Donofrio v. Blackwood Anthracite, Inc.
| Docket Number | 22-0129 BLA,22-0130 BLA |
| Decision Date | 24 August 2023 |
| Parties | RUTH DONOFRIO (o/b/o and Widow of TONY DONOFRIO, JR.) Claimant-Petitioner v. BLACKWOOD ANTHRACITE, INCORPORATED and ROCKWOOD 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 |
UNPUBLISHED OPINION
Appeal of the Decision and Order Denying Benefits in Miner's Claim, on Request for Modification; and Denying Benefits in Survivor's Claim of Scott R. Morris, Administrative Law Judge, United States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for Claimant.
Paul K. Paterson (Mascelli & Paterson), Scranton Pennsylvania, for Employer and its Carrier.
Before: GRESH, Chief Administrative Appeals Judge, BOGGS and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Claimant[1] appeals Administrative Law Judge (ALJ) Scott R. Morris's Decision and Order Denying Benefits in Miner's Claim, on Request for Modification[] and Denying Benefits in Survivor's Claim (2021-BLA-05122 and 2021-BLA-05268) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2018) (the Act). This case involves Claimant's second request for modification of the denial of a miner's claim filed on June 14, 2013, and a survivor's claim filed on February 18 2020.[2]
In her August 24, 2016 Decision and Order Denying Benefits, ALJ Adele Higgins Odegard credited the Miner with 9.57 years of coal mine employment and found that while the Miner established the presence of pneumoconiosis, he failed to establish total disability. MC Director's Exhibit 43. Thus, she found he could not invoke the rebuttable presumption that he was totally disabled due to pneumoconiosis under Section 411(c)(4) of the Act.[3] 30 U.S.C. §921(c)(4) (2018); MC Director's Exhibit 43. The Miner appealed the decision to the Benefits Review Board, but later requested remand so that he could request modification; thus, the Board dismissed the appeal and remanded the case to the district director. MC Director's Exhibits 44, 47, 49. The Miner timely requested modification[4] of ALJ Odegard's decision, asserting both a change in conditions and a mistake in a determination of fact. MC Director's Exhibit 51. The district director denied modification, and the Miner requested a hearing before the Office of Administrative Law Judges. MC Director's Exhibits 55, 56.
On May 22, 2019, ALJ Lystra A. Harris denied the Miner's request for modification, finding no mistake of fact, the Miner failed to establish total disability, and the Miner failed to demonstrate a change in condition. MC Director's Exhibit 96. The Miner again appealed to the Board; during the pendency of the appeal, he died and Claimant requested dismissal and remand to the district director, which the Board granted. MC Director's Exhibits 80; S.C. Director's Exhibit 11. Thereafter, Claimant filed a claim for survivor's benefits and again requested modification of the denial of the miner's claim. S.C. Director's Exhibit 2; MC Director's Exhibit 103. The district director denied modification in the miner's claim and benefits in the survivor's claim. S.C. Director's Exhibit 27; MC
Director's Exhibit 105. Claimant requested a hearing in both claims. S.C. Director's Exhibit 34; MC Director's Exhibit 111.
The cases were consolidated and assigned to ALJ Morris (the ALJ). He credited the Miner with 9.57 years of coal mine employment and therefore found Claimant could not invoke the Section 411(c)(4) presumption in either the miner's or survivor's claim.[5] He further determined that Claimant failed to establish the Miner was totally disabled based on the new evidence and found no mistake of fact in the prior ALJs' findings that total disability was not established. Thus, he found Claimant could not establish entitlement to benefits in the miner's claim and failed to establish a basis for modification. 20 C.F.R. §§718.204(b); 725.310.
Based on the denial of benefits in the miner's claim, the ALJ found Claimant is not derivatively entitled to survivor's benefits pursuant to Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[6] Therefore, the ALJ considered whether Claimant could establish entitlement at 20 C.F.R. §718.205(b) without the benefit of a presumption. The ALJ found Claimant failed to establish that the Miner's death was due to pneumoconiosis and thus denied survivor's benefits.
