Edwards v. Grace Coal Corp.
| Decision Date | 02 July 2012 |
| Docket Number | BRB 10-0681 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | TRULA M. EDWARDS Widow of BILLY J. EDWARDS Claimant-Respondent v. GRACE COAL CORPORATION Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Modification and Benefits of Pamela Lakes Wood, Administrative Law Judge, United States Department of Labor.
Ronald E. Gilbertson (Husch Blackwell LLP), Washington, D.C., for employer.
Helen H. Cox (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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, HALL and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER ON RECONSIDERATION EN BANC
DOLDER, Chief Administrative Appeals Judge:
Employer has filed a timely Motion for Reconsideration En Banc of the Board's Decision and Order in Edwards v. Grace Coal Corp., BRB No. 10-0681 BLA (Aug. 26, 2011) (unpub.). In Edwards, the Board considered employer's appeal of the August 2, 2010 Decision and Order Granting Modification and Benefits of Administrative Law Judge Pamela Lakes Wood, rendered on a survivor's claim, filed on August 6, 2001, pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). [1]
In her Decision and Order Granting Modification and Benefits, the administrative law judge found that the parties had stipulated to the existence of clinical pneumoconiosis at 20 C.F.R. §718.202(a)(1) and that the evidence was sufficient to establish the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4), and that the miner's death was due to pneumoconiosis at 20 C.F.R. §718.205(c). Thus, the administrative law judge found that claimant established a basis for modification, by proving a mistake in a determination of fact, at 20 C.F.R. §725.310, and she awarded benefits.
Employer appealed the award, asserting that the administrative law judge erred in admitting a May 7, 2009 medical/autopsy report by Dr. Green, contained at Claimant's Exhibit 1, and a supplemental report by Dr. Green dated July 15, 2009, contained at Claimant's Exhibit 2, on the ground that the reports were submitted by claimant in excess of the evidentiary limitations at 20 C.F.R. §§725.310 and 725.414. Employer argued that the autopsy report was inadmissible because claimant already submitted an affirmative autopsy report by Dr. Segen, and claimant is not entitled to submit two affirmative autopsy reports. Employer argued that Dr. Green's medical opinion was inadmissible because claimant already reached his full complement of medical reports and because Dr. Green referenced evidence that is not in the record.
On the merits of the claim, employer argued that the administrative law judge erred in failing to address whether granting claimant's modification request was in the interest of justice, and that the administrative law judge erred in not giving res judicata effect to the initial denial of the survivor's claim by Administrative Law Judge Stuart A. Levin, dated April 11, 2007. In addition, employer maintained that the administrative law judge erred in weighing the conflicting medical opinions and in rendering her credibility determinations, as to the issues of the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and death causation at 20 C.F.R. §718.205(c).
In regard to the evidentiary challenge, the Board agreed with employer that Dr. Green's opinion constituted both an autopsy report and a medical report, and had to meet the evidentiary requirements for both types of evidence. Edwards, BRB No. 10-0681 BLA, slip op. at 5-6. The Board concluded, however, that Dr. Green's autopsy report was admissible as a rebuttal autopsy report. Id. The Board explained:
Prior to the hearing, claimant's counsel specifically designated, as affirmative evidence, the March 23, 2001 autopsy report of Dr. Segen, the April 16, 2002 medical report of Dr. Robinette, and the May 7, 2009 medical report of Dr. Green. See Claimant's Black Lung Evidence Summary. The record reveals that employer submitted an affirmative autopsy report by Dr. Naeye dated January 1, 2004. Director's Exhibit 50.
Id. at 5 (emphasis added). The Board agreed with the Director's position that “Dr. Green's review of the autopsy slides is admissible as rebuttal autopsy evidence contradicting Dr. Naeye's interpretation of the tissue slides.” Id. at 6. The Board also concluded that Dr. Green's medical opinion complied with the evidentiary limitations on medical reports and was admissible pursuant to 20 C.F.R. §§725.310 and 725.414. Id. The Board also rejected employer's argument that Dr. Green's opinion was inadmissible, based on employer's contention that Dr. Green cited to evidence that was not of record. Id. at 6-8.
