BRB No 00-0718 BLA
IRVIN F. REIGLE )
)
Claimant-Petitioner )
)
v. )
) DATE ISSUED:03/27/2001
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order-Denial of Benefits of Ralph A. Romano,
Administrative Law Judge, United States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Michelle S. Gerdano (Judith E. Kramer, Acting Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and 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: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Claimant appeals the Decision and Order-Denial of Benefits (99-BLA-0589) of
Administrative Law Judge Ralph A. Romano rendered 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] Claimant filed
his application for
benefits on September 3, 1998. Director's Exhibit 1. The district director denied benefits
and
claimant requested a hearing, which was held on September 14, 1999. Director's Exhibits
13, 14. The administrative law judge in his Decision and Order accepted the parties?
stipulation to 10.78 years of coal mine employment, found that the weight of the medical
evidence weighed together established the existence of pneumoconiosis arising out of
coal
mine employment pursuant to 20 C.F.R. ??718.202(a), 718.203(b), see Penn Allegheny
Coal
Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997), but concluded that the
evidence
did not establish that claimant is totally disabled by a respiratory or pulmonary
impairment
pursuant to 20 C.F.R. ?718.204. Accordingly, the administrative law judge denied
benefits.
On appeal, claimant contends that the administrative law judge erred in his analysis
of the pulmonary function and medical opinion evidence when he found that claimant is
not
totally disabled. The Director, Office of Workers' Compensation Programs (the Director),
responds, urging affirmance. However, in the event that the denial is not affirmed, the
Director argues that the administrative law judge abused his discretion in denying the
Director?s motion to submit a review of a pulmonary function study submitted by
claimant
exactly upon the twenty-day deadline.[2]
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States Court of Appeals 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 Ass?n 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 March 2, 2001, to which the parties
have
responded. Both Claimant and the Director state that none of the regulations at issue in
the
lawsuit affects the outcome of this case. Based upon 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 with the adjudication of 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 be entitled to benefits under the Act, claimant must demonstrate by a
preponderance of the evidence that he is totally disabled due to pneumoconiosis arising
out
of coal mine employment. 30 U.S.C. ?901; 20 C.F.R. ??718.3, 718.202, 718.203,
718.204.
Failure to establish any one of these elements precludes entitlement. Anderson v. Valley
Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR
1-26,
1-27 (1987).
Pursuant to Section 718.204(b)(2)(i),[3]
claimant
contends that
the administrative law judge erred in crediting the non-qualifying[4]
pulmonary function studies of October 14, 1998 and April 26, 1999 over the qualifying
study
of August 11, 1999 to find that total disability was not established. Claimant?s contention
lacks merit. In weighing these studies, the administrative law judge took into account Dr.
Raymond J. Kraynak?s opinion that the October 14, 1998, non-qualifying test was
?technically invalid.?[5] Claimant's Exhibit 4.
The
administrative law
judge reasonably considered, however, that pulmonary function studies ?are effort
dependent,? and noted correctly that the October 14, 1998 study ?produced the highest
values? in the record. Decision and Order at 8; Director's Exhibit 7; see Anderson v.
Youghiogheny & Ohio Coal Co., 7 BLR 1-152, 1-154 (1984)(because pulmonary
function
studies are effort dependent, a non-qualifying study revealing sub-optimal cooperation
may
still be a valid measure of the lack of respiratory disability). The administrative law judge
permissibly found that the two non-qualifying studies outweighed the August 11, 1999
study,
noting that they ?were performed within a year of Dr. Kraynak?s qualifying study. . . .?
Decision and Order at 8. Because the administrative law judge properly weighed the
pulmonary function studies, we affirm his finding that the weight of the pulmonary
function
studies did not establish total disability.
Pursuant to Section 718.204(b)(2)(iv), claimant contends that the administrative law
judge did not weigh the medical opinions in light of the exertional requirements of
claimant?s usual coal mine employment. This contention has merit.
