Freeman v. Arch of West Virginia
| Decision Date | 20 February 2015 |
| Docket Number | BRB 14-0252 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ERMIL A. FREEMAN Claimant-Respondents v. ARCH OF WEST VIRGINIA/ APOGEE COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand Awarding Benefits of Richard A. Morgan, Administrative Law Judge, United States Department of Labor.
S.F Raymond Smith (David Huffman Law Services), Parkersburg, West Virginia, for claimant.
George E. Roeder, III and Kathy L. Snyder (Jackson Kelly PLLC) Morgantown, West Virginia, for employer.
Jeffrey S. Goldberg (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: HALL, Acting Chief Administrative Appeals Judge, McGRANERY and BUZZARD, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order on Remand Awarding Benefits (2011-BLA-5069) of Administrative Law Judge Richard A.
Morgan rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012)(the Act). This case involves a subsequent claim filed on September 22, 2005, and is before the Board for the third time.[1]
As the Board summarized in its last decision, in 2008 Administrative Law Judge Adele Higgins Odegard found that claimant established a change in an applicable condition of entitlement under 20 C.F.R. §725.309, by proving that he is totally disabled by a respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). However, Judge Odegard denied the claim on its merits, because she found that claimant failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a). Freeman v. Arch of W.Va./Apogee Coal Co., BRB Nos. 12-0173 BLA/A, slip op. at 2 (Jan. 17, 2013)(unpub.)(Boggs, J., concurring). Following the Board's September 29, 2009 affirmance of Judge Odegard's decision denying benefits, claimant timely sought modification pursuant to 20 C.F.R. §725.310.[2] Id.
Administrative Law Judge Richard A. Morgan (the administrative law judge) initially denied modification in a Decision and Order issued on December 12, 2011. The administrative law judge found that claimant established more than fifteen years of underground coal mine employment[3] and that he is totally disabled under 20 C.F.R. §718.204(b)(2), but did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a). The administrative law judge determined that because claimant could not establish the existence of pneumoconiosis, he was “not entitled to the benefit of the rebuttable presumption” of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4).[4] 2011 Decision and Order at 24. Accordingly, the administrative law judge denied benefits.
Upon review of claimant's appeal, the Board vacated the denial of benefits. Specifically, the Board held that, because this claim was filed after January 1, 2005 and was pending on March 23, 2010, and it was undisputed that claimant established more than fifteen years of underground coal mine employment and that he is totally disabled, the administrative law judge erred in determining that claimant was not entitled to the benefit of the Section 411(c)(4) presumption of total disability due to pneumoconiosis. Freeman, slip op. at 4-6. Accordingly, the Board remanded the case for the administrative law judge to consider the claim pursuant to Section 411(c)(4), and to reconsider claimant's request for modification.[5]
On remand, the administrative law judge determined that claimant invoked the Section 411(c)(4) presumption of total disability due to pneumoconiosis, and that employer failed to rebut the presumption. Finding that claimant established a change in conditions pursuant to 20 C.F.R. §725.310, [6] the administrative law judge granted modification, and awarded benefits.
On appeal, employer contends that the administrative law judge erred in finding that employer failed to rebut the Section 411(c)(4) presumption.[7] Claimant and the Director, Office of Workers' Compensation Programs (the Director), respond in support of the award of benefits. Employer filed a reply brief, reiterating its contentions on appeal.[8]
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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
Because claimant invoked the Section 411(c)(4) presumption of total disability due to pneumoconiosis, the burden shifted to employer to rebut the presumption by establishing that claimant does not have pneumoconiosis, or by establishing that claimant's pulmonary or respiratory impairment “did not arise out of, or in connection with, ” his coal mine employment. 30 U.S.C. §921(c)(4). Under the implementing regulation, employer may rebut the presumption by establishing that claimant does not have either legal or clinical pneumoconiosis, [9] 20 C.F.R. §718.305(d)(1)(i), or by establishing that “no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis as defined in §718.201.” 20 C.F.R. §718.305(d)(1)(ii). The administrative law judge found that employer failed to establish rebuttal by either method.
In evaluating whether employer established that claimant does not have legal pneumoconiosis, the administrative law judge considered the medical opinions of Drs. Crisalli and Zaldivar.[10] Drs. Crisalli and Zaldivar opined that claimant does not have legal pneumoconiosis, but suffers from severe airway obstruction caused by emphysema due to smoking, and by asthma that is unrelated to coal mine dust exposure. Director's Exhibits 31, 47, 57, 58.
The administrative law judge discounted the opinions of Drs. Crisalli and Zaldivar. Initially, he found that the physicians' reliance on the partial reversibility of claimant's impairment after bronchodilator administration did not necessarily exclude coal mine dust exposure as a contributing factor in claimant's residual, disabling impairment. Decision and Order on Remand at 13. Additionally, the administrative law judge discounted the physicians' opinions, in part, because he found their views that coal mine dust exposure does not cause asthma or bullous emphysema to be in conflict with the principles underlying the regulations and set forth in the preamble to the 2001 regulatory revisions. Id. Finally, the administrative law judge discounted Dr. Crisalli's explanation, that coal mine dust exposure was not a cause of claimant's emphysema because claimant left coal mining in 1982 but continued to smoke until 2005; the administrative law judge determined that this explanation was “not in accord with the premise” that pneumoconiosis may be latent and progressive. Id. at 14. Therefore, the administrative law judge stated that he gave “less credit” to the opinions of Drs. Crisalli and Zaldivar, and he concluded that employer “failed to rule out the existence of . . . legal coal workers' pneumoconiosis.” Id. at 12, 14.
Employer contends that a remand is required because the administrative law judge applied an improper standard by stating that employer did not rule out the existence of legal pneumoconiosis. Employer's Brief at 8-9. A review of the administrative law judge's Decision and Order as a whole reflects that, before beginning his analysis of the medical evidence, the administrative law judge correctly stated that employer bore the burden of “establishing . . . that: (1) the miner does not have pneumoconiosis, ” and accurately stated that it was employer's “burden to affirmatively show that the miner does not suffer from pneumoconiosis . . . .” Decision and Order on Remand at 5; see 20 C.F.R. §718.305(d)(1)(i). Moreover, the administrative law judge did not reject the opinions of Drs. Crisalli and Zaldivar as insufficient to meet a “rule out” standard. Rather, he found that their opinions on the existence of legal pneumoconiosis were not credible, for the reasons he gave after considering the physicians' explanations. Decision and Order on Remand at 13-14. Because the administrative law judge correctly stated employer's burden to establish that claimant does not