BRB No. 00-0613 BLA
PAUL JOHNSON )
)
Claimant-Petitioner )
)
v. )
)
PEABODY COAL COMPANY ) DATE ISSUED:03/29/2001
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Denying Living Miner's Benefits of John
M. Vittone, Administrative Law Judge, United States Department of Labor.
Paul Johnson, Kayenta, Arizona, pro se.
Michael J. Pollack (Arter & Hadden LLP), Washington, D.C., for employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] without the assistance of
counsel, appeals the Decision and Order Denying Living Miner's Benefits (98-BLA-0813) of Administrative Law Judge John M. Vittone 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] Adjudicating this claim pursuant to 20 C.F.R. Part 718 (2000), the
administrative law judge credited the parties' stipulation that claimant
established twenty-six years of qualifying coal mine employment. Next, the
administrative law judge found that claimant established the existence of
pneumoconiosis by biopsy evidence, but failed to establish total respiratory
disability. The administrative law judge found further that, because claimant
failed to establish the existence of complicated pneumoconiosis, he failed to
establish invocation of the irrebuttable presumption of total disability due to
pneumoconiosis pursuant to 20 C.F.R. §718.304 (2000). Accordingly, the
administrative law judge denied benefits.
On appeal, claimant generally challenges the administrative law judge's denial
of benefits. Employer responds to this appeal, urging affirmance of the denial.
The Director, Office of Workers' Compensation Programs (the Director), has filed
a letter indicating his intention not to participate in this appeal.
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief and stayed, for the duration of the lawsuit, all
claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determines that the
regulations at issue in the lawsuit will not affect the outcome of the case.
National Mining Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction). In the present case, the Board
established a briefing schedule by order issued on February 21, 2001, to which the
Director and employer have responded.[3] Based
on the briefs submitted by the parties, and our review, we hold that the
disposition of this case is not impacted by the challenged regulations. Therefore,
the Board will proceed to adjudicate the merits of this appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Co., 12 BLR 1-176
(1989). We must affirm the administrative law judge's Decision and Order if the
findings of fact and conclusions of law are rational, supported by substantial
evidence, and in accordance with law. 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).
Initially, we address the administrative law judge's determination that
claimant was not entitled to invocation of the irrebuttable presumption of total
disability due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C.
§921(c)(3), as implemented by 20 C.F.R. §718.304(a)-(c) as the evidence
of record failed to establish the existence of complicated pneumoconiosis.[4] In determining whether the existence of
complicated pneumoconiosis has been established, the administrative law judge shall
first determine whether the relevant evidence in each category under Section
718.304(a)-(c) tends to establish the existence of complicated pneumoconiosis, and
then must weigh together the evidence at subsections (a), (b) and (c) before
determining whether invocation of the irrebuttable presumption pursuant to Section
718.304 has been established. Lester v. Director, OWCP, 993 F.2d 1143, 17
BLR 2-114 (4th Cir. 1993); Melnick v. Consolidation Coal Co., 16 BLR 1-31
(1991)(en banc).[5]
Further, the United States Court of Appeals for the Fourth Circuit, within
whose jurisdiction this case arises, has explained that although there are, "three
different ways to establish the existence of statutory complicated pneumoconiosis
for purposes of invoking the irrebuttable presumption, these clauses are intended
to describe a single, objective condition." Moreover, " [b]ecause prong (A) set
out an entirely objective scientific standard' -- i.e. an opacity on an x-ray greater than one centimeter-- x-ray evidence provides the benchmark for
determining what under prong (B) is a massive lesion' and what under prong (C) is
an equivalent diagnostic result reached by other means." Eastern Associated Coal
Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 256, 22 BLR 2-93, 2-100 (4th
Cir. 2000), citing Double B. Mining, Inc. v. Blankenship, 177 F.3d 240, 243,
BLR (4th Cir. 1999). Additionally, the Fourth Circuit court
held that, "... even where some x-ray evidence indicates opacities that would
satisfy the requirements of prong (A), if other x-ray evidence is available or if
evidence is available that is relevant to an analysis under prong (B) or prong (C),
then all of the evidence must be considered and evaluated to determine whether the
evidence as a whole indicates a condition of such severity that it would produce
opacities greater than one centimeter in diameter on an x-ray." Scarbro,
220 F.3d at 256, 22 BLR at 2-101; see Blankenship, 177 F.3d at 243-44,
BLR . However, "...x-ray evidence can lose force only if other
evidence affirmatively shows that the opacities are not there or are not what they
seem to be, perhaps because of an intervening pathology, some technical problem
with the equipment used, or incompetence of the reader." Scarbro,
220 F.3d at 256, 22 BLR at 2-101 [emphasis added].
Reviewing the relevant evidence in the instant case, the administrative law
judge found that the x-ray evidence revealed that five of the ten chest x-ray films
of record were read as positive for the existence of complicated pneumoconiosis.
