Estate of Lester v. Consolidation Coal Co., BRB 20-0182 BLA

Decision Date11 August 2021
Docket NumberBRB 20-0182 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Awarding Benefits of Theresa C Timlin, Administrative Law Judge, United States Department of Labor.

Samuel B. Petsonk, Beckley, West Virginia, for Claimant.

Joseph D. Halbert and Crystal L. Moore (Shelton, Branham &amp Halbert, PLLC), Lexington, Kentucky, for Employer and its Carrier.

Before: BUZZARD, GRESH, and JONES, Administrative Appeals Judges.



Employer and its Carrier (Employer) appeal Administrative Law Judge Theresa C. Timlin's Decision and Order Awarding Benefits (2018-BLA-06063) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves a survivor's claim filed on December 28, 2015.[1]

The administrative law judge credited the Miner with at least ten years of coal mine employment. She found Claimant established complicated pneumoconiosis and thus invoked the irrebuttable presumption that the Miner's death was due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C §921(c)(3); 20 C.F.R. §718.304.

On appeal, Employer contends the administrative law judge erred in finding the Miner had complicated pneumoconiosis. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a substantive response.[2]

The Benefits Review Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[3] 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).

Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner's death was due to pneumoconiosis if he suffered from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. In determining whether Claimant has invoked the irrebuttable presumption, the administrative law judge must consider all evidence relevant to the presence or absence of complicated pneumoconiosis.[4] See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 283 (4th Cir. 2010); E. Assoc. Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 255-56 (4th Cir. 2000); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33 (1991) (en banc).

The administrative law judge found the x-ray and medical opinion evidence established the Miner had complicated pneumoconiosis, 20 C.F.R. §718.304(a), (c), and noted the record did not contain any biopsy or autopsy evidence, 20 C.F.R. §718.304(b). Decision and Order at 4-12. Weighing all the evidence together, she therefore determined Claimant invoked the irrebuttable presumption that the Miner's death was due to pneumoconiosis. Id. at 12.

Employer argues the administrative law judge failed to consider all relevant evidence of record and erred in weighing the x-ray and medical opinion evidence. Employer's Brief at 4-9. We disagree.

20 C.F.R. §718.304(a): X-Ray Evidence

The administrative law judge considered five interpretations of three x-rays dated August 6, 1984, April 12, 2001, and March 18, 2002. Decision and Order at 5-7; Director's Exhibit 1; Claimant's Exhibits 1, 2, 10; Employer's Exhibit 1. She found all the readers are dually qualified as Board-certified radiologists and B readers. Decision and Order at 5. Dr. Tarver interpreted the August 6, 1984 and April 12, 2001 x-rays as positive for simple and complicated pneumoconiosis with Category A large opacities. Claimant's Exhibits 1, 2. Dr. Wiot interpreted the same x-rays as positive for simple pneumoconiosis but did not identify any large opacities. Director's Exhibit 1; Employer's Exhibit 1. Dr. Smith interpreted the March 18, 2002 x-ray as positive for simple and complicated pneumoconiosis with Category A large opacities. Claimant's Exhibit 10. Employer was unable to submit a rebuttal reading of this x-ray because the film was lost and therefore unavailable for rereading. Hearing Tr. at 11, 15-17. Although the record of the Miner's prior disability claims contained additional x-rays, the administrative law judge did not consider them in weighing the x-ray evidence, explaining that "to do so would violate the evidentiary limitations at [20 C.F.R.] §725.414(a)" because both parties "submitted their allotted two affirmative X-rays." Decision and Order at 12. Because the readings of two x-rays were in equipoise and the most recent x-ray was positive for complicated pneumoconiosis, the administrative law judge found Claimant established the Miner had complicated pneumoconiosis at 20 C.F.R. §718.304(a). Id.; see Sea "B" Mining Co. v. Addison, 831 F.3d 244, 256-57 (4th Cir. 2016); Adkins v. Director, OWCP, 958 F.2d 49, 52-53 (4th Cir. 1992).

Credentials of Dr. Smith

Employer asserts the administrative law judge erred in crediting Dr. Smith's positive reading of the March 18, 2002 x-ray because his credentials are unknown, as his curriculum vitae is not part of the record. Specifically, it alleges she erred in "assuming" Dr. Smith was a B reader at the time he read the x-ray. We disagree. The administrative law judge accurately noted Dr. Smith represented on the x-ray ILO form that he is a certified B reader and included a B reader number on the signed narrative accompanying that ILO form. Decision and Order at 5 n.6. The administrative law judge also observed that the National Institute for Occupational Safety and Health identified Dr. Smith as a B reader on January 9, 2020, when the administrative law judge last accessed the list of current B readers on its website. Id. Although the administrative law judge acknowledged that Dr. Smith's B reader status in January 2020 did not establish he was a B reader in 2002, she permissibly found this information supported his notation on the ILO form that he was a B reader. Id. Because the administrative law judge acted within her discretion in finding Dr. Smith qualified as a B reader, we affirm her determination. United States Steel Mining Co. v. Director, OWCP [Jarrell], 187 F.3d 384, 389 (4th Cir. 1999); Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997); Decision and Order at 5 n.6. We also affirm, as unchallenged, the administrative law judge's finding that Dr. Smith is a Board-certified radiologist. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 5-6 n.6 (citing Director's Exhibit 33, the district director's Proposed Decision and Order identifying Dr. Smith as a Board-certified radiologist)); Claimant's Exhibit 10 (narrative x-ray findings completed on Associated Radiologists, Inc. letterhead).

X-Rays in Record of Miner's Prior Claims

Employer also contends the administrative law judge erred in failing to consider the x-ray readings contained in the record of the Miner's prior claims as part of the evidentiary record in the survivor's claim. Employer argues the Act's implementing regulations require that the record in a prior claim be merged with the record in a subsequent claim and considered by the administrative law judge. Employer's Brief at 5 (citing 20 C.F.R. §§725.309(c)(2) 725.456(d)). We disagree.

Although the regulation at 20 C.F.R. §725.309(c)(2) requires that "evidence submitted in connection with any prior claim must be made a part of the record in the subsequent claim," this regulation applies only to subsequent claims filed by the same claimant. Employer's Brief at 5; see Earl Patton Coal Co. v. Patton, 848 F.2d 668, 672 (6th Cir. 1988) (careful reading of 20 C.F.R. §725.309(c) indicates it does not cover separate claims filed on behalf of the miner's estate and by an eligible survivor in her own right and on her own behalf). It does not apply to merge evidence in a miner's claim for disability benefits with a separately filed survivor's claim for death benefits, as the claims have distinct standards of proof and processing procedures under the Act. See Patton, 848 F.2d at 672; see also, e.g., 30 U.S.C. §901(a) (purpose of the Act is to provide benefits "to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to the disease"); compare 20 C.F.R. §718.204 (criteria to establish disability in a miner's claim), with 20 C.F.R. §718.205 (criteria to establish a miner's death was due to pneumoconiosis in a survivor's claim); 20 C.F.R. §725.520 (providing the computation of benefits for living miner's and survivor's claims).

The Miner's spouse was not - and could not be - a party to the Miner's prior claims for disability benefits. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 221 (4th Cir. 2006) (unlike widows, "spouses of living miners . are not entitled to seek benefits under the Act"). As she filed this survivor's claim for death benefits on her own behalf after the Miner's death, her claim is wholly distinct and separate from the Miner's claims, and 20 C.F.R. §725.309(c)(2) does not automatically make the records from the Miner's claim part of this...

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