Davidson v. Whitaker Coal Corp., BRB 06-0830 BLA
| Decision Date | 28 June 2007 |
| Docket Number | BRB 06-0830 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JERRY DAVIDSON Claimant-Petitioner v. WHITAKER COAL CORPORATION Employer-Respondent Cross-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand - Denying Benefits of Thomas F. Phalen, Jr., Administrative Law Judge, United States Department of Labor.
Edmond Collett (Edmond Collett, P.S.C.), Hyden, Kentucky, for claimant.
Ronald E. Gilbertson (Bell, Boyd and Lloyd), Washington, D.C., for employer.
Michelle S. Gerdano (Jonathan L. Snare, Acting Solicitor of Labor; Allen H. Feldman, Associate Solicitor; Rae Ellen Frank James, Deputy 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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals and employer cross-appeals the Decision and Order on Remand-Denying Benefits (03-BLA-5212) of Administrative Law Judge Thomas F. Phalen, Jr., (the administrative law judge) rendered on a subsequent 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). [1] This case has been before the Board previously. In the prior appeal, the Board vacated the administrative law judge's January 29, 2004 Decision and Order, finding that claimant failed to establish a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309, based on claimant's failure to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a), because the administrative law judge erred in his refusal to apply the evidentiary limitations pursuant to 20 C.F.R. §725.414. The Board therefore remanded the case for further consideration under 20 C.F.R. §725.414, and for the administrative law judge to determine whether “good cause” was established for admitting employer's evidence in excess of the limitations pursuant to 20 C.F.R. §725.456(b)(1). The Board instructed the administrative law judge to then reconsider whether claimant established, based on the new evidence, a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. Employer filed a Motion for Reconsideration which the Board granted. The Board instructed the administrative law judge to consider whether claimant's subsequent claim was timely filed pursuant to 20 C.F.R. §725.308. The Board also addressed and rejected employer's arguments that Dr. Barrett's interpretation of the March 24, 2001 x-ray, and Dr. Fino's entire medical report, did not constitute evidence in excess of the evidentiary limitations pursuant to 20 C.F.R. §725.414.
On remand, the administrative law judge found that the claim was timely pursuant to 20 C.F.R. §725.308, and that employer failed to establish “good cause” to admit excess evidence pursuant to 20 C.F.R. §725.456(b)(1), (4). The administrative law judge found that the new evidence did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a), and therefore, did not establish a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d). 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 the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (4). [2] Claimant also contends that the Director, Office of Workers' Compensation Programs (the Director), failed to provide him with a complete and credible pulmonary evaluation to substantiate his claim. Employer responds, urging affirmance of the denial of benefits. The Director responds, contending that he met his obligation to provide claimant with a complete and credible pulmonary evaluation. Employer has filed a cross-appeal, contending that the administrative law judge erred in finding that this claim was timely filed, and in finding that employer did not establish good cause for the admission of excess evidence. The Director responds, urging affirmance of the administrative law judge's findings. Employer has filed a reply brief reiterating its contentions on cross-appeal.
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).
We initially address employer's contention, raised on cross-appeal, that the administrative law judge erred in finding claimant's subsequent, current claim is timely pursuant to 20 C.F.R. §725.308. The administrative law judge found that the claim was timely pursuant to the standard enunciated in Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-288 (6th Cir. 2001). [3]
The Act provides that a claim for benefits by, or on behalf of, a miner must be filed within three years of “a medical determination of total disability due to pneumoconiosis. . . .” 30 U.S.C. §932(f). In addition, the implementing regulation requires that the medical determination have “been communicated to the miner or a person responsible for the care of the miner. . ., ” and further provides a rebuttable presumption that every claim for benefits is timely filed. 20 C.F.R. §725.308(a), (c). With respect to the time limitation of 20 C.F.R. §725.308, the Sixth Circuit held in Kirk that “[t]he three-year limitations clock begins to tick the first time that a miner is told by a physician that he is totally disabled by pneumoconiosis. . . .” Kirk, 264 F.3d at 608, 22 BLR at 2-298.
Employer relied on the following evidence to attempt rebuttal of the timeliness presumption: Dr. Baker, in a report dated July 21, 1993, diagnosed claimant with occupational lung disease caused by his coal mine employment based upon x-ray, stated that his pulmonary impairment was due to a combination of his dust exposure history and smoking history, and recommended that claimant have no further exposure to coal dust. Director's Exhibit 1. Dr. Wicker, in a report dated April 28, 1995, diagnosed moderate pneumoconiosis and moderate osteoarthritis, and responded “no” when asked if claimant was able to perform his past work activity. Director's Exhibit 1. In an August 13, 1996 letter to the Board, claimant noted that Dr. Dineen diagnosed black lung disease based on a lung biopsy, and told him not to return to underground mining. Director's Exhibit 1. At the hearing on May 29, 2003, claimant testified that in 1991 or 1992, Dr. Dineen told him that he was disabled due to breathing problems, and told him not to perform underground mining. Hearing Tr. at 23-24.
The administrative law judge rejected employer's contention that the fact that Dr. Baker's and Dr. Wicker's reports were in the possession of claimant's attorney and in the record established that they were communicated to claimant. The administrative law judge further found that neither claimant's August 1996 letter nor his 2003 testimony established that a physician had communicated to him that he was totally disabled due to pneumoconiosis. Decision and Order on Remand at 3-4.
Employer first contends that the administrative law judge erred in failing to apply the plain language of the statute, which does not require that the medical determination be communicated to the miner. Section 422(f) of the Act, 30 U.S.C. §932(f); Employer's Brief at 8-9; Employer's Reply Brief at 6. Employer contends that if the communication requirement is read to “impose a burden beyond that contemplated by Congress” the regulation is invalid. Employer's Brief at 8. Thus, employer asserts, in order to “save the regulation from invalidity, ” the communication requirement should be read simply as a question of “notice” to the claimant. Id.
Employer's contention is without merit. The Board has long recognized that the statute's implementing regulation, 20 C.F.R. §725.308, contains additional language not found in the statute, including the requirement that the medical determination of total disability due to pneumoconiosis be communicated to the miner. 20 C.F.R. §725.308(a); Adkins v. Donaldson Coal Co., 19 BLR 1-34 (1993). In addition, neither the Board, nor any of the United States Courts of Appeals, has found the communication requirement to be inconsistent with the Act, and employer cites no authority in support of its argument that 20 C.F.R. §725.308 is invalid because it includes a communication requirement. Moreover, both the United States Court of Appeals for the Sixth Circuit, and the Board, have specifically upheld the application of the communication requirement set forth at 20 C.F.R. §725.308. See Kirk, 264 F.3d at 607, 22 BLR at 2-296; Brigance v. Peabody Coal Co., 23 BLR 1-170, 1-174-175 (2006)(en banc). For all of these reasons, we reject employer's assertion that the administrative law judge erred by failing to apply the plain language of the statute.
Employer next contends that the record establishes that claimant received the requisite communication more than three years before his filing of the current claim. Employer's Brief at 10-12; Employer's Response Brief at 3-7.
Employer specifically contends that the 1993 report of Dr. Baker and the 1995 report of Dr. Wicker diagnosing total disability due to pneumoconiosis constitute communication as they were offered by claimant's attorney and were part of the...
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