D.A. v. Bridger Coal Co.,, BRB 08-0500 BLA

• Decision Date: 26 October 2009
• Docket Number: BRB 08-0500 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: D.A. Widow of and on behalf of M.L. Claimant-Petitioner v. BRIDGER COAL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

D.A. Widow of and on behalf of M.L. Claimant-Petitioner
v.
BRIDGER COAL COMPANY Employer-Respondent

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest BRB Nos. 08-0500 BLA

Court of Appeals of Black Lung

October 26, 2009

UNPUBLISHED OPINION

Appeal of the Decision and Order Denying Living Miner and Survivor Benefits on Remand of Thomas M. Burke, Administrative Law Judge, United States Department of Labor.

D.A., LeMars, Iowa, pro se.

Ronald E. Gilbertson (K&L Gates LLP), Washington, D.C., for employer.

Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.

DECISION AND ORDER

McGRANERY, Administrative Appeals Judge:

Claimant appeals, without the assistance of legal counsel, the Decision and Order Denying Living Miner and Survivor Benefits on Remand (2004-BLA-93 and 2004-BLA-5960) of Administrative Law Judge Thomas M. Burke rendered on claims 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] This case is before the Board for the second time. In his initial decision, dated February 9, 2005, the administrative law judge found that claimant established that the miner had a coal mine employment history of twenty years, as conceded by employer, and adjudicated the consolidated miner's and survivor's claims pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that, while the chest x-ray evidence failed to establish the existence of simple pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), the autopsy and medical opinion evidence established the existence of simple pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2), (4). The administrative law judge further found, after reviewing all the relevant evidence, that the CT scan evidence supported the autopsy prosector's diagnosis of complicated pneumoconiosis. Based on this finding, the administrative law judge concluded that claimant was entitled to the irrebuttable presumption of total disability and death due to pneumoconiosis provided at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), as implemented by 20 C.F.R. §718.304. Accordingly, the administrative law judge awarded benefits on the miner's claim commencing as of March 1998, the month in which the miner filed his claim, through December 2001, the month preceding the miner's death, and on the survivor's claim from January 2002, the month of the miner's death.

Employer appealed, contending that the Board should reverse the award of benefits because the administrative law judge erred in finding the existence of complicated pneumoconiosis and thereby erred in finding claimant entitled to the irrebuttable presumption of total disability and death due to pneumoconiosis contained in 20 C.F.R. §718.304. Employer alternatively argued that the administrative law judge erred in failing to make specific findings as to whether the evidence established total disability due to pneumoconiosis and death due to pneumoconiosis pursuant to 20 C.F.R. §§718.204(c)(2000) and 718.205(c). ^[2] In addition, employer alleged that the administrative law judge erred in determining the onset date of benefits in the miner's claim. Employer requested that the case be remanded for reconsideration of all of the relevant evidence with respect to causation and death due to pneumoconiosis, as well as a determination on the onset date, if reached.

The Director, Office of Workers' Compensation Programs (the Director), responded to employer's appeal, but took no position on whether the administrative law judge's finding of complicated pneumoconiosis was correct. The Director maintained, however, that if the Board did not affirm the award of benefits pursuant to 20 C.F.R. §718.304, it must remand the case for the administrative law judge to determine whether the miner was totally disabled due to pneumoconiosis and whether his death was due to pneumoconiosis, as the administrative law judge did not make findings on these issues. Regarding the onset date of entitlement, the Director stated that, if the finding of entitlement is affirmed, the administrative law judge's onset date determination of March 1998 for the commencement of benefits is correct.

