Dalton v. Frontier-Kemper Constructors Inc.
| Decision Date | 27 April 2007 |
| Docket Number | BRB 06-0596 BLA |
| Parties | WILLIAM E. DALTON Claimant-Respondent v. FRONTIER-KEMPER CONSTRUCTORS, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand of Rudolf L. Jansen Administrative Law Judge, United States Department of Labor.
Anne Megan Davis (Johnson, Jones, Snelling, Gilbert & Davis) Chicago, Illinois, for claimant.
Mary Lou Smith (Howe, Anderson & Steyer, P.C.), Washington, D.C for employer.
Before: McGRANERY, HALL, and BOGGS, Administrative Appeals Judges.
DECISION and ORDER
McGRANERY, Administrative Appeals Judge:
Employer appeals the Decision and Order on Remand (01-BLA-0315) 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). This case involves a claim filed on June 1, 1999 and is before the Board for the second time.
In the initial decision, the administrative law judge credited claimant with twenty-two years and three months of coal mine employment and found that employer was the responsible operator liable for the payment of any benefits. In regard to the merits of the claim, the administrative law judge found that the evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4). The administrative law judge further found that claimant was entitled to the presumption that his pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R §718.203(b). After finding that the issue of total disability was not contested, the administrative law judge found that the evidence established that claimant’s total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
By Decision and Order dated November 26, 2004, the Board affirmed the administrative law judge’s designation of employer as the responsible operator and his finding that claimant established at least ten years of coal mine employment. Dalton v. Frontier-Kemper Constructors, Inc., BRB No. 04-0206 BLA (Nov. 26, 2004) (unpub.). However, the Board vacated the administrative law judge’s findings that the evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (4) and remanded the case for further consideration. Id. In light of its decision to vacate the administrative law judge’s findings pursuant to 20 C.F.R. §718.202(a)(1) and (4), the Board also vacated the administrative law judge’s findings pursuant to 20 C.F.R. §§718.203(b) and 718.204(c). [1] Id.
On remand, the administrative law judge found that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Having found that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), the administrative law judge found that it was not necessary to address whether the medical opinion evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge further found that claimant was entitled to the 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 established that claimant’s total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in finding that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Employer also argues that the administrative law judge erred in finding that the medical opinion evidence established that claimant’s chronic obstructive pulmonary disease arose out of his coal mine employment. Claimant responds in support of the administrative law judge’s award of benefits. In a reply brief, employer reiterates its previous contentions of error. The Director, Office of Workers’ Compensation Programs, has not filed a response brief.
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).
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); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987).
Employer initially argues that the administrative law judge erred in finding the x-ray evidence sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). We disagree. In considering the x-ray evidence, the administrative law judge acted within his discretion by according greater weight to the interpretations of claimant’s most recent x-rays, i.e., the interpretations of x-rays taken in 2002. See Pate v. Alabama By-Products Corp., 6 BLR 1-636 (1983); Decision and Order on Remand at 6. The administrative law judge also properly accorded greater weight to the interpretations rendered by physicians with the dual qualifications of B reader and Board-certified radiologist. See Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984); Decision and Order on Remand at 5-6.
Three dually qualified physicians, Drs. Cappiello, Miller, and Ahmed, interpreted claimant’s November 11, 2002 and December 30, 2002 x-rays as positive for pneumoconiosis, Claimant’s Exhibits 1-3, while two equally qualified physicians, Drs. Wheeler and Scott, interpreted these x-rays as negative for the disease. Employer’s Exhibits 1-4. Because six of the ten x-ray interpretations of claimant’s two most recent x-rays rendered by the best qualified physicians are positive for pneumoconiosis, the administrative law judge found that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Decision and Order on Remand at 6.
Employer argues that the administrative law judge erred in relying upon a “number tally” to find that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Contrary to employer’s characterization, the administrative law judge did not rely merely upon a “number tally” of the x-ray interpretations. In this case, the administrative law judge properly considered the number of x-ray interpretations, along with the readers’ qualifications, the dates of the x-rays, the quality of the x-ray films, and the actual readings. See Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); see also Wheatley v. Peabody Coal Co., 6 BLR 1-1214 (1984); see generally Gober v. Reading Anthracite Co., 12 BLR 1-67 (1988). Because it is supported by substantial evidence, we affirm the administrative law judge’s finding that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).
Ordinarily, an administrative law judge’s finding that the existence of pneumoconiosis was established by x-ray evidence at Section 718.202(a)(1) would obviate the need for him to render a separate finding regarding whether the medical opinion evidence establishes the existence of pneumoconiosis at Section 718.202(a)(4). [2] See Dixon v. North Camp Coal Co ., 8 BLR 1-344, 1-345 (1985). However, in this case, the administrative law judge credited medical opinion evidence attributing claimant’s total disability to “legal” pneumoconiosis, in the form of chronic obstructive pulmonary disease due partly to coal mine dust exposure, pursuant to 20 C.F.R. §718.204(c). Decision and Order on Remand at 9-10. Before addressing whether the evidence established that claimant’s total disability was due to “legal” pneumoconiosis pursuant to 20 C.F.R. §718.204(c), the administrative law judge should have determined first whether the medical opinion evidence established the existence of “legal” pneumoconiosis at 20 C.F.R. §718.202(a)(4). See 20 C.F.R. §§718.201(a)(2), 718.204(c)(1). Consequently, we remand the case to the administrative law judge for his consideration of whether the medical opinion evidence is sufficient to establish the existence of “legal” pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). [3]
Employer argues that the evidence does not establish that claimant’s chronic obstructive pulmonary disease arose out of his coal mine employment. In this case, Drs. Carandang, Selby, Diaz, and Cohen diagnosed chronic obstructive pulmonary disease. While Drs. Carandang and Selby attributed claimant’s chronic obstructive pulmonary disease to his cigarette smoking, Director’s Exhibits 9, 20, Drs. Diaz and Cohen opined that the miner’s chronic obstructive pulmonary disease was due to both cigarette smoking and coal dust exposure. [4] Claimant’s Exhibits 5, 6.
In his 2003 decision, the administrative law judge found that the medical opinion evidence established the existence of “pneumoconiosis” pursuant to 20 C.F.R. §718.202(a)(4). Decision and Order at 20-21. However, the Board vacated the administrative law judge’s finding pursuant to 20 C.F.R §718.202(a)(4) because the...
To continue reading
Request your trial