Dr. James, a B-reader, found a large opacity classified as either Category A or B
complicated pneumoconiosis when reading the x-ray films dated December 8, 1994,
July 6, 1995, January 2, 1996, August 20, 1997, and February 23, 1998, Claimant's
Exhibits 2-5, but both Drs. Castle and Repsher, who are equally qualified readers,
reread all but one, of these same films[6] and
found absolutely no evidence of either simple or complicated pneumoconiosis.
Employer's Exhibits 1, 13, 17. The administrative law judge noted that Dr. Preger,
a Board-certified radiologist who is also a B-reader, read the film taken on August
20, 1997 and diagnosed a large opacity classified as Category B complicated
pneumoconiosis, Director's Exhibit 10, and that Dr. Coultas, a B-reader, reread the
February 23, 1998 film as demonstrating evidence of a large opacity classified as
Category A complicated pneumoconiosis. Claimant's Exhibit 1.[7] The administrative law judge found that,
although Dr. James diagnosed complicated pneumoconiosis his finding was not
supported, Decision and Order at 11; Claimant's Exhibit 1, that Dr. Castle, in an
opinion dated May 28, 1999, found that the upper lobe infiltrates seen on x-ray
demonstrate evidence of granulomatous disease and not large opacities, that Dr.
Kleinerman found that the "bilateral upper lobe infiltrates ... have persisted
since 1994 and ... are suspected clinically as being the result of tuberculosis or
granulomatous disease," and that Dr. Caffrey maintained that the bilateral upper
lobe changes in the miner's lungs are the result of granulomatous disease and he
could not make a diagnosis of complicated pneumoconiosis. Decision and Order at
6-7; Director's Exhibit 5.
Although the administrative law judge did not determine whether evidence in
each category under Section 718.304(a)(3) tend to establish the existence of
complicated pneumoconiosis, he properly weighed all the relevant evidence. See
Larioni v. Director, OWCP, 6 BLR 1-1276 (1984). Weighing all the evidence, the
administrative law judge, within a proper exercise of his discretion, found that
the x-ray evidence of record was insufficient to establish the existence of
complicated pneumoconiosis in light of the fact that several of the same x-rays
which were read as showing complicated pneumoconiosis were also read as showing no
evidence of pneumoconiosis and several medical opinions provided other causes for
the large opacities seen on the x-rays. See Decision and Order at 6-7;
Scarbro, supra; see generally Mullins Coal Co. of Va. v.
Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied, 484 U.S.
1047 (1988); Lester v. Director, OWCP, 993 F.2d 1143, 17 BLR 2-114 (4th Cir.
1993); Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en
banc); Mabe v. Bishop Coal Co., 9 BLR 1-67 (1986). The administrative
law judge, therefore, rationally concluded that claimant was not entitled to the
irrebuttable presumption of totally disabling pneumoconiosis at Section 718.304.
Relevant to Section 718.204(b)(2)(i), the record contains three pulmonary
function studies taken on April 5, 1995, August 19, 1997, and February 23, 1998.
Director's Exhibit 7; Employer's Exhibits 1, 3, 4. None of these studies yielded
qualifying values.[8] Director's Exhibits 12, 16,
21. Thus, the administrative law judge properly found that the pulmonary function
studies of record produced non-qualifying values, and therefore, failed to
demonstrate total respiratory disability. 20 C.F.R. §718.204(b)(2)(i); see
Winchester v. Director, OWCP, 9 BLR 1-177 (1986); Decision and Order at 12.
Likewise, the administrative law judge properly determined that the two arterial
blood gas studies of record dated September 9, 1997 and February 23, 1998 produced
non-qualifying values. Director's Exhibits 9, 17. Hence, we affirm the
administrative law judge's finding that total respiratory disability was not
demonstrated under Section 718.204(b)(2)(ii). See Tucker v. Director,
OWCP, 10 BLR 1-35 (1987); Decision and Order at 12-13. Similarly, the
administrative law judge properly found that the evidentiary record does not
contain evidence of cor pulmonale with right-sided congestive heart failure, and
thus, total disability cannot be demonstrated pursuant to Section
718.204(b)(2)(iii). See Newell v. Freeman United Mining Co., 13 BLR 1-37,
1-39 (1989); Decision and Order at 12 n.10.
Relevant to Section 718.204(b)(2)(iv), the medical opinion evidence consists
of seven physicians' opinions. Dr. Mosley opined that claimant suffered from a
mild to moderate obstructive airway disease as identified by pulmonary function
study, but had no significant limitation of function. Director's Exhibit 8. Drs.
