Amick v. Westmoreland Coal Co., BRB 03-0256 BLA
| Decision Date | 21 January 2004 |
| Docket Number | BRB 03-0256 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | CHARLES M. AMICK Claimant-Respondent v. WESTMORELAND COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order-Awarding Benefits of Michael P Lesniak, Administrative Law Judge, United States Department of Labor.
James M. Talbert and Matthew Smith Kennedy (Legal Practice Clinic Washington and Lee University School of Law), Lexington Virginia, for claimant.
Douglas A. Smoot and Kathy L. Snyder (Jackson Kelly PLLC), Morgantown, West Virginia, for employer.
Barry H. Joyner (Howard M. Radzely, Solicitor of Labor; Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order-Awarding Benefits (01-BLA-0443) of Administrative Law Judge Michael P. Lesniak 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] The administrative law judge found a material change in conditions established in this duplicate claim because the newly submitted evidence established total disability due to pneumoconiosis, the element of entitlement previously adjudicated against claimant. Decision and Order at 20. [2] The administrative law judge further found, on consideration of all of the evidence of record, that claimant established a coal mine employment history of thirty-three years, the existence of pneumoconiosis, that pneumoconiosis arose out of coal mine employment, total disability, and that total disability was due to pneumoconiosis. Decision and Order at 20. Benefits were, accordingly, awarded.
On appeal, employer contends that the administrative law judge erred in several respects: in failing to determine whether claimant's duplicate claim was timely filed; in failing to consider whether claimant's condition had worsened when he found a material change in conditions established; in failing to consider all of the evidence of record when finding entitlement established; in failing to properly evaluate the medical opinion evidence relevant to total disability and causation; in applying the amended regulations retroactively to find the existence of pneumoconiosis and disability due to pneumoconiosis established; and in finding the month the claim was filed to be the onset date of disability. Claimant responds, urging that the administrative law judge's award of benefits be affirmed. The Director, Office of Workers' Compensation Programs, (the Director), challenges employer's assertions regarding the timeliness of the claim, the retroactive application of the new regulations, and the onset date, [3]but he takes no position on the merits of entitlement.
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).
Employer first argues that the administrative law judge erred in failing to determine whether the instant, duplicate claim constitutes a timely application for benefits under 20 C.F.R. §725.308. Employer contends that since claimant received his first diagnosis of totally disabling pneumoconiosis in 1996, and the present claimant was not filed until March 29, 2000, more than three years after that date, the claim was untimely filed, citing the Sixth Circuit's decision in Tennessee Consolidation Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-288 (6th Cir. 2001) and the Board's decision in Furgerson v. Jericol Mining Inc., 22 BLR 1-216 (2002), applying Kirk to a case arising in the Sixth Circuit. Employer further argues claimant testified at the June 12, 2002 hearing that Dr. Salvadore told him four years ago that he was totally disabled due to pneumoconiosis, and that Dr. Klamath told him directly and by letter that he was totally disabled due to black lung. Employer also contends that 1996 medical records from the Rainelle Medical Center, diagnosed the existence of coal workers' pneumoconiosis. Employer's Exhibit 6; Claimant's Exhibit 3. Employer, therefore, argues that this duplicate claim is time barred by the terms of Section 725.308, which require that a claim be filed within three years of a medical determination of disability. Employer's Brief at 5-7.
We note that Kirk is not controlling in this case which arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit. See Shupe v. Director OWCP, 12 BLR 1-200 (1989). The Board has held that the time limitation set forth in Section 422(f) of the Act, 30 U.S.C. §932(f), as implemented by 20 C.F.R. §725.308 does not bar the filing of a duplicate claim. Furgerson, 22 BLR at 1-220, 1-221; see Andryka v. Rochester & Pittsburgh Coal Co., 14 BLR 1-34 (1990). Moreover, as the Director correctly argues, even if Kirk were applicable, this claim would not be time-barred because a review of the record before us fails to demonstrate that claimant received a written diagnosis of totally disabling pneumoconiosis. Dr. Salvador's "diagnosis" was, as claimant testified, given verbally. Further, there is no written evidence in the record of Dr. Klamath's diagnosis of totally disabling pneumoconiosis. Moreover, while the 1996 records from Rainelle Medical Center are written, the diagnosis contained therein is limited to one concerning the existence of pneumoconiosis and does not address whether claimant is totally disabled by pneumoconiosis. Accordingly, we hold that employer has not rebutted the presumption that the instant, duplicate claim was timely filed. 20 C.F.R. §725.308(c); see Adkins v. Donaldson Mine Co., 19 BLR 1-34 (1993); Daugherty v. Johns Creek Elkhorn Coal Corp., 18 BLR 1-95 (1993). Employer's argument is, accordingly, rejected.
Employer next argues that the administrative law judge erred in failing to consider whether a material change in conditions was established under the proper standard. Employer contends that the administrative law judge must determine whether claimant has shown that his condition has worsened in order to establish a material change in conditions, citing Kirk and Furgerson. In finding that claimant established a material change in conditions, however, the administrative law judge stated that claimant had established the element of entitlement previously adjudicated against him. Decision and Order at 20. This was proper under the standard set forth by the Fourth Circuit in Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 1364, 20 BLR 2-227, 2-234 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995), cert. denied, 510 U.S. 1090 (1997). Employer's argument is, therefore, rejected.
Employer also argues that the administrative law judge erred in not considering all the evidence of record, both old and new, when determining whether claimant was entitled to benefits. Contrary to employer's argument, a review of the administrative law judge's Decision and Order supports his finding that he considered all the evidence of record in finding that claimant established entitlement. Decision and Order at 14. Accordingly, we hold that the administrative law judge sufficiently considered all the evidence of record on entitlement. Moreover, while generally alleging that the administrative law judge failed to consider all the evidence of record, employer has not argued that the previously submitted evidence of record would have supported findings contrary to those reached by the administrative law judge. We conclude, therefore, that we have no substantial issue to review in this regard. See Sarf v. Director, OWCP, 10 BLR 1-119 (1987); Fish v. Director, OWCP, 6 BLR 1-107 (1983); see also Cox v. Benefits Review Board, 791 F.2d 445, 9 BLR 2-46 (6th Cir. 1986).
Additionally, employer argues that the administrative law judge erred in finding that the medical opinion evidence established the existence of legal pneumoconiosis and disability causation. Employer makes several arguments in support of this contention. Specifically, employer asserts that the administrative law judge erred in discrediting the opinions of Drs. Zaldivar, Stewart, Castle, Daniel, and Spagnolo when he erroneously concluded that these physicians failed to address whether coal mine dust exposure contributed to the miner's chronic obstructive pulmonary disease. Employer's Brief at 11. Employer offers two assertions in support of this argument.
First employer contends that the administrative law judge applied an incorrect legal standard in considering the medical opinion evidence of legal pneumoconiosis and disability causation because he effectively required the physicians to "rule out coal mine dust exposure as a cause of claimant's totally disabling respiratory impairment." Employer's Brief at 12. We disagree. Review of the administrative law judge's Decision and Order demonstrates that the administrative law judge rejected the opinions of Drs. Zaldivar, Stewart, Castle, Daniel and Spagnolo, Decision and Order at 16-18, 19-21, not because they failed to affirmatively rule out the presence of legal...
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