight. See Clark, supra; Peskie v.
United States Steel Corp., 8 BLR 1-126 (1985); Lucostic v. United States Steel
Corp. 8 BLR 1-46 (1985). Accordingly, the administrative law judge concluded that the
weight of the new opinion evidence was not supportive of a finding of pneumoconiosis. 20
C.F.R. §§718.201, 718.202; see Clark, supra; Peskie, supra;
Lucostic, supra.
Claimant's contentions regarding the administrative law judge's weighing of the
medical opinion evidence are tantamount to a request that the Board reweigh the evidence
of record, which is outside the Board's scope of review. See Anderson v. Valley Camp
of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal Co., 12 BLR
1-20 (1988). The administrative law judge has reviewed all of the newly submitted medical
opinion evidence pertaining to the existence of pneumoconiosis. Substantial evidence
supports his ultimate conclusion that the evidence fails to establish a material change in
conditions by establishing the existence of pneumoconiosis. Because the new medical
evidence fails to establish the existence of pneumoconiosis, the element of entitlement
previously adjudicated against claimant, we affirm the administrative law judge's finding that
claimant has failed to establish a material change in conditions and must therefore affirm the
denial of benefits, see Spese, supra; McNew, supra, and
we need not, therefore, reach claimant's contention that total disability due to
pneumoconiosis is established based on the evidence of record. See Spese,
supra; McNew, supra.
Accordingly, the administrative law judge's Decision and Order-Denial of Benefits
is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
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 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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2) Claimant first filed a claim for benefits on December 7, 1982.
Director's Exhibit 30. On September 20, 1988, Administrative Law Judge Ralph Musgrove
denied benefits because claimant failed to establish the existence of pneumoconiosis.
Director's Exhibit 30. Claimant appealed to the Board, but the Board dismissed the appeal
as untimely. Director's Exhibit 30; McNeely v. Zeigler Coal Co., BRB No. 88-4280
BLA (Order)(Feb. 28, 1989). Claimant took no further action until the filing of the instant,
duplicate, claim on October 4, 1999. Director's Exhibit 1.
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3) A review of the administrative law judge's Decision and Order
demonstrates that while the administrative law judge recognized the presence of newly
submitted x-ray evidence, i.e., x-ray interpretations submitted subsequent to the prior
denial of benefits, he failed to make a specific inquiry into whether such evidence on the
whole supported a finding of the existence of pneumoconiosis pursuant to Section
718.202(a)(1). Claimant failed, however, to allege that the administrative law judge erred
in not discussing the x-ray evidence. The administrative law judge listed all the x-ray
findings. A review of the evidence demonstrates that it is overwhelmingly negative for the
existence of pneumoconiosis. Accordingly, we will not discuss the x-ray evidence. See
Sarf v. Director, OWCP, 10 BLR 1-119 (1987); Fish v. Director, OWCP, 6 BLR
1-107 (1983). Director's Exhibits 7, 9, 17-22, 27.
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4) While the revised regulations place limits on the amount of
evidence that may be admitted, see 20 C.F.R. §725.414, the regulations do not
apply in this case which was pending on January 19, 2001. 20 C.F.R. §725.2(c).
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NOTE: This is an UNPUBLISHED BLA Document.
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