Kleinerman, Naeye, Caffrey, Renn, Tuteur, and Castle all opined that claimant does
not have any respiratory or pulmonary disability. Employer's Exhibits 1, 2, 5, 7,
9, 11. The administrative law judge properly determined that, although Dr. Mosley
diagnosed a mild to moderate pulmonary disease, he failed to provide an assessment
as to the extent of claimant's disability. See Gee v. W.G. Moore & Sons, 9
BLR 1-4 (1986); Decision and Order at 13 n.12. In addition, the administrative law
judge permissibly found that Dr. Mosley neither explained his disability opinion
in light of the non-qualifying pulmonary function and blood gas testing, see
Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Lucostic v. U. S. Steel
Corp., 8 BLR 1-46 (1985), nor provided any opinion as to claimant's physical
limitations, see Eagle v. Armco, Inc., 943 F.2d 509, 15 BLR 2-201 (4th Cir.
1991); Budash v. Bethlehem Mines Corp., 16 BLR 1-27, 1-29 (1991)(en
banc); Onderko v. Director, OWCP, 14 BLR 1-2, 1-4 (1989); Decision and
Order at 13 n.12. Therefore, the administrative law judge, within a rational
exercise of his discretion, found that all of the physicians of record, who
rendered opinions addressing the extent of claimant's disability, opined that
claimant was not totally disabled. Consequently, the administrative law judge
reasonably found that these physicians' opinions were well reasoned and well
supported opinions by the objective evidence of record, and as such, entitled to
dispositive weight. See Clark, supra; Decision and Order at
13. Consequently, we affirm the administrative law judge's finding that claimant
failed to demonstrate total disability pursuant to Section 718.204(b)(2)(iv).
Inasmuch as the administrative law judge's determination that claimant failed
to satisfy his burden of establishing total respiratory disability, a requisite
element in this Part 718 case, is rational and supported by substantial evidence,
we must affirm the administrative law judge's denial of benefits. See
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP,
9 BLR 1-1 (1986)(en banc).[9]
Accordingly, the Decision and Order Denying Living Miner's Benefits of the
administrative law judge is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1) Claimant, Paul Johnson, filed his application for benefits on June 17, 1997. Director's
Exhibit 1.
Back to Text
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 65
Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726). All citations to the regulations,
unless otherwise noted, refer to the amended regulations.
Back to Text
3) The Director's brief, dated March 13, 2001, asserts that the outcome of this case will not be
affected by application of the revised regulations. In a brief dated March 14, 2001, employer similarly avers that none of
the revised regulations affect the outcome of this appeal.
Back to Text
4) Section 718.304 provides in relevant part:
There is an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis ..., if such miner
is suffering or suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray ... yields one or more large opacities (greater than 1
centimeter in diameter) and would be classified in Category A, B, or C...; or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in the lung; or
(c) When diagnosed by means other than those specified in paragraphs (a) and (b) of this
section, would be a condition which could reasonably be expected to yield the results
described in paragraph (a) or (b) of this section had diagnosis been made as therein
described: Provided, however, That any diagnosis made under this paragraph shall
accord with acceptable medical procedures.
20 C.F.R. §718.304 [emphasis in original].
Back to Text
5) The irrebuttable presumption under Section 411(c)(3) of the Act does not refer to the triggering
condition for invocation of the presumption as "complicated pneumoconiosis," nor does it incorporate a purely medical
definition of "complicated pneumoconiosis," but rather, the presumption is triggered by the application of congressionally
defined criteria. Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 256, 22 BLR 2-93
(4th Cir. 2000); Double B Mining, Inc. v. Blankenship, 177 F.3d 240, BLR (4th Cir. 1999).
Back to Text
6) A review of the record reveals that neither Dr. Castle nor Dr. Repsher reread the August 20,
1997 x-ray film.
Back to Text
7) In a review of the transbronchial lung biopsy, Dr. Sever diagnosed periarteriolar dust macule
with anthracotic pigment and birefringent material, associated with very mild fibrosis in a report dated April 5, 1995.
Employer's Exhibit 3. Dr. Sever further stated, "In the absence of marked fibrosis as usually seen with silicotic nodules,
the findings are not specific for pneumoconiosis." Ibid. On September 13, 1998, Dr. Naeye's review of the lung
biopsy revealed a small amount of black pigment present, but he nevertheless opined, "there is no evidence of any kind of
simple or complicated CWP." Employer's Exhibit 5. Dr. Kleinerman reviewed the biopsy on July 1, 1998 and found
evidence of simple coal workers' pneumoconiosis and bilateral upper lobe infiltrates suspected clinically of being the result
of tuberculosis or granulomatous disease. Employer's Exhibit 2. See 20 C.F.R. §718.304(b).
Back to Text
8) A "qualifying" pulmonary function study or blood gas study yields values that are equal to or less than
the appropriate values set out in the tables at 20 C.F.R. Part 718, Appendices B and C (2000), respectively. A
"non-qualifying" study yields values that exceed those values. 20 C.F.R. §718.204(b)(2)(i), (ii).
Back to Text
9) Because we affirm the administrative law judge's finding that claimant has failed to
establish a totally disabling respiratory impairment, 20 C.F.R. §718.204(b)(2)(i)-(iv), we will not address
the administrative law judge's other findings. 20 C.F.R. §718.202(a)(1)-(4); Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
