Cotton v. Key Mining, Inc.

• Decision Date: 16 November 2009
• Docket Number: BRB 09-0262 BLA
• Parties: HELEN L. COTTON o/b/o and as Widow of CLIFFORD M. COTTON Claimant-Petitioner v. KEY MINING, INCORPORATED and AMERICAN MINING INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
• Court: Court of Appeals of Black Lung Complaints

HELEN L. COTTON o/b/o and as Widow of CLIFFORD M. COTTON Claimant-Petitioner v. KEY MINING, INCORPORATED and AMERICAN MINING INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest BRB Nos. 09-0262 BLA

Court of Appeals of Black Lung

November 16, 2009

UNPUBLISHED OPINION

Appeal of the Decision and Order Denying Request for Modification and the Decision and Order Denying Benefits of Paul C Johnson, Jr., Administrative Law Judge, United States Department of Labor.

Helen L. Cotton, Oliver Springs, Tennessee, pro se .

Waseem A. Karim (Jackson Kelly PLLC), Lexington, Kentucky, for employer/carrier.

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

DECISION and ORDER

PER CURIAM

Claimant without the assistance of counsel, appeals the Decision and Order Denying Request for Modification (06-BLA-6194) and the Decision and Order Denying Benefits (06-BLA-6193) of Administrative Law Judge Paul C. Johnson, Jr., rendered on a miner’s subsequent claim and a survivor’s claim respectively, 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 administrative law judge credited the miner with thirty-six years and eleven months of qualifying coal mine employment, and determined that the miner’s claim was subject to the provisions at 20 C.F.R. §§725.309(d) and 725.310. The administrative law judge found that the newly submitted autopsy evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2), an element of entitlement previously adjudicated against the miner. Consequently, the administrative found that claimant had established a basis for modification of the prior denial pursuant to Section 725.310, and a change in an applicable condition of entitlement pursuant to Section 725.309(d). Considering the entire record, the administrative law judge found that the evidence was sufficient to establish the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), but insufficient to establish total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge denied modification in the miner’s claim. Adjudicating the survivor’s claim pursuant to 20 C.F.R. Part 718, the administrative law judge found that claimant established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), but failed to establish that the miner’s death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the administrative law judge denied benefits in the survivor’s claim.

On appeal, claimant generally challenges the administrative law judge’s denial of benefits in both the miner’s claim and the survivor’s claim. ^[2] Employer responds, urging affirmance of the administrative law judge’s denial of benefits in both claims. The Director, Office of Workers’ Compensation Programs, is not participating in either appeal. ^[3]

In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised to be whether the Decision and Order below is supported by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989). We must affirm the administrative law judge’s Decision and Order if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law. ^[4] 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 MINER’S CLAIM

In order to establish entitlement to benefits in the miner’s claim pursuant to 20 C.F.R. Part 718, claimant must establish that the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis was totally disabling. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204; Peabody Coal Co. v. Hill, 123 F.3d 412, 21 BLR 2-192 (6th Cir. 1997); Trent v. Director, OWCP, 11 BLR 1-26 (1987). Failure to establish any one of these elements precludes entitlement. Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc ).

While the administrative law judge found that the miner suffered from pneumoconiosis arising out of coal mine employment at Sections 718.202(a), 718.203(b), he accurately determined that the record contains no evidence of complicated pneumoconiosis sufficient to invoke the irrebuttable presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.304, and found that the evidence of record was insufficient to establish a totally disabling respiratory or pulmonary impairment pursuant to Section 718.204(b)(2)(i)-(iv).

Relevant to Section 718.204(b)(2)(i), a review of the record reveals ten pulmonary function studies, of which eight produced non-qualifying results, one produced qualifying results, and one was not completed by the miner. ^[5] Director’s Exhibits 1, 11, 12, 14, 17, 32. On July 10, 2003, Dr. Fino reviewed the qualifying pulmonary function study dated August 28 2002, and opined that it was invalid due to evidence of an abrupt onset to exhalation, hesitancy and inconsistency in the expiratory flows, premature termination to exhalation before five seconds, lack of plateauing in the expiratory curves, lack of reproducibility in the expiratory curves, and lack of patient effort and cooperation. Director’s Exhibit 37.