A miner is considered totally disabled when ?a pulmonary or respiratory impairment
. . . prevents or prevented the miner: . . . [f]rom performing his or her usual coal mine
work.?
20 C.F.R. ?718.204(b)(1)(i). An administrative law judge considering the medical
opinions
pursuant to Section 718.204(b)(2)(iv) may infer total disability by comparing a
physician?s
assessment of respiratory limitations with the physical requirements of claimant?s usual
coal
mine employment. Onderko v. Director, OWCP, 14 BLR 1-2 (1989); Budash v.
Bethlehem
Mines Corp., 9 BLR 1-48, aff'd on recon., 9 BLR 1-104 (1986)(en banc). ?Even a ?mild?
respiratory impairment may preclude the performance of the miner?s usual duties,
depending
on the exertional requirements of the miner?s usual coal mine employment.? Cornett v.
Benham Coal Co., 227 F.3d 569, BLR (6th Cir. 2000).
Claimant indicated that his job as a general laborer involved ?[d]rilling, loading holes,
firing, dressing face, timbering, working in gangway and breast work, scooping coal.?
Director's Exhibit 3. Claimant described the physical activity required as standing for
four
hours per day, crawling various distances for four hours per day, and lifting and carrying
up
to 150 pounds various distances and times per day. Id. At the hearing, claimant testified
that
he had to crawl and climb, and that he carried timbers weighing 100 to 200 pounds. Tr. at
23-24.
Dr. Michael Green concluded that despite having mild chronic airflow obstruction,
claimant ?can perform last coal mine job [listed] in section B1a? of the examination form.
Director's Exhibit 8 at 4. In that section of the form, however, Dr. Green merely listed
?drilled rock, miner.? Director's Exhibit 8 at 1. Dr. Bruce M. Romanic, claimant?s
treating
physician, opined that claimant?s impairment prevents him from performing his ?past
customary coal mine employment or similarly arduous work.? Claimant's Exhibit 1 at 2.
Dr.
Kraynak concluded that claimant ?would not be able to return to his last coal mine
employment, or any similarly arduous work.? Claimant's Exhibit 2 at 4.
On this record, we agree with claimant that the administrative law judge should have
discussed claimant?s usual coal mine employment and determined whether Dr. Green was
familiar with the exertional requirements of that job before crediting Dr. Green?s opinion
that claimant retains the respiratory capacity to perform his usual coal mine employment.
See
Gonzales v. Director, OWCP, 869 F.2d 776, 779, 12 BLR 2-192, 2-197 (3d Cir. 1989)(a
physician?s opinion is not probative of whether claimant can perform his usual coal mine
employment unless there is some indication that the physician knows the exertional
requirements of claimant?s job); accord Walker v. Director, OWCP, 927 F.2d 181, 184,
15
BLR 2-16, 2-22 (4th Cir. 1991); Cornett, supra. Therefore, we vacate the administrative
law
judge?s finding and remand this case for him to determine the exertional requirements of
claimant?s usual coal mine employment and to assess the medical opinions with reference
to those requirements.[6] See Gonzales, supra;
Budash, supra. On
remand, the administrative law judge should fully explain his relative weighing of the
medical opinions. See Wensel v. Director, OWCP, 888 F.2d 14, 16, 13 BLR 2-88,
2-91-92
(3d Cir. 1989). In his current Decision and Order, we are unable to discern why he found
that Dr. Romanic?s disability opinion was not documented and reasoned, and there is no
indication of the weight accorded to Dr. Kraynak?s opinion that claimant is totally
disabled.
See Administrative Procedure Act (APA), 5 U.S.C. ?557(c)(3)(A), as incorporated into
the
Act by 30 U.S.C. ?932(a), by means of 33 U.S.C. ?919(d) and 5 U.S.C. ?554(c)(2).
