Brumley v. H.C. Coal Co.
| Decision Date | 30 December 2010 |
| Docket Number | BRB 10-0245 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ARNOLD BRUMLEY Claimant-Respondent v. H.C. COAL COMPANY and KENTUCKY COAL PRODUCERS' SELF-INSURANCE FUND 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UNPUBLISHED OPINION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 Awarding Benefits of Alice M Craft, Administrative Law Judge, United States Department of Labor.
Ronald E. Gilbertson (K & L Gates LLP), Washington, D.C., for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2008-BLA-5215) of Administrative Law Judge Alice M. Craft rendered on a subsequent claim [1]filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). Claimant filed his subsequent claim on January 11, 2002, [2]and the district director issued a Proposed Decision and Order awarding benefits on April 17, 2003. Director's Exhibits 2, 33. At employer's request, the case was forwarded to the Office of Administrative Law Judges (the OALJ) for a formal hearing, which was held on April 30, 2004, before Administrative Law Judge Pamela Lakes Wood. In a Decision and Order issued on April 18, 2005, Judge Wood found that the evidence was sufficient to establish the existence of pneumoconiosis and total disability, but that claimant failed to prove that he was totally disabled due to pneumoconiosis. Claimant filed a motion for reconsideration on May 6, 2005, asserting that he did not receive a complete pulmonary evaluation, as required under the regulations. Judge Wood issued an Order Granting Reconsideration, Vacating Decision and Order, and Remanding Claim to District Director on July 28, 2005. Judge Wood determined that because the Department of Labor (DOL) sponsored pulmonary evaluation, performed by Dr. Wicker on February 26, 2002, was incomplete on the issue of disability causation, it was necessary to remand the case to the district director in order for Dr. Wicker to correct the deficiencies in his report.
On remand, Dr. Wicker prepared two supplemental reports dated November 30, 2005 and December 6, 2005. The case was then returned to the OALJ, and a second hearing was held before Administrative Law Judge Joseph E. Kane on January 12, 2007. At the hearing, claimant again raised the issue of whether he had received a complete pulmonary evaluation. Judge Kane issued an Order of Remand on March 14, 2007, finding that Dr. Wicker's supplemental opinions also did not satisfy the Director's obligation to provide claimant with a complete pulmonary evaluation on the issue of disability causation pursuant to 20 C.F.R. §725.406. Judge Kane therefore remanded the case to the district director with an instruction that claimant be provided with a new pulmonary evaluation with a different physician.
On remand, claimant was evaluated by Dr. Baker at the request of DOL. When the case was returned to the OALJ, it was assigned to Judge Craft (the administrative law judge). In a Decision and Order issued on December 9, 2009, the administrative law judge credited claimant with twenty-three and three-quarter years of coal mine employment and adjudicated this claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that claimant established a totally disabling respiratory impairment due to coal dust exposure, based on Dr. Baker's opinion, and that he demonstrated, therefore, a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. Reviewing the claim on the merits, the administrative law judge determined 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)(1), (4), 718.203, and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b)(2), (c). Accordingly, the administrative law judge awarded benefits, commencing March 2001, the month in which the denial of claimant's prior claim became final.
On appeal, employer contends that claimant should not have received a new pulmonary evaluation with Dr. Baker, as Dr. Wicker's opinion was adequate to fulfill the DOL's obligation pursuant to 20 C.F.R. §725.406. Employer requests that the case be remanded to the administrative law judge for consideration of only that evidence which was initially transferred to Judge Kane. Employer also contends that the principle of res judicata precludes claimant from establishing that he is totally disabled due to pneumoconiosis based on Dr. Baker's 2007 report, and that the administrative law judge erred in failing to address whether there has been an actual change in claimant's condition since the prior denial of his claim. Employer further asserts that the administrative law judge erred in crediting the newly submitted opinion of Dr. Baker, along with the opinions of Drs. Bushey and Westerfield, developed in conjunction with claimant's prior claim, over the opinions of Drs. Dahhan and Broudy, on the issue of whether claimant's disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). [3] Finally, employer asserts that the administrative law judge erred in determining the date from which benefits are payable. Claimant has not responded to employer's appeal. The Director, Office of Workers' Compensation Programs (the Director), has declined to file a brief in response to employer's appeal, unless specifically requested to do so by the Board.
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. [4] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
Initially, we address employer's contention that Dr. Wicker's opinion was adequate to fulfill the DOL's obligation pursuant to 20 C.F.R. §725.406 and, therefore, claimant should not have received a new pulmonary evaluation by Dr. Baker. The initial DOL-sponsored pulmonary evaluation was performed by Dr. Wicker on February 26, 2002. Director's Exhibit 42. Dr. Wicker recorded a coal mine employment history of thirty-five years, noted the absence of a smoking history, and obtained a chest x-ray, a pulmonary function study, and a blood gas study. Id. Dr. Wicker read the x-ray as positive for simple pneumoconiosis and noted the presence of a Category A large opacity. Id. Dr. Wicker diagnosed simple pneumoconiosis, based on the x-ray and claimant's employment history. Id. Dr. Wicker opined that claimant was totally disabled, stating that claimant's “respiratory capacity does not appear to be adequate to perform his previous occupation in the coal mining industry which appears to be due to exposure to coal in the coal mining industry.” Id. When asked to identify the extent to which pneumoconiosis contributed to the impairment, he wrote, “[n]ot applicable.” Id.
Judge Wood found that Dr. Wicker's opinion did not constitute a complete pulmonary evaluation because he “relie[d] upon an inaccurate smoking history” and “left the critical portions . . . on the issue of the etiology of [claimant's] total disability blank.” July 28, 2005 Order of Remand at 3. Judge Wood further noted that Dr. Wicker provided no explanation for his statement that claimant's disabling impairment “appears to be due to exposure to coal in the coal mining industry.” Id., quoting Director's Exhibit 42. Judge Wood concluded that it was necessary to remand the case to the district director and explained:
Although reliance upon an inaccurate smoking history may not be grounds for a remand, I agree with the [district director] that a complete pulmonary examination should include a determination by the examiner as to whether coal mine employment contributed to [claimant's] respiratory condition[, ] as well as consideration by the examiner of the impact of any repeat testing upon his opinion. . . . [U]nder the specific facts of this case, I find that a remand for clarification and expansion of Dr. Wicker's opinion, to remedy the above deficiencies, is required.
July 28, 2005 Order of Remand at 4.
On remand, the district director sought clarification of Dr. Wicker's disability causation opinion. In a letter dated November 30, 2005, Dr. Wicker reiterated that claimant suffers from pneumoconiosis, as seen on x-ray, and further stated that the fact that claimant has smoked in the past affects the diagnosis. Director's Exhibit 42-19. He stated that cigarette smoking would contribute to claimant's pulmonary disability, and that claimant's “respiratory incapacity is based primarily on his obstructive lung disease which would have arisen primarily from his cigarette abuse.” Id. He concluded, “It is my opinion that, at this point, his disability arises purely from the cigarette abuse.” Id.
In a subsequent letter dated December 6, 2005, Dr. Wicker reiterated his opinion that claimant's respiratory impairment arises solely from claimant's “abuse of cigarettes.” Director's Exhibit 42. He opined that claimant “does not appear to have complicated [pneumoconiosis], rather he has simple pneumoconiosis” based on claimant's history of “coal mine employment plus [chest x-ray findings].” Id. He noted that repeat pulmonary function studies revealed no significant difference in terms of the normal predicted values and, therefore, would not change his...
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