Chappell v. Drummond Company, Inc., BRB 11-0290 BLA

Decision Date31 January 2012
Docket NumberBRB 11-0290 BLA
CourtCourt of Appeals of Black Lung Complaints
PartiesEDWARD CHAPPELL Claimant-Petitioner v. DRUMMOND COMPANY, INCORPORATED Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

UNPUBLISHED OPINION

Appeal of the Decision and Order Denying Request for Modification of Theresa C. Timlin, Administrative Law Judge, United States Department of Labor.

Joan B. Singleton, Bessemer, Alabama, for claimant.

Will A. Smith (Maynard, Cooper & Gale, P.C.), Birmingham Alabama, for employer.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Claimant [1]appeals the Decision and Order Denying Request for Modification (09-BLA-5518) of Administrative Law Judge Theresa C. Timlin rendered on a subsequent claim [2]filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) (to be codified at 30 U.S.C §§921(c)(4) and 932(l)) (the Act). [3] The administrative law judge credited the miner with thirty-six years of coal mine employment, [4]based on the parties' stipulation, and adjudicated this claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that the evidence did not establish a mistake in a determination of fact pursuant to 20 C.F.R. §725.310. The administrative law judge also found that the new evidence did not establish the presence of complicated pneumoconiosis pursuant to 20 C.F.R §718.304. However, the administrative law judge found that the new autopsy evidence established the existence of simple pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2). Consequently, the administrative law judge found that the evidence established a change in conditions pursuant to 20 C.F.R. §725.310. On the merits, the administrative law judge found that the evidence did not establish total respiratory disability pursuant to 20 C.F.R §718.204(b)(2)(i)-(iv). The administrative law judge also found that, because the evidence did not establish total respiratory disability, claimant was not entitled to the rebuttable presumption of total disability due to pneumoconiosis pursuant to Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4). Accordingly, the administrative law judge denied benefits.

On appeal, claimant contends that the administrative law judge erred in finding that the evidence did not establish a mistake in a determination of fact at 20 C.F.R. §725.310. Claimant also contends that the reports of Drs. Scott and Caffrey should be stricken from the record. In addition, claimant contends that the pulmonary function and arterial blood gas studies dated August 23, 2006 should be stricken from the record. Further, claimant challenges the administrative law judge's finding that the evidence did not establish the presence of complicated pneumoconiosis at 20 C.F.R. §718.304. Claimant additionally challenges the administrative law judge's finding that the evidence did not establish total respiratory disabling at 20 C.F.R. §718.204(b)(2)(iv). Lastly, claimant challenges the administrative law judge's finding that invocation of the presumption of total disability due to pneumoconiosis pursuant to Section 411(c)(4) of the Act was not established. Employer responds, urging affirmance of the administrative law judge's denial of benefits. [5] The Director, Office of Workers' Compensation Programs, has declined to participate in this appeal. [6]

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).

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).

Under Section 22 of the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. §922, as incorporated into the Black Lung Benefits Act by 30 U.S.C. §932(a), the fact-finder may, on the ground of a change in conditions or a mistake in a determination of fact, reconsider the terms of an award or denial of benefits. See 20 C.F.R. §725.310. The intended purpose of allowing modification based on a mistake in a determination of fact is to vest the fact-finder “with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.” [7] O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971); see Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 22 BLR 2-429 (7th Cir. 2002); Director, OWCP v. Drummond Coal Co. [Cornelius], 831 F.2d 240, 10 BLR 2-322 (11th Cir. 1987).

Initially, we will address claimant's contention that the administrative law judge erred in finding that the evidence did not establish a mistake in a determination of fact at 20 C.F.R. §725.310. Claimant asserts that [t]he miner is entitled to past-due benefits because of a mistake in facts [sic] which overlooked his prior award of Social Security and long-term disability benefits due to pneumoconiosis.” Claimant's Brief at 17. Specifically, claimant argues that the Administrative Procedure Act (APA) was violated because the regulatory provision regarding decisions by other governmental agencies pursuant to 20 C.F.R. §410.470 was ignored. Claimant maintains that, under Section 410.470, the Social Security Administration's grant of benefits for pneumoconiosis precludes a denial of black lung benefits.

Contrary to claimant's assertion, the administrative law judge properly found that documents regarding disability benefits by the Social Security Administration and an insurance company were not probative on the issue of pneumoconiosis. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en banc). In finding that the evidence of record did not establish a mistake in a determination of fact, the administrative law judge considered an award of disability benefits granted by the Social Security Administration. The administrative law judge specifically stated:

The Social Security Disability documents that [the miner] submitted here do not specify the grounds on which disability benefits were granted, thus [the miner] has not shown that the decision was made under §223 of the Social Security Act. [The miner's] Social Security documentation makes no mention of pulmonary impairment, pneumoconiosis, or §223, therefore it is not probative on the issue of whether [the miner] suffered from pneumoconiosis.

Decision and Order at 4. Further, in finding that the insurance documentation was not relevant to a determination of pneumoconiosis, the administrative law judge stated: +

[The miner] also argues that he received workers' compensation due to a knee injury and pneumoconiosis. In support of this argument, he submitted a life insurance application stating that he was receiving long-term disability benefits from Equicor due to a right knee injury and pneumoconiosis. The document first appeared in the record on December 28, 1992. (DX 1-30-4). However, the application is not supported by medical evidence, and [the miner] did not submit any direct evidence or supporting documentation from Equicor regarding the basis for his disability payments.

Id. at 4-5.

The Board has held that, while determinations made by other agencies serve as relevant evidence to Department of Labor adjudication, such determinations are not binding. See 20 C.F.R. §718.206; Schegan v. Waste Management & Processors, Inc., 18 BLR 1-41, 1-46 (1994). It is a matter within the administrative law judge's discretion to determine what weight to give to a state workers' compensation board decision. Clark, 12 BLR at 1-152. In this case, the administrative law judge permissibly found that the Social Security Administration disability award was not probative because it did not mention pneumoconiosis or a pulmonary impairment as the cause of the disability. Wenanski v. Director, OWCP, 8 BLR 1-487 (1986). In addition, the administrative law judge permissibly found that the state award was not relevant to a determination of pneumoconiosis because it was not documented, as the record contains no evidence to identify the medical or legal criteria that formed the basis for the award. Clark, 12 BLR at 1-152. Thus, we reject claimant's assertion that the administrative law judge erred in failing to consider the prior award of benefits by the Social Security Administration and the prior long-term disability benefits due to pneumoconiosis by the state. [8]

Claimant also contends that employer is collaterally estopped from challenging the prior finding of total respiratory disability, based on the award of benefits by the Social Security Administration and the award of state disability benefits. As discussed supra, the administrative law judge permissibly found that the award of disability benefits by the Social Security Administration and the award of long-term disability benefits by the state were not probative. Clark, 12 BLR at 1-152; Wenanski, 8 BLR at 1-489. Thus, we reject claimant's assertion that employer is collaterally estopped from challenging the prior finding of total respiratory disability, based on the award of disability benefits by the...

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