Dempsey v. Sewell Coal Co.
| Decision Date | 28 June 2004 |
| Docket Number | BRB 03-0615 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | WILLIAM O. DEMPSEY Claimant-Respondent Cross-Petitioner v. SEWELL COAL COMPANY Employer-Petitioner Cross-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal and Cross-Appeal of the Decision and Order-Awarding Benefits of Daniel L. Leland, Administrative Law Judge, United States Department of Labor.
James M. Phemister, Mary Z. Natkin (Washington and Lee University School of Law, Legal Practice Clinic), Lexington, Virginia for claimant.
Douglas A. Smoot, Kathy L. Snyder (Jackson Kelly PLLC) Morgantown, West Virginia, for employer.
Barry H. Joyner, Timothy S. Williams (Howard M. Radzely, Solicitor of Labor; Donald S. Shire, 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, McGRANERY, and HALL, Administrative Appeals Judges.
EN BANC
DECISION AND ORDER
Employer appeals and claimant cross-appeals the Decision and Order-Awarding Benefits (2002-BLA-5357) of Administrative Law Judge Daniel L. Leland rendered 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). [1] Claimant's prior application for benefits filed on April 27, 1989 was finally denied on August 15, 1989. Director's Exhibit 1. On February 8, 2001, claimant filed his current application, which is considered a "subsequent claim for benefits" because it was filed more than one year after the final denial of a previous claim. 20 C.F.R. §725.309(d); Director's Exhibit 3. The district director awarded benefits and employer requested a hearing, Director's Exhibits 33, 41, which was held before the administrative law judge on February 6, 2003.
In a Decision and Order-Awarding Benefits issued on May 30, 2003, the administrative law judge credited claimant with twenty-three years of coal mine employment [2] and found that the subsequent claim was timely filed. The administrative law judge found that the medical evidence developed since the prior denial of benefits established that claimant is totally disabled by a respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b). The administrative law judge therefore found that claimant demonstrated a change in an applicable condition of entitlement as required by 20 C.F.R. §725.309(d). Reviewing the entire record, 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), that CT-scan evidence was in equipoise and did not establish the existence of pneumoconiosis, and that the weight of the medical opinion evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Weighing the chest x-rays and medical opinions together, the administrative law judge found that the evidence established the existence of pneumoconiosis arising out of coal mine employment. See Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000). The administrative law judge further found that claimant is totally disabled and that his total disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge awarded benefits as of February 1, 2001, the month in which the subsequent claim was filed.
On appeal, employer contends that the administrative law judge erred in finding claimant's subsequent claim to be timely. Employer further asserts that the administrative law judge abused his discretion in excluding evidence submitted by employer in excess of the limitations set forth at 20 C.F.R. §725.414. Employer argues that the administrative law judge erred in finding a change in an applicable condition of entitlement established, and erred in his analysis of the medical evidence when he found that claimant established the existence of pneumoconiosis and that his total disability is due to pneumoconiosis. Employer also contends that the administrative law judge erred in finding the month of the subsequent claim's filing established the onset date. Claimant responds, urging affirmance of the administrative law judge's evidentiary rulings under Section 725.414 and the award of benefits. Claimant also cross-appeals, challenging the administrative law judge's admission of certain exhibits submitted by employer. Employer responds to claimant's cross-appeal, urging affirmance of the administrative law judge's rulings admitting evidence. The Director, Office of Workers' Compensation Programs (the Director), responds to both appeals, urging affirmance of most of the administrative law judge's evidentiary rulings under Section 725.414, and urging affirmance of the findings that the subsequent claim was timely, that a change in an applicable condition of entitlement was established, and that February 1, 2001 is the onset date. Employer has filed a reply brief reiterating its contentions. [3]
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). The Board reviews the administrative law judge's procedural rulings for abuse of discretion. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc).
Employer contends that the administrative law judge erred in finding that this subsequent claim constitutes a timely application for benefits. Employer argues that the subsequent claim, filed on February 8, 2001, does not meet the three-year statute of limitations for filing a claim provided at Section 422(f) of the Act, 30 U.S.C. §932(f), because it was filed more than three years after claimant received a medical determination of total disability due to pneumoconiosis. The administrative law judge applied the Board's holding that the statute of limitations at Section 422(f) of the Act, as implemented by 20 C.F.R. §725.308, applies only to the first claim filed, Andryka v. Rochester & Pittsburgh Coal Co., 14 BLR 1-34 (1990); Faulk v. Peabody Coal Co., 14 BLR 1-18 (1990), and found claimant's subsequent claim to be timely. Decision and Order at 13. Employer argues that the administrative law judge erred by failing to follow Tennessee Consol. Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-288 (6th Cir. 2001), and Furgerson v. Jericol Mining, Inc., 22 BLR 1-216 (2002)(en banc)(a case arising within the jurisdiction of the United States Court of Appeals for the Sixth Circuit in which the Board applied Kirk). [4]
Employer's contention lacks merit. Because this claim arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit, we are not obliged to apply the Sixth Circuit court's reasoning in Kirk to the present case. Director's Exhibit 5; see Shupe, 12 BLR at 1-202. Although decisions rendered by a circuit court can provide guidance in cases that do not arise within its geographical jurisdiction, the Board has declined to apply the language in Kirk regarding the statute of limitations beyond the boundaries of the Sixth Circuit, as it is not apparent that the court's holding is mandated by the Act or implementing regulations. See Faulk, 14 BLR at 1-21-22 (). For this reason, and because the Fourth Circuit court has not adopted the approach set forth in Kirk, we decline to apply it in this case. We therefore affirm the administrative law judge's finding that claimant's subsequent claim was timely filed. See Andryka, 14 BLR at 1-36-37; Faulk, 14 BLR at 1-20-22.
Employer contends that the administrative law judge erred by excluding medical evidence submitted by employer in excess of the evidentiary limits imposed by revised 20 C.F.R §725.414. [5] Employer argues that Section 725.414 is invalid. Employer argues further that the administrative law judge erred in his application of Section 725.414.
Section 725.414, in conjunction with Section 725.456(b)(1), sets limits on the amount of specific types of medical evidence that the parties can submit into the record. 20 C.F.R §§725.414; 725.456(b)(1). The claimant and the responsible operator may each "submit, in support of its affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports." 20 C.F.R. §725.414(a)(2)(i), (a)(3)(i). In rebuttal of the case presented by the opposing party, each party may submit "no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by" the opposing party "and by the Director pursuant to §725.406." [6] 20 C.F.R. §725.414(a)(2)(ii), (a)(3)(ii). Following rebuttal, each party may submit "an additional statement from the physician who originally interpreted the chest X-ray or...
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