Newsome v. D & N Coal Corp., BRB 11-0235 BLA
| Decision Date | 23 January 2012 |
| Docket Number | BRB 11-0235 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BRENDA NEWSOME Widow of and o/b/o the Estate of GRANT NEWSOME, JR. Claimant-Respondent v. D & N COAL CORPORATION/OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Benefits of Pamela Jane Lakes, Administrative Law Judge, United States Department of Labor.
Joseph Wolfe and Ryan C. Gilligan (Wolfe Williams Rutherford & Reynolds), Norton, Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for employer/carrier.
Emily Goldberg-Kraft (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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 BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer/carrier (employer) appeals the Decision and Order Granting Benefits (07-BLA-05190 and 07-BLA-05191) of Administrative Law Judge Pamela Jane Lakes rendered on claims filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) (). This case involves a miner's subsequent claim filed on December 22, 2003, [1]and a survivor's claim filed on December 9, 2005.
The administrative law judge adjudicated both the miner's 2003 subsequent claim and the survivor's claim pursuant to 20 C.F.R. Part 718, [2]and properly noted that Congress recently enacted amendments to the Act, which became effective on March 23, 2010, affecting claims filed after January 1, 2005. [3] Decision and Order at 2. With regard to the miner's claim, the administrative law judge credited the miner with “more than eight and less than ten” years of coal mine employment, [4]Decision and Order at 10, and determined that the amendments to Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4), are inapplicable to the miner's claim, because it was filed before January 1, 2005, and because the miner was credited with fewer than fifteen years of coal mine employment. The administrative law judge further found that the new evidence established that the miner suffered from clinical and legal pneumoconiosis, arising out of coal mine employment, pursuant to 20 C.F.R. §§718.202(a)(2), (4), 718.203(c), and total disability, due to pneumoconiosis, pursuant to 20 C.F.R. §718.204(b), (c), elements that were adjudicated against the miner in the prior claim. Thus, the administrative law judge found that one of the applicable conditions of entitlement had changed since the date upon which the denial of the miner's prior claim became final. 20 C.F.R. §725.309. Considering the miner's 2003 claim on the merits, the administrative law judge found that the evidence in the miner's claim established that the miner was totally disabled due to pneumoconiosis. Accordingly, the administrative law judge awarded benefits in the miner's claim.
In adjudicating the survivor's claim, the administrative law judge properly found that the March 23, 2010, amendments to the Act are applicable to the survivor's claim, as it was filed after January 1, 2005, and was pending on or after March 23, 2010. The administrative law judge correctly noted that the amendments, in pertinent part, revive Section 932(l) of the Act, which provides that the eligible survivor of a miner who was determined to be eligible to receive benefits at the time of his or her death is automatically entitled to survivor's benefits, without having to establish that the miner's death was due to pneumoconiosis. 30 U.S.C. §932(l). The administrative law judge found that claimant is an eligible survivor of the miner, and, based on the award of benefits in the miner's claim, found claimant entitled to receive benefits under amended Section 932(l). Accordingly, the administrative law judge awarded benefits in the survivor's claim.
On appeal, relevant to the miner's claim, employer argues that the administrative law judge erred in excluding a portion of Dr. Caffrey's medical report, submitted by employer in rebuttal to Dr. Perper's report, pursuant to 20 C.F.R. §725.414. Employer further asserts that the administrative law judge erred in finding that claimant established the requisite change in an applicable condition of entitlement, pursuant to 20 C.F.R. §725.309(d). Alternatively, employer challenges the administrative law judge's findings, on the merits, that claimant established the existence of clinical and legal pneumoconiosis, arising out of coal mine employment, pursuant to 20 C.F.R. §§718.202(a)(2), (4); 718.203(c), and that the miner's disability was due to pneumoconiosis, pursuant to 20 C.F.R. §718.204(c). Employer further challenges the administrative law judge's award of augmented benefits, on behalf of the miner's adult, disabled son. With respect to the survivor's claim, employer challenges the administrative law judge's length of coal mine employment determination, the administrative law judge's application of amended Section 932(l) to award benefits, and the administrative law judge's augmentation of those benefits. Claimant [5]responds in support of the administrative law judge's award of benefits in both claims. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response brief, urging the Board to reject employer's arguments regarding the administrative law judge's exclusion of portions of Dr. Caffrey's medical report, and her application of amended Section 932(l) to the survivor's claim. Employer filed a combined reply brief, reiterating its allegations of error.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence, are rational, and are in accordance with applicable 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). The Board reviews the administrative law judge's procedural rulings for abuse of discretion. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc).
Employer initially argues that, by refusing to consider Dr. Caffrey's opinion in its entirety, the administrative law judge improperly denied employer an opportunity to submit rebuttal evidence to Dr. Perper's medical report. Employer's contention lacks merit. In an Order dated May 28, 2010, the administrative law judge permissibly found that Dr. Perper's report, submitted by claimant, contained both a review of the miner's biopsy tissue slides, as well as his written assessment of the miner's respiratory condition based on his review of additional medical records, and, therefore, it constituted both a biopsy interpretation and a medical report for the purposes of the evidentiary limitations. See Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-239 (2006)(en banc); May 28, 2010 Order at 3. The administrative law judge further found that Dr. Caffrey's report, designated by employer as biopsy rebuttal to Dr. Perper's report, also contained both a review of the biopsy slides, and Dr. Caffrey's consideration of additional medical records that were unrelated to the biopsy and, thus, was both a biopsy rebuttal report, and a medical report. The administrative law judge correctly found that, to the extent that Dr. Perper's report was an affirmative biopsy report, the regulations permitted employer to submit a biopsy rebuttal report, 20 C.F.R. §725.414(a)(2)(ii), but that the regulations do not provide for the rebuttal of medical reports. May 28, 2010 Order at 3. Further, as employer had already designated two affirmative medical reports, those of Drs. Dahhan and Fino, Dr. Caffrey's opinion could not be admitted as an affirmative medical report. 20 C.F.R. §725.414(a)(3)(i); May 28, 2010 Order at 4. Therefore, the administrative law judge reasonably concluded that Dr. Caffrey's report would be considered only to the extent it related to the biopsy and to Dr. Perper's interpretation of the biopsy slides and biopsy findings. May 28, 2010 Order at 4.
Employer asserts that, under L.P. [Preston] v. Amherst Coal Co., 24 BLR 1-55 (2008), the administrative law judge erred in failing to admit Dr. Caffrey's opinion in its entirety. Employer's Brief at 18-19. Employer's reliance on Preston is misplaced. In Preston, the Board “recognized only a right to cross-examine a [treating] physician whose report is admissible under Section 725.414(a)(4)” and admit his testimony into the record. Preston, 24 BLR at 1-63; Director's Brief at 3. Dr. Caffrey, however, was not the miner's treating physician; rather, employer simply sought to admit a third medical report from Dr. Caffrey that it labeled as “rebuttal” to Dr. Perper's combined biopsy report and affirmative medical report.
Further even assuming that Dr. Caffrey's report included review and criticism of Dr. Perper's report that employer believed was necessary “to ensure the integrity and fundamental fairness of the adjudications” of these claims, employer could have either designated Dr. Caffrey's report as one of its two affirmative reports, or argued to the administrative law judge that “good cause” existed to admit Dr. Caffrey's complete report, in excess of the evidentiary limitations, pursuant to 20 C.F.R. §725.456(b)(1). Director's Brief at 3. As a review of the record reveals that employer did neither, we hold that the administrative law judge did not abuse her discretion...
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