Bristow v. Emery Mining Corp., BRB 20-0513 BLA

Decision Date19 July 2021
Docket NumberBRB 20-0513 BLA
CourtCourt of Appeals of Black Lung Complaints
PartiesCECIL E. BRISTOW Claimant-Respondent v. EMERY MINING CORPORATION and ENERGY WEST MINING COMPANY, INCORPORATED 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UNPUBLISHED OPINION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 on Remand of Jonathan C. Calianos Administrative Law Judge, United States Department of Labor.

Austin P. Vowels (Vowels Law PLC), Henderson, Kentucky, for Claimant.

William S. Mattingly (Jackson Kelly PLLC), Lexington Kentucky, for Employer and its Carrier.

Steven Winkelman (Elena S. Goldstein, Deputy Solicitor of Labor Barry H. Joyner, 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: BUZZARD, ROLFE and GRESH, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

Employer and its Carrier (Employer) appeal Administrative Law Judge Jonathan C. Calianos's Decision and Order on Remand (2014-BLA-05797) rendered on a claim filed on September 3 2013, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case is before the Benefits Review Board for the second time.

In a Decision and Order Denying Benefits dated April 26, 2017, Administrative Law Judge Colleen A. Geraghty credited Claimant with six and one-half years of coal mine employment. Thus she found he could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[1] 30 U.S.C. §921(c)(4) (2018). Considering entitlement under 20 C.F.R. Part 718, she found Claimant established clinical pneumoconiosis and legal pneumoconiosis in the form of chronic obstructive pulmonary disease (COPD) arising out of coal mine employment. 20 C.F.R. §718.202(a)(1), (4). Although she found he established a totally disabling respiratory or pulmonary impairment, 20 C.F.R. §718.204(b)(2), she found he failed establish his total disability is due to pneumoconiosis. 20 C.F.R. §718.204(c). Thus she denied benefits.

In consideration of Claimant's appeal and Employer's cross-appeal, the Board held Judge Geraghty properly weighed the medical opinions of Drs. Chavda, Sood, Selby, and Castle on the issue of legal pneumoconiosis. Bristow v. Emery Mining Corp., BRB Nos. 17-0441 BLA/A, slip op. at 3-7 (Oct. 19, 2018) (unpub.); see 20 C.F.R. §718.202(a). Thus the Board affirmed her finding Claimant established legal pneumoconiosis in the form of COPD arising out of coal mine employment. Id. The Board also affirmed her finding Claimant established total disability as the parties did not challenge it on appeal. Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 3 n.2; see 20 C.F.R. §718.204(b)(2).

The Board held, however, Judge Geraghty applied an erroneous standard when addressing whether Claimant is totally disabled due to pneumoconiosis. Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 7-11; see 20 C.F.R. §718.204(c). It concluded she erred by revisiting the question of whether Claimant's COPD is attributable to coal mine dust exposure rather than addressing the contribution Claimant's COPD/legal pneumoconiosis makes to his totally disabling respiratory or pulmonary impairment. Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 7-11. The Board held remand for further consideration of this issue was unnecessary, however, because no factual issues remained to be determined and no further factual development was required. Id. The Board noted that all the doctors agreed Claimant is totally disabled by COPD, he established through the credible opinions of Drs. Chavda and Sood that his disabling COPD is legal pneumoconiosis, and there is no evidence of another condition that could have caused the disabling respiratory impairment other than COPD.[2] Id. Thus the Board concluded the opinions of Drs. Chavda and Sood establish that legal pneumoconiosis caused his total disability, satisfying Claimant's burden to prove the disability causation element. Id.; 20 C.F.R. §718.204(c). Based on the foregoing, the Board reversed the denial of benefits and remanded the case for an entry of an award of benefits.[3] Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 10-11.

Thereafter Employer appealed to the United States Court of Appeals for the Tenth Circuit, [4] which dismissed the appeal for lack of jurisdiction. Energy West Mining Co. v. Director, OWCP [Bristow], 790 F. App'x. 910, 911-13 (10th Cir. 2019). The court explained the Board's Decision and Order was not an appealable final order because the administrative law judge had not rendered a finding on the commencement date for benefits. Id.; see 20 C.F.R. §725.482.