On appeal, Claimant challenges the ALJ's findings that the Miner worked 9.57 years in coal mine employment and that Claimant failed to establish total disability, and thus could not invoke the Section 411(c)(4) presumption. She further argues the ALJ erred in finding death causation was not established in the survivor's claim. Employer responds, urging affirmance of the denial of benefits. Claimant filed a reply, reiterating her arguments. The Director, Office of Workers' Compensation Programs, has not filed a response.
The Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[7] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).
In reviewing the record on modification, an ALJ is authorized "to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971). The ALJ may correct any mistake of fact, including the ultimate fact of entitlement. Keating v. Director, OWCP, 71 F.3d 1118, 1123 (3d Cir. 1995).
Claimant argues the ALJ erred in excluding portions of Claimant's Exhibit 6 and in admitting Employer's Exhibits 3 through 5, as they are treatment records pertaining to non-pulmonary diseases, in violation of 20 C.F.R. §725.414(a)(4). Claimant's Brief at 3. We disagree.
Because the ALJ exercises broad discretion in resolving procedural and evidentiary matters, Dempsey v. Sewell Coal Corp., 23 BLR 1-47, 1-63 (2004) (en banc), a party seeking to overturn the disposition of an evidentiary issue must establish the ALJ's action represented an abuse of discretion. V.B. [Blake] v. Elm Grove Coal Co., 24 BLR 1-109, 1-113 (2009).
At the hearing in the current request for modification, Employer objected to certain portions of Claimant's Exhibit 6, consisting of Dr. Simelaro's report and attachments of medical "studies and articles." 2021 Hearing Transcript at 13-15. The ALJ agreed certain pages of the attachments should be excluded; specifically those containing handwritten notes and those that were abstracts rather than entire articles. He admitted only pages one, two, and nineteen through twenty-five of the "studies and articles" attachment of the exhibit.[8] Id. at 15-17. In addition, Claimant objected to Employer's Exhibits 3 through 5, consisting of treatment records from Lebanon Internal Medicine, arguing they did not pertain to a respiratory or pulmonary disease as the regulations require. Id. at 17. The ALJ overruled Claimant's objection and admitted the exhibits. Id. at 19.
Initially, we reject Claimant's argument that the ALJ erred in excluding portions of Claimant's Exhibit 6, as she has failed to explain how he abused his discretion, other than contending generally that Dr. Simelaro's opinion relied on the excluded medical authorities. Claimant's Brief at 3; Blake, 24 BLR at 1-113.
In addition, we disagree that the ALJ's admission of the Lebanon Internal Medicine records at Employer's Exhibits 3 through 5 was an abuse of discretion "violative" of 20 C.F.R. §725.414(a). The regulations provide that "[n]otwithstanding the [evidentiary] limitations" of 20 C.F.R. §725.414(a)(2), (3), "any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, may be received into evidence." 20 C.F.R. §725.414(a)(4) (emphasis added). Claimant does not contend that the Lebanon Internal Medicine records do not reflect medical treatment, but argues the treatment was not for a pulmonary disease. Claimant's Brief at 3. Claimant, however, does not address the ALJ's determination that the records pertain to treatment of a related disease.
The records note treatment following hospital admissions related to the Miner's chronic kidney disease. Employer's Exhibits 3-5. The ALJ agreed with Employer's position that the records constituted treatment of a related disease, given Dr. DuPont's explanation that the Miner's kidney disease affected his respiratory condition. 2021 Hearing Transcript at 17-19; Employer's Exhibit 1. We see no abuse of discretion in the ALJ's decision to admit this evidence as constituting medical treatment of a pulmonary or related disease. 20 C.F.R. §725.414(a)(4); Blake, 24 BLR at 1-113.
Invocation of the Section 411(c)(4) Presumption-Length of Coal Mine Employment
To invoke the Section 411(c)(4) presumption in either the miner's or survivor's claim, Claimant must establish the Miner worked at least fifteen years in underground coal mines or "substantially similar" surface coal mine employment and had a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305(b)(1)(i).
Claimant bears the burden to establish the number of years the Miner worked in coal mine employment. See Kephart v. Director OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1-710-11 (1985). The Board will uphold an ALJ's determination if it is based on a...
To continue reading
Request your trial