Buchanan v. RAG American Coal Co.
| Decision Date | 29 August 2003 |
| Docket Number | BRB 02-0648 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JIMMIE D. BUCHANAN Claimant-Petitioner v. RAG AMERICAN COAL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Rudolf L. Jansen, Administrative Law Judge, United States Department of Labor.
Anne Megan Davis and Thomas E. Johnson (Johnson, Jones, Snelling Gilbert & Davis), Chicago, Illinois, for claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for employer.
Barry H. Joyner (Howard Radzely, Acting 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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order (00-BLA-0498) of Administrative Law Judge Rudolf L. Jansen awarding benefits 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 instant case involves a duplicate claim filed on August 27, 1998. [2] After crediting claimant with twenty years of coal mine employment, the administrative law judge found that the newly submitted evidence was insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(3). The administrative law judge, however, found that the newly submitted medical opinion evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge therefore, found that the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). The administrative law judge further found that claimant was entitled to a presumption that his pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R. §718.203(b). The administrative law judge also found that the evidence was sufficient to establish that claimant was totally disabled due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b) and (c). Accordingly, the administrative law judge awarded benefits. On appeal, employer contends that the administrative law judge erred in finding the evidence sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Employer also argues that the administrative law judge erred in finding the medical opinion evidence sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Employer further contends that the administrative law judge erred in finding the evidence sufficient to establish that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). [3] Citing the decision of the United States Court of Appeals for the Seventh Circuit in Peabody Coal Co. v. Vigna, 22 F.3d 1388, 18 BLR 2-215 (7th Cir. 1994), employer also argues that the administrative law judge erred in awarding benefits because claimant was disabled by a prior non-compensable condition. Claimant responds in support of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, contending that the administrative law judge applied the proper material change standard pursuant to 20 C.F.R. §725.309 (2000). The Director further notes his disagreement with employer's contention that legal pneumoconiosis can never be latent or progressive. The Director also asserts that a medical opinion which states that a miner's obstructive lung condition cannot be attributed to coal mine employment because such employment will never give rise to an obstructive condition is not credible and should be rejected. In a reply brief, employer reiterates its previous contentions. [4]
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).
Employer contends that the administrative law judge erred in finding the evidence sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). [5] In Sahara Coal Co. v. Director, OWCP [McNew], 946 F.2d 554, 15 BLR 2-227 (7th Cir. 1991), the United States Court of Appeals for the Seventh Circuit, within whose jurisdiction the instant case arises, held that a material change in conditions means either that the miner did not have black lung disease at the time of the first application but has since contracted it and become totally disabled by it, or that his disease has progressed to the point of becoming totally disabling although it was not at the time of the first application.
In Peabody Coal Co. v. Spese, 117 F.3d 1001, 21 BLR 2-113 (7th Cir. 1997), the Seventh Circuit addressed the evidence that a miner must produce in order to win the right to proceed on a second or subsequent claim. Noting that it had been "misunderstood in some quarters, " the Seventh Circuit discussed the scope of its decision in McNew. The Seventh Circuit explained that:
The key point is that the claimant cannot simply bring in new evidence that addresses his condition at the time of the earlier denial. His theory of recovery on the new claim must be consistent with the assumption that the original denial was correct. To prevail on the new claim, therefore, the miner must show that something capable of making a difference has changed since the record closed on the first application. As we said in [McNew], if the earlier denial was premised on a failure to show pneumoconiosis, the material change could be evidence showing that the disease has now manifested itself. If the earlier denial was premised on a failure to show total disability, even if the claimant had a mild case of pneumoconiosis, then the material change would need to relate to severity of the disability.
Spese, 117 F.3d at 1008, 21 BLR at 2-127.
In regard to the Director's "one-element" test, the Seventh Circuit stated that:
If by that the Director means that at least one element that might independently have supported a decision against the claimant has now been shown to be different (implying that the earlier denial was correct), then we would agree that the "one-element" test is the correct one. If the Director means something more expansive, his position would go beyond the principles of res judicata that are reflected in '725.309(c) and that we endorsed in [McNew].
Spese, 117 F.3d at 1009, 21 BLR at 2-128.
Administrative Law Judge J. Michael O'Neill denied claimant's prior 1993 claim because he found, inter alia, that the evidence was insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4) (2000), Director's Exhibit 34, findings subsequently affirmed by the Board. Buchanan v. Amax Coal Co., BRB No. 96-1415 BLA (July 18, 1997) (unpublished). Consequently, in order to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000), the newly submitted evidence must support a finding of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4).
Employer contends that the administrative law judge, in finding the evidence sufficient to establish a material change in conditions, erred in not determining whether claimant's "condition had actually worsened since the time of the last denial." Employer's Brief at 10. Contrary to employer's contention, the administrative law judge, in his consideration of whether the evidence was sufficient to establish a material change in conditions, applied the proper material change standard set out in Spese, i.e., whether the newly submitted evidence was sufficient to establish the existence of pneumoconiosis.
Employer also argues that although "clinical" pneumoconiosis may progress in rare cases after cessation of coal dust exposure, no basis exists for the notion that "legal" pneumoconiosis can so progress. Employer's Brief at 11. Employer argues that the administrative law judge erred in assuming that claimant could contract "legal" pneumoconiosis after he stopped working in the mines. Id. We disagree. Employer provides no basis for his assertion that "legal" pneumoconiosis cannot be latent or progressive. As the Director points out, the regulations, like the prior case law that they codify, recognize that pneumoconiosis is a progressive disease. 20 C.F.R. §718.201(c); see Amax Coal Co. v. Franklin, 957 F.2d 355, 359, 16 BLR 2-50, 2-57 (7th Cir. 1992) (Black lung disease, at least when broadly defined, is a progressive disease....). The United States Court of Appeals for the District of Columbia has recognized that the medical literature makes clear that pneumoconiosis may be latent and progressive. Nat'l Mining Ass'n v. Department of Labor, 292 F.3d 849, 863, --- BLR --- (D.C. Cir. 2002), aff'g in part and rev'g in part Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47, --- BLR --- (D.D.C. 2001).
Employer next argues that the administrative law judge committed numerous errors in finding the newly submitted medical opinion evidence sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). A finding of either clinical pneumoconiosis, see 20 C.F.R. §718.201(a)(1), or legal pneumoconiosis see 20 C.F.R. §718.201(a)(2), [6] is sufficient to support a finding of...
To continue reading
Request your trial