Browning v. Independence Coal Co., Ltd.
| Decision Date | 31 March 2006 |
| Docket Number | BRB 05-0621 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JIMMY BROWNING Claimant-Respondent v. INDEPENDENCE COAL COMPANY, LTD. 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UNPUBLISHED OPINION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 Richard A Morgan, Administrative Law Judge, United States Department of Labor.
Leonard Stayton, Inez, Kentucky, for claimant.
Ashley M. Harman (Jackson Kelly PLLC), Morgantown, West Virginia for employer.
Michelle S. Gerdano (Howard M. Radzely, Solicitor of Labor; 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: McGRANERY, HALL and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2004-BLA-5044) of Administrative Law Judge Richard A. Morgan 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). At the hearing in this case, the administrative law judge excluded several exhibits submitted by employer as exceeding the evidentiary limitations of 20 C.F.R. §725.414 without a showing of good cause by employer for exceeding those limits. Hearing Transcript at 25-34.
In a Decision and Order dated April 7, 2005, the administrative law judge credited claimant with seventeen years of coal mine employment [1]and found that both the x-ray and medical opinion evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (a)(4). In weighing the x-rays, the administrative law judge found the most recent x-ray of record, dated December 5, 2003, was read once as positive by Dr. Miller, a B reader and Board-certified radiologist, and once as negative by Dr. Willis, who is also a dually qualified B reader and Board-certified radiologist. Decision and Order at 17. The administrative law judge concluded, however, that “given my findings that the earlier X-rays are positive, I find Dr. Miller's positive reading more persuasive.” Decision and Order at 17. The administrative law judge went on to state that he also found the “consistently positive” readings by Dr. Miller of the remaining x-rays to be most persuasive, noting that two of the physician's readings were corroborated by B readers. Decision and Order at 17. Finding the preponderance of the x-rays of record positive for pneumoconiosis, the administrative law judge turned to the medical opinions. The administrative law judge found that all of the physicians of record rendered well-documented and well-reasoned opinions, but he discounted the opinions of those who concluded that claimant does not have pneumoconiosis because they failed to give “appropriate credit to the majority of positive readings.” Decision and Order at 18. The administrative law judge further determined that employer did not rebut the presumption of 20 C.F.R. §718.203(b), that claimant's pneumoconiosis arose out of coal mine employment, and found that claimant is totally disabled by a respiratory or pulmonary impairment and that his total disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b)(2), 718.204(c)(1). Accordingly, the administrative law judge awarded benefits.
On appeal, employer contends that the administrative law judge abused his discretion in his application of 20 C.F.R. §725.414 to exclude evidence submitted by employer. Employer further asserts that the administrative law judge erred in his analysis of the x-ray and medical opinion evidence relevant to the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (4), and further erred in his evaluation of the pulmonary function study and medical opinion evidence relevant to the issues of total disability and disability causation at 20 C.F.R. §718.204(b)(2)(i), (iv), 718.204(c). Claimant responds, urging affirmance of the administrative law judge's evidentiary rulings under Section 725.414 and the award of benefits. The Director, Office of Workers' Compensation Programs (the Director) responds, agreeing with employer that the “parties should be permitted to submit one rebuttal reading for each x-ray reading the opposing party submits as part of its affirmative case (even if the two readings are of the same x-ray) . . . .” Director's Brief at 2. [2] Employer has filed a reply brief reiterating its contentions. [3]
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed 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). 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).
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).
Employer contends that the administrative law judge erred in excluding several x-ray readings and medical reports submitted by employer, [4]because Section 725.414 violates Section 923(b) of the Act, Section 556(d) of the Administrative Procedure Act, and the decision of the United States Court of Appeals for the Fourth Circuit in Underwood v. Elkay Mining, Inc., 105 F.3d 946, 21 BLR 2-23 (4th Cir. 1997). Employer's Brief at 18. The Board has rejected these arguments and held that Section 725.414 is a valid regulation. Dempsey v. Sewell Coal Corp., 23 BLR 1-47, 1-58-59 (2004)(en banc). To these arguments, employer adds the contention that Section 725.414 conflicts with the holding of the Supreme Court in 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). Employer's Brief at 19. Employer's reliance on Mullins is misplaced. In Mullins, the Court held that in a Part 727 claim, Section 923(b) of the Act is satisfied so long as all relevant evidence is considered at some point, at either the invocation stage or rebuttal stage of the claim. Mullins, 484 U.S. at 149-50, 11 BLR at 2-8-9. The Court did not address the Department of Labor's authority to impose limitations on the admission of evidence in black lung claims. We therefore reject employer's argument that the administrative law judge could not apply the evidentiary limits of Section 725.414.
Employer further argues that the administrative law judge abused his discretion in excluding from the record the x-ray, pulmonary function study and physical examination results associated with claimant's state claim for benefits. Employer's Brief at 24. X-rays, pulmonary function studies, and medical reports are specifically limited by Section 725.414. 20 C.F.R. §725.414(a)(2), (a)(3). As none of the evidence associated with the state claim falls within the exception for hospitalization or treatment records, see 20 C.F.R. §725.414(a)(4), or the exception for prior federal black lung claim evidence, see 20 C.F.R. §725.309(d)(1), the administrative law judge properly held inadmissible under Section 725.414, the x-ray, pulmonary function study and physical examination results associated with claimant's state claim for benefits, as employer had already reached its evidentiary limits in its affirmative case. Hearing Transcript at 30-34.
Employer additionally contends that the administrative law judge erred in failing to find that good cause existed for the admission into the record of its excess medical evidence, including the additional x-ray interpretations of Drs. Wiot, Spitz and Meyer, the additional medical opinions by Drs. Repsher and Rosenberg, and the medical evidence associated with the West Virginia Occupational Pneumoconiosis Board (WVOPB) determinations. Employer's Brief at 21. We disagree.
The administrative law judge did not abuse his discretion in determining that employer did not establish good cause under Section 725.456(b)(1) for the submission of the medical evidence proffered by employer in excess of the imitations. Clark, 12 BLR at 1-153. Employer argued to the administrative law judge that good cause existed because the excess evidence was “relevant.” Employer's Brief at 18-20. The administrative law judge found the assertion that the excess evidence was relevant to be insufficient to establish good cause. Hearing Transcript at 33-34. The administrative law judge's finding was reasonable. Cf. Conn v. White Deer Coal Co., 6 BLR 1-979, 1-981-82 (1984)( that a mere assertion that evidence is relevant does not establish good cause for a party's failure to timely submit the evidence under the former Section 725.456(b)(2)(2000)). It was employer's burden to demonstrate good cause. See 20 C.F.R. §725.456(b)(1); 65 Fed. Reg. 79920, 80000 (Dec. 20, 2000)( that a party must “convince the administrative law judge that the particular facts of a case justify the submission of additional medical evidence”). On the facts and arguments presented, we detect no abuse of discretion in the administrative law judge's determination that employer did not demonstrate good cause for exceeding the limits of Section 725.414. Clark, 12 BLR at 1-153.
Employer next contends...
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