Connelly v. Eighty Four Mining Co.
| Decision Date | 19 February 2013 |
| Docket Number | BRB 12-0343 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | CLYDE CONNELLY Claimant-Respondent v. EIGHTY-FOUR MINING COMPANY 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UNPUBLISHED OPINION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 Thomas M Burke, Administrative Law Judge, United States Department of Labor.
Lynda D. Glagola (Lungs at Work), McMurray, Pennsylvania, lay representative, for claimant.
Margaret M. Scully (Thompson, Calkins & Sutter, LLC) Pittsburgh, Pennsylvania, for employer.
Helen H. Cox (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2009-BLA-5906) of Administrative Law Judge Thomas M. Burke granting claimant's request for modification of the denial of a subsequent claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (Supp. 2011) (the Act). Claimant's prior claim for benefits, filed on September 6, 2001, was finally denied on November 20, 2003 because, even though claimant established the existence of a totally disabling respiratory impairment, he failed to establish the existence of pneumoconiosis. Director's Exhibit 1. On December 29, 2006, claimant filed his current claim, which is considered a “subsequent claim for benefits” because it was filed more than one year after the final denial of his previous claim. 20 C.F.R. §725.309(d); Director's Exhibit 3. Administrative Law Judge Michael P. Lesniak denied this claim on January 16, 2009. Director's Exhibit 49. Claimant requested modification, pursuant to 20 C.F.R. §725.310, and on August 7, 2009, the district director denied claimant's request. Director's Exhibit 56. Claimant requested a hearing, and the case was forwarded to the Office of Administrative Law Judges, where it was assigned, without objection, to Administrative Law Judge Thomas M. Burke (the administrative law judge).
The administrative law judge credited claimant with twenty-one years of underground coal mine employment, and accepted employer's concession that claimant has a totally disabling respiratory impairment, pursuant to 20 C.F.R. §718.204(b)(2). Decision and Order at 4; Hearing Tr. at 19. Thus, the administrative law judge properly found that this claim is governed by the recently enacted amendments to the Act, which became effective on March 23, 2010, affecting claims filed after January 1, 2005. Decision and Order at 16.
Specifically, relevant to this living miner's claim, Section 1556 of Public Law No. 111-148 reinstated the presumption of Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4). Under Section 411(c)(4), if a miner establishes at least fifteen years of qualifying coal mine employment, and that he or she has a totally disabling respiratory impairment, there will be a rebuttable presumption that he or she is totally disabled due to pneumoconiosis. 30 U.S.C. §921(c)(4), amended by Pub L. No. 111-148, §1556, 124 Stat. 119 (2010) (to be codified at 30 U.SC. §921(c)(4)). If the presumption is invoked, the burden of proof shifts to employer to rebut the presumption. 30 U.S.C. §921(c)(4).
Applying amended Section 411(c)(4), the administrative law judge invoked the rebuttable presumption of total disability due to pneumoconiosis. [1] Consequently, the administrative law judge found that claimant established a change in an applicable condition of entitlement, through invocation of the presumption. See 20 C.F.R. §725.309(d). The administrative law judge further found that employer failed to establish either that claimant does not have pneumoconiosis, or that his pulmonary or respiratory impairment “did not arise out of, or in connection with, ” coal mine employment and, therefore, he found that employer failed to rebut the presumption. Accordingly, the administrative law judge found that claimant established a basis for modification of the prior denial, and awarded benefits. Decision and Order at 31.
On appeal, employer asserts that, in finding that employer failed to rebut the Section 411(c)(4) presumption, 30 U.S.C. §921(c)(4), the administrative law judge failed to consider the evidence submitted with the prior claim, and erred in his analysis of the medical opinion evidence. Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs, has filed a limited response, urging the Board to reject employer's arguments that the administrative law judge applied an improper rebuttal standard, and erred in referring to the preamble to the amended regulations in assessing the credibility of the medical opinions on the issue of legal pneumoconiosis. [2]
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. [3] 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).
Because claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4), the burden of proof shifted to employer to establish rebuttal by disproving the existence of pneumoconiosis, or by proving that claimant's pulmonary or respiratory impairment “did not arise out of, or in connection with, ” coal mine employment. 30 U.S.C. §921(c)(4). The administrative law judge found that employer failed to establish rebuttal by either method. Specifically, the administrative law judge found that while employer disproved the existence of clinical pneumoconiosis, it failed to disprove the existence of legal pneumoconiosis. [4] Decision and Order at 19, 30. The administrative law judge further found that employer failed to disprove a causal relationship between claimant's disability and his pneumoconiosis. Decision and Order at 31.
Employer initially contends that, in finding that employer did not rebut the presumption of total disability due to pneumoconiosis, the administrative law judge erred in failing to consider the medical evidence submitted with the prior claim. Employer's Brief at 20-22. Employer asserts that consideration of the prior claim evidence is important, because several physicians who examined claimant in 2001 and 2002 opined that claimant does not have legal pneumoconiosis, and that his obstructive impairment is not due to coal mine dust exposure. Employer's Brief at 20-22. Employer's contention lacks merit.
The administrative law judge acknowledged that in the prior claim claimant established that he was totally disabled, but not that he suffered from pneumoconiosis. Decision and Order at 2, 18. Employer has not explained how medical evidence from the prior claim, which predates claimant's invocation of the rebuttable presumption of total disability due to pneumoconiosis, is relevant to whether employer has rebutted the presumption. See Cooley v. Island Creek Coal Co., 845 F.2d 622, 624, 11 BLR 2-147, 2-149 (6th Cir. 1988)( that it is illogical to allow an administrative law judge to find rebuttal established based on evidence that predates the evidence on which invocation is based); Coffey v. Director, OWCP, 5 BLR 1-404, 1-407 (1982). Thus, under the facts of this case, we find no reversible error in the administrative law judge's declination to discuss in detail the prior claim evidence. [5] See Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).
Employer next contends that the administrative law judge erred in finding that employer failed to disprove the existence of legal pneumoconiosis. The administrative law judge considered the opinions of Drs. Cohen, Rasmussen, Celko, Houser, Fino, Rosenberg, and Renn. Each of these physicians agreed that claimant suffers from a disabling obstructive ventilatory impairment, but differed as to whether it was related to claimant's coal mine dust exposure. Drs. Cohen, Rasmussen, Celko, and Houser opined that claimant's obstructive impairment is due to a combination of coal mine dust exposure and cigarette smoking. Claimant's Exhibits 4, 6, 7; Director's Exhibits 11, 38-3, 38-4. Conversely, Drs. Fino, Rosenberg, and Renn attributed claimant's obstructive impairment exclusively to cigarette smoking. Director's Exhibits 37-1, 37-2, 41, 42; Employer's Exhibits 7-10.
In evaluating whether the evidence disproved the existence of legal pneumoconiosis, the administrative law judge accorded the greatest weight to Dr. Cohen's diagnosis of legal pneumoconiosis for several reasons; it was more persuasively explained; it was more consistent with the medical principles accepted by the Department of Labor (DOL) when it revised the definition of pneumoconiosis to include obstructive impairments arising out of coal mine employment, as set forth in the preamble; and it was supported by the opinions of Drs Rasmussen, Celko, and Houser. Decision and Order at 25-30. The administrative law judge found that Dr. Cohen's opinion was also entitled to greater weight based upon his superior qualifications. Id. at 26. Conversely, the administrative law judge found the opinions of Drs. Fino, Rosenberg, and Renn to be unpersuasive, in part, because he found that they were premised on assumptions that were inconsistent with the Act and the regulations. Decision and Order at 25-30. The administrative law judge, therefore, found that employer...
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