In summarizing the pulmonary function studies of record, the administrative law judge failed to list the May 3, 1995 study administered by Dr. Baker and the October 11, 2002 study administered by Dr. Justice, both of which produced non-qualifying values. Decision and Order on Modification at 12-13; Director’s Exhibits 1, 32. In addition, the administrative law judge did not discuss Dr. Fino’s invalidation of the qualifying August 28, 2002 pulmonary function study. Director’s Exhibit 37. Nevertheless, as this evidence supports the administrative law judge’s determination that the weight of the pulmonary function studies of record was insufficient to establish total disability at Section 718.204(b)(2)(i), we deem the administrative law judge’s failure to address these exhibits to be harmless error. See Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984). The administrative law judge reasonably accorded less weight to the sole qualifying pulmonary function study dated August 28, 2002, as he determined that the remaining pulmonary function studies of record demonstrated that the miner’s comprehension and effort in performing the tests were “inconsistent at best.” ^[6] See Clayton v. Pyro Mining Co., 7 BLR 1-551, 1-556 (1984); Decision and Order on Modification at 13. The administrative law judge was further persuaded that the miner’s performance during the tests was suboptimal based on the July 27, 2001 pulmonary function study administered by Dr. Hughes, who concluded that the values obtained were invalid because the miner, due to his Alzheimer’s disease, was unable to fully comprehend the instructions that would enable him to adequately perform the test. See Jeffries v. Director, OWCP, 6 BLR 1-1013, 1-1014 (1984); Director’s Exhibit 11. Hence, the administrative law judge, within a permissible exercise of his discretion, found that the sole qualifying pulmonary function study of August 28, 2002 was “a clear anomaly” when compared to the other pulmonary function studies of record administered before and after it. See Director, OWCP v. Mangifest, 826 F.2d 1318, 10 BLR 2-220 (3d Cir. 1987); Crapp v. United States Steel Corp., 6 BLR 1-476 (1983); see also Andruscavage v. Director, OWCP, No. 93-3291 (3d Cir. Feb. 22, 1994) (unpub.); Decision and Order on Modification at 13; Director’s Exhibit 14. The administrative law judge properly found that the more reliable pulmonary function studies of record produced non-qualifying values, and therefore, failed to demonstrate total respiratory disability. 20 C.F.R. §718.204(b)(2)(i); see Winchester v. Director, OWCP, 9 BLR 1-177 (1986); Decision and Order on Modification at 13. Because the administrative law judge’s weighing of the pulmonary function studies is rational and supported by substantial evidence, we affirm his determination that the pulmonary function study evidence is insufficient to establish total respiratory disability under Section 718.204(b)(2)(i).

We also affirm the administrative law judge’s finding that claimant failed to establish total disability pursuant to Section 718.204(b)(2)(ii), as the administrative law judge accurately determined that none of the arterial blood gas studies of record produced qualifying values. ^[7] Decision and Order on Modification at 13; Director’s Exhibits 1, 11, 12, 17; see Tucker v. Director, OWCP, 10 BLR 1-35 (1987); Decision and Order on Modification at 13. Similarly, we affirm the administrative law judge’s determination that, because the record contains no evidence of cor pulmonale with right-sided congestive heart failure, claimant cannot establish total disability pursuant to Section 718.204(b)(2)(iii). See Newell v. Freeman United Mining Co., 13 BLR 1-37, 1-39 (1989), rev’d on other grounds, 933 F.2d 510, 15 BLR 2-124 (7th Cir. 1991); Decision and Order on Modification at 12.

Relevant to Section 718.204(b)(2)(iv), the medical opinion evidence consists of the opinions of Drs. Bruton, Hudson, Dahhan, and Repsher, that the miner had the physiological capacity to continue his previous coal mine work from a respiratory standpoint, and the contrary opinion of Dr. Baker, that the miner did not possess the...