On the merits, the Board rejected employer's contention that the administrative law judge was precluded, based on principles of res judicata, from considering whether a mistake in a determination of fact occurred pursuant to 20 C.F.R. §725.310. Edwards, BRB No. 10-0681 BLA, slip op. at 9 n.9. The Board affirmed the administrative law judge's finding that claimant established a mistake in a determination of fact at 20 C.F.R. §725.310 by proving that the miner's death was due to pneumoconiosis. Id. at 9-13.However, the Board vacated the award of benefits because the administrative law judge did not make a specific finding as to whether granting claimant's modification request would render justice under the Act. Id. at 13.
Employer seeks reconsideration en banc of the Board's decision, asserting that the Board mischaracterized the designations of evidence. Employer asserts that, contrary to the Board's statement, Dr. Naeye's opinion was not proffered as affirmative evidence, but was submitted as a rebuttal autopsy report in response to the report of the autopsy prosector, Dr. Segen. Employer asserts that because Dr. Naeye's report is not affirmative evidence, Dr. Green's report does not constitute an admissible rebuttal autopsy report, as suggested by the Board. Employer asserts that the regulations do not permit claimant to “rebut” employer's rebuttal evidence. Furthermore, employer maintains that claimant is not entitled to submit Dr. Green's report under the evidentiary limitations, insofar as claimant designated the report of the autopsy prosector, Dr. Segen, as her one affirmative autopsy report, and the regulations do not provide for the submission of a second affirmative autopsy report.
Employer's arguments on reconsideration have merit, in part. We agree that the Board misstated that Dr. Naeye's report was specifically proffered as affirmative evidence by employer. Employer did not identify this report as either an affirmative or a rebuttal autopsy report at any hearing held in this case or on its Evidence Summary Form. [2] See Hearing Transcripts dated February 24, 2004 and June 23, 2009; Employer's June 23, 2009 Black Lung Evidence Summary Form. Although employer now characterizes Dr. Naeye's report as an autopsy “rebuttal” report, it did not do so before the administrative law judge. [3] Whether or not Dr. Naeye's report was properly submitted by employer as an autopsy rebuttal report remains a factual issue to be resolved by the administrative law judge. See Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983) (); Clark v. Karst-Robbins Coal Co. 12 BLR 1-149, 1-153 (1989) (en banc).
After further reflection, we conclude that it is necessary to vacate the award of benefits and remand this case for the administrative law judge to resolve the content of the evidentiary record and determine the admissibility of the autopsy reports of Drs. Green and Naeye. Thus, we vacate the administrative law judge's finding that the miner's death was due to legal pneumoconiosis pursuant to 20 C.F.R. §§718.202(a)(4), 718.205(c), and her finding that claimant established a basis for modification by proving a mistake in a determination of fact pursuant to 20 C.F.R. §725.310.
On remand, the administrative law judge must resolve the parties' evidentiary designations in this case, as they relate to the opinions of Drs. Naeye and Green. [4] If the administrative law judge determines on remand that Dr. Green's autopsy report is inadmissible, she must consider whether any portion of Dr. Green's opinion that constitutes a medical report under 20 C.F.R. §725.414 is based on his autopsy review. [5] If the administrative law judge determines that Dr. Green's autopsy report is admissible evidence, the administrative law judge may reinstate her findings at 20 C.F.R. §§718.202(a), 718.205(c) and 725.310. If the evidentiary record is altered on remand, the administrative law judge must render new findings as to claimant's entitlement to benefits.
Moreover, if the administrative law judge awards benefits on remand, she must determine whether a grant of modification would render justice under the Act. [6] The modification of a claim does not automatically flow from a finding that a mistake was made on an earlier determination, and should be made only where doing so will render justice under the Act. Sharpe v. Director, OWCP, 495 F.3d 125, 128, 24 BLR 2-56, 2-66 (4th Cir. 2007); see Banks v. Chi. Grain Trimmers Ass'n, 390 U.S. 459, 464 (1968) ...
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