Because we must remand this case, we now turn to the administrative law judge?s
denial of the Director?s motion to respond to the August 11, 1999 pulmonary function
study
submitted by claimant exactly twenty days before the hearing, the deadline for the timely
submission of evidence. See 20 C.F.R. ?725.456(b)(2). The sole basis for the
administrative
law judge?s ruling was ?I don?t see how I can do that without writing out of the
regulations
the 20 day rule . . . .? Tr. at 7-8. The administrative law judge did not consider that
where
a party would be denied a reasonable opportunity to present its case fully if precluded
from
submitting evidence in response to evidence submitted just prior to or upon the
twenty-day
deadline, the party?s due process rights as incorporated into the APA would be violated.
See
North American Coal Co. v. Miller, 870 F.2d 948, 951-52, 12 BLR 2-222, 2-228-29 (3d
Cir.
1989); Owens v. Jewell Smokeless Coal Corp., 14 BLR 1-47, 1-49 (1990); Shedlock v.
Bethlehem Mines Corp., 9 BLR 1-195, 1-200 (1986), aff'd on reconsideration, 9 BLR
1-236
(1987)(en banc). Because the administrative law judge must reweigh the medical
opinions
regarding disability, the validity of the August 11, 1999 pulmonary function study may
again
be at issue to the extent it was relied upon by Dr. Kraynak. See Director, OWCP v.
Siwiec,
894 F.2d 635, 638, 13 BLR 2-259, 2-265 (3d Cir. 1990); Director, OWCP v. Mangifest,
826
F.2d 1318, 1327, 10 BLR 2-220, 2-
233 (3d Cir. 1987). Accordingly, the administrative law judge should reconsider the
Director?s motion on remand.[7]
If the administrative law judge on remand finds that claimant is totally disabled, the
administrative law judge must then determine whether pneumoconiosis is a substantially
contributing cause of claimant?s totally disabling respiratory or pulmonary impairment.
20
C.F.R. ?718.204(c)(1); see Bonessa v. United States Steel Corp., 884 F.2d 726, 734, 13
BLR
2-23, 2-37 (3d Cir. 1989)(pneumoconiosis must be a substantial contributor).
Accordingly, the administrative law judge?s Decision and Order-Denial of Benefits
is affirmed in part and vacated in part, and the case is remanded for further consideration
consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
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 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.
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2) We affirm as unchallenged on appeal the administrative law
judge?s
findings regarding length of coal mine employment, that the existence of pneumoconiosis
arising out of coal mine employment was established pursuant to 20 C.F.R.
??718.202(a), 718.203(b), and that total disability was not established by the blood gas
study evidence pursuant to 20 C.F.R. ?718.204(b)(2)(ii).
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3) The regulation applied by the administrative law judge has been
restructured. The methods of proving total disability considered by the administrative law
judge under Section 718.204(c)(1)-(4) are now set forth at Section 718.204(b)(2)(i)-(iv).
20 C.F.R. ?718.204(b).
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4) A ?qualifying? pulmonary function study yields values which
are
equal to or less than the values specified in the tables at 20 C.F.R. Part 718, Appendix B.
A ?non-qualifying? study exceeds those values. See 20 C.F.R. ?718.204(b)(2)(i).
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5) Dr. Kraynak stated that the study was not properly performed
and
reflected inconsistent effort. Claimant's Exhibit 4. The record indicates that claimant?s
effort and cooperation were recorded as ?Good? on this study. Director's Exhibit 7. The
administering physician, Dr. Michael Green, interpreted the study results as reflecting
mild airway obstruction with small airways disease. Id.
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6) The Director argues that Dr. Green?s notation demonstrates his
knowledge ?that the job was a strenuous one.? Director?s Brief at 4 n.1. It will be for
the administrative law judge on remand to make any such determination based on all the
facts presented.
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7) We understand the Director to be requesting the opportunity to
obtain
an expert review of the pulmonary function study tracings, not another pulmonary
function study.
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NOTE: This is an UNPUBLISHED BLA Document.
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