Subsequently, the case was returned to the Office of Administrative Law Judges. Due to Judge Geraghty's retirement, it was reassigned to Administrative Law Judge Jonathan C. Calianos (the administrative law judge). In his July 31, 2020 Decision and Order on Remand that is the subject of this appeal, the administrative law judge reiterated Claimant established all the elements of entitlement. He entered an award of benefits commencing September 2013.

On appeal, Employer again challenges the finding of legal pneumoconiosis. On the issue of disability causation, it argues the Board exceeded its scope of review, misapplied the applicable regulations, and erred in reversing Judge Geraghty's finding. Both Claimant and the Director, Office of Workers' Compensation Programs (the Director), respond urging the Board to reject Employer's arguments.

The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and 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).

Legal Pneumoconiosis

To establish legal pneumoconiosis, Claimant must demonstrate he has a chronic lung disease or impairment "arising out of coal mine employment." 20 C.F.R. §718.201(a)(2); see 30 U.S.C. §902(b). A "disease 'arising out of coal mine employment' includes any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §718.201(b).

As discussed above, the Board affirmed Judge Geraghty's finding Claimant established legal pneumoconiosis in the form of disabling COPD significantly due to coal mine dust exposure. Bristow, BRB Nos. 17-0441 BLA/A, slip op at 3-7. In so holding, the Board rejected Employer's cross-appeal argument that the opinions of Drs. Chavda and Sood are insufficient to establish legal pneumoconiosis as a matter of law. Id. at 4-6. Citing Arch on the Green, Inc. v. Groves, 761 F.3d 594 (6th Cir. 2014), the Board explained a miner can establish a lung impairment is significantly related to coal mine dust exposure "by showing that his disease was caused 'in part' by coal mine employment." Id. at 4-5, quoting Groves, 761 F.3d at 600. Thus the Board concluded Dr. Chavda's opinion that Claimant's COPD is due in part to coal mine dust exposure is sufficient to establish the existence of legal pneumoconiosis. Id. at 4-6; see 20 C.F.R. §718.201(a)(2), (b); Director's Exhibit 10; Employer's Exhibit 4. Further, the Board held Judge Geraghty was not required to separately determine whether Dr. Chavda's opinion establishes that coal dust exposure caused the pneumoconiosis at 20 C.F.R. §718.203 because her "finding at 20 C.F.R. §718.202(a)(4) [that Claimant's disabling COPD is significantly related to coal mine dust exposure] necessarily subsumed that inquiry." Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 4-5 n.5.

With respect to Dr. Sood, because he opined Claimant's coal mine dust exposure was a "substantial contributory factor" to his COPD, the Board concluded the doctor's opinion was also sufficient to establish legal pneumoconiosis. Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 5-6. The Board further affirmed the administrative law judge's permissible finding that the opinions of Drs. Sood and Chavda are well-reasoned and documented, and the contrary opinions of Drs. Selby and Castle are unpersuasive. Id.

Employer argues the Board should have applied the law of the Tenth Circuit, not the Sixth Circuit, in evaluating whether the administrative law judge erred in finding legal pneumoconiosis established. Employer's Brief at 21-24, 27-35. In the prior appeal, the Board indicated Claimant performed his coal mine employment in Kentucky, and thus applied the law of the Sixth Circuit. Bristow, BRB Nos. 17-0441 BLA/A, slip op. at 3 n.3. But Claimant performed his last coal mine employment in Utah, and thus the Board should have applied the law of the Tenth Circuit. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director's Exhibit 3; Hearing Transcript at 15.

We decline to revisit the Board's prior disposition of the legal pneumoconiosis issue, however, because there is no conflict between Sixth Circuit and Tenth Circuit case law. Both circuits acknowledge the applicable regulation at 20 C.F.R. §718.201(a)(2) states a miner may establish legal pneumoconiosis by proving he has a chronic lung disease or impairment and its sequelae arising out of coal mine employment. See Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214-15 (10th Cir. 2009) (legal pneumoconiosis is a chronic dust disease of the lung and its sequelae including respiratory and pulmonary impairments, arising out of coal mining employment); Andersen v. Director, OWCP, 455 F.3d 1102, 1104 (10th Cir. 2006); Groves, ...

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