Upon consideration of the merits of employer's appeal, the Board affirmed, as unchallenged by the parties, the administrative law judge's finding that the existence of simple pneumoconiosis arising out of coal mine employment was established under 20 C.F.R. §§718.202(a)(2), (4) and 718.203(b). [D.L.A. ] v. Bridger Coal Co., BRB No. 05-0455 BLA, slip op. at 3 n.2. (Mar. 16, 2006) (unpub.). Regarding the evidence relevant to the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304, the Board noted that the United States Court of Appeals for the Fourth Circuit had held that an equivalency determination is required when assessing whether evidence other than an x-ray was sufficient to establish the existence of complicated pneumoconiosis. [D.L.A. ], BRB No 05-0455 BLA, slip op. at 4, citing Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000); Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 22 BLR 2-554 (4th Cir. 1999). Although the administrative law judge had found that the CT scan and autopsy evidence were sufficient to establish the existence of complicated pneumoconiosis, the Board observed that “[t]he administrative law judge did not determine that the medical evidence established that the node seen on CT scan, or the lesion seen on autopsy, would be seen on x-ray as an opacity greater than one centimeter, and there is no evidence in the record which would support such a determination.” Id. at 5. The Board vacated the administrative law judge's finding of complicated pneumoconiosis, and the award of benefits based thereon, and remanded the case for the administrative law judge to determine whether the evidence established total disability due to pneumoconiosis in the miner's claim and death due to pneumoconiosis in the survivor's claim. Id. at 5. The Board subsequently summarily denied employer's motion for reconsideration. [D.L.A. ], BRB No. 05-0455 BLA (Oct. 31, 2006) (unpub. Order).

On remand, in his Decision and Order dated February 26, 2008, the administrative law judge found that the evidence was sufficient to establish that the miner was suffering from a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b), but insufficient to establish disability causation at 20 C.F.R. §718.204(c) or death due to pneumoconiosis at 20 C.F.R. §718.205(c). Accordingly, the administrative law judge denied benefits in both claims.

In the current appeal, claimant generally challenges the administrative law judge's denial of benefits. Employer responds, urging affirmance of the administrative law judge's denial of benefits. The Director filed a letter indicating that he would not submit a substantive response brief, unless requested to do so by the Board.

In 2006, the Board was aware that this case arose within the jurisdiction of the United States Court of Appeals for the Tenth Circuit, which had not set forth a standard for establishing the existence of complicated pneumoconiosis by autopsy evidence pursuant to 20 C.F.R. §718.304(b). Hence, the Board turned to the teaching of the Fourth Circuit on the evidentiary requirements for establishing complicated pneumoconiosis with autopsy and biopsy evidence. ^[3] The Fourth Circuit had held in Blankenship that an equivalency determination is to be made when assessing whether evidence identified as massive lesions is sufficient to meet the objective standard of complicated pneumoconiosis diagnosed by x-ray pursuant to 20 C.F.R. §718.304(a), i.e., whether the massive lesions when viewed on x-ray would produce an opacity greater than one centimeter, and thus establish invocation of the irrebuttable presumption pursuant to 20 C.F.R. §718.304. ^[4] Blankenship, 177 F.3d at 244, 22 BLR at 2-561; see Scarbro, 220 F.3d at 256, 22 BLR at 2-101; see also Gray v. SLC Coal Co., 176 F.3d 382, 21 BLR 2-615 (6th Cir. 1999); Clites v. J & L Steel Corp., 663 F.2d 14, 3 BLR 2-86 (3d Cir. 1981).

Subsequent to our 2006 decision, the United States Court of Appeals for the Eleventh Circuit confronted the issue of establishing complicated pneumoconiosis with autopsy evidence pursuant to 20 C.F.R. §718.304(b). Pittsburg & Midway Coal Mining Co. v. Director, OWCP, [Cornelius], 508 F.3d 975, 24 BLR 2-72 (11th Cir. 2007). The court considered the Fourth Circuit's case law, but declined to impose an equivalency determination requirement, holding that to do so is inconsistent with the Act and the relevant regulations. By Order dated June 30, 2009 in this case, the Board acknowledged that the Eleventh Circuit's decision in Cornelius created a split among the circuit courts on the issue of whether an equivalency determination is necessary to establish the existence of complicated pneumoconiosis under subsection (b) of 20 C.F.R. §718.304. Consequently, the Board requested that claimant, employer and the Director submit supplemental briefs addressing the standard the Board should apply in reviewing the administrative law judge's determination that complicated pneumoconiosis had been established by autopsy evidence at 20 C.F.R. §718.304(b), since the instant case arises within the jurisdiction of one of the circuit courts that has not addressed the issue. The Board also invited the parties to consider, in the event that the Board decided to adopt the Eleventh Circuit's analysis in Cornelius and to reinstate the administrative law judge's 2005 Decision and Order awarding benefits in both claims, whether the Board should affirm that decision as supported by substantial evidence and in accordance with law.

Claimant did not respond to the Board's Order...