Duncan v. Straight Creek Coal Resources

• Decision Date: 24 April 2017
• Docket Number: BRB 16-0327 BLA,16-0328 BLA
• Parties: JOANNA DUNCAN (Widow of and on behalf of RAYMOND DUNCAN) Claimant-Respondent v. STRAIGHT CREEK COAL RESOURCES and ZURICH AMERICAN INSURANCE GROUP Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
• Court: Court of Appeals of Black Lung Complaints

JOANNA DUNCAN (Widow of and on behalf of RAYMOND DUNCAN) Claimant-Respondent v. STRAIGHT CREEK COAL RESOURCES and ZURICH AMERICAN INSURANCE GROUP Employer/Carrier- Petitioners

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB Nos. 16-0327 BLA, 16-0328 BLA

Court of Appeals of Black Lung

April 24, 2017

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits of Scott R Morris, Administrative Law Judge United States Department of Labor.

Cheryl L. Intravaia (Feirich/Mager/Green/Ryan), Carbondale Illinois, for employer/carrier.

Ann Marie Scarpino (Nicholas C. Geale, Acting Solicitor of Labor Maia Fisher, 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: HALL, Chief Administrative Appeals Judge, GILLIGAN and ROLFE, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

Employer/carrier (employer) appeals the Decision and Order Awarding Benefits (2010-BLA-05560, 2012-BLA-05573) of Administrative Law Judge Scott R. Morris, rendered on a miner's claim^[1] and a survivor's claim^[2] filed pursuant to provisions of the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2012) (the Act). In the miner's claim, the administrative law judge determined that the claim was timely filed and found that the miner had over fifteen years of coal mine employment, either underground or in conditions substantially similar to those in an underground mine. The parties stipulated that the miner had a totally disabling respiratory impairment at 20 C.F.R. §718.204(b)(2). Therefore, the administrative law judge invoked the rebuttable presumption of total disability due to pneumoconiosis set forth in Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2012).^[3] The administrative law judge further found that employer did not rebut the presumption and awarded benefits accordingly. Based on the award of benefits in the miner's claim, the administrative law judge determined that claimant is automatically entitled to survivor's benefits pursuant to Section 422(l) of the Act, 30 U.S.C. §932(l) (2012).^[4]

On appeal, employer argues that the administrative law judge erred in finding that the miner's claim was timely filed and that the miner's above-ground coal mine employment was substantially similar to his underground coal mine employment. Consequently, employer asserts that the administrative law judge erred in finding that claimant invoked the rebuttable presumption at Section 411(c)(4). Employer also contends that the administrative law judge erred in finding that it did not rebut the presumed existence of legal pneumoconiosis and the presumed causal connection between pneumoconiosis and the miner's total disability. Claimant has not filed a response brief in this appeal. The Director, Office of Workers' Compensation Programs (the Director), filed a limited brief, indicating that the administrative law judge applied the appropriate legal standard in assessing whether the miner's above-ground coal mine employment occurred in conditions substantially similar to those in underground mining. The Director further maintains that the administrative law judge permissibly rejected Dr. Westerfield's opinion concerning rebuttal of the presumed existence of legal pneumoconiosis as inconsistent with the regulations.^[5]

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.^[6] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

I. The Miner's Claim

A. Timeliness of the Claim

Pursuant to Section 422(f) of the Act, “[a]ny claim for benefits by a miner... shall be filed within three years after... a medical determination of total disability due to pneumoconiosis....” 30 U.S.C. §932(f). The implementing regulation, set forth at 20 C.F.R. §725.308, 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). To rebut the presumption of timeliness, employer must show, by a preponderance of the evidence, that the claim was filed more than three years after a medical determination of total disability due to pneumoconiosis was communicated to the miner. 30 U.S.C. §932(f); 20 C.F.R. §725.308(a); see Peabody Coal Co. v. Director, OWCP [Brigance], 718 F.3d 590, 594-95, 25 BLR 2-273, 2-282 (6th Cir. 2013); Tennessee Consol. Coal Co. v. Kirk, 264 F.3d 602, 607, 22 BLR 2-288, 2-296 (6th Cir. 2001). In the current case, the administrative law judge found that employer did not meet its burden of rebutting the presumption that the miner timely filed his claim for benefits. Decision and Order at 6-7.

Relying on claimant's testimony at the hearing, employer argues that although claimant was unsure of the actual date that a medical determination of total disability due to pneumoconiosis was communicated to the miner, either date she provided, 1997 or 2000, would be more than three years before the miner filed his claim for benefits in 2009. Employer asserts that the administrative law judge erred in relying on the miner's medical records as evidence that it failed to rebut the presumption of timeliness because there is no requirement that the medical determination appear in the record. Employer's allegations of error do not have merit.

At the hearing, the following exchange occurred between claimant, the administrative law judge, and employer's counsel:

Judge Morris: All right. Did any of the doctors to your knowledge tell him that he was totally disabled because he had black lung?

Claimant: Yes, the [Veteran's Administration] would tell him and Dr. C.A. Moore would tell him that.

Judge Morris: And when did that occur?

Claimant: Before we got married, probably I'm trying to think, probably in 2000.

...

Judge Morris: Okay. Were you present when the doctor told him he was totally disabled because of black lung?

Claimant: Yes, Dr. C.A. Moore would tell us. They didn't diagnose him as totally disabled with the black lung. He was totally disabled because of his knee that he got ---

Judge Morris: So, he had other problems besides his ---

Claimant: Yes, yes. It was not just that. Like I said, they said it was a combination of everything.

Judge Morris: Okay. So, my specific question is did any doctor tell you that he was totally disabled because of ---

Claimant: No, not because of that, no.

...

[On cross-examination by employer's counsel:]

Employer's counsel: You said it was 1997, the first doctor who told you that [the miner] was totally disabled and that involved his leg. Do you recall the first time a doctor told you that he was totally disabled due to pneumoconiosis?

Claimant: I can't think of the year, honey. He was seeing Dr. C.A. Moore.

Employer's counsel: Was that before you were married?

Claimant: Yes.

Employer's counsel: And you were married in 2009. Do you have any idea how many years before it might have been?

Claimant: Probably four or five years.

Judge Morris: Now, are you guessing or do you know?

Claimant: That's what I'm saying. I don't know. I can't ---

Judge Morris: It's an important question so ---

Claimant: No, I can't tell you. I don't know. I don't know the date. It's in Dr. C.A. Moore's records.

Hearing Transcript at 18-20.

The administrative law judge reviewed claimant's statements at the hearing and permissibly found that they were insufficient to rebut the presumption that the miner's 2009 claim was timely filed because they “are equivocal at best, ” given that claimant repeatedly indicated that she was not sure when the miner was told that he was totally disabled due to pneumoconiosis. Decision and Order at 6; see Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989); Worley v. Blue Diamond Coal Co., 12 BLR 1-20, 1-22 (1988). In addition, contrary to employer's allegation, the administrative law judge did not indicate that the medical determination of total disability due to pneumoconiosis must appear in the record. Rather, the administrative law judge reviewed the treatment records to determine if they contained the required medical determination, particularly in light of claimant's statement that the determination would be in Dr. Moore's records. Decision and Order at 6; Hearing Transcript at 20. The administrative law judge acknowledged employer's concession in its brief that Dr. Moore's March 17, 2003 treatment note diagnosing total disability did not identify pneumoconiosis as a cause of the total disability. Decision and Order at 6; Employer's Exhibit 15 at 356-59; see also Employer's Post-Hearing Brief at 30. The administrative law judge found that the only treatment note by Dr. Moore in the record that qualifies as a medical determination of total disability due to pneumoconiosis is dated April 12, 2011, which post-dates the filing of the miner's 2009 claim.^[7] Decision and Order at 6; Employer's Exhibit 16.

Aside from claimant's testimony, which the administrative law judge determined was equivocal, employer has not identified any evidence that the miner received a medical determination of total disability due to pneumoconiosis more than three years prior to filing his claim for benefits. We therefore affirm the administrative law judge's finding that employer did not rebut the 20 C.F.R. §725.308 presumption that the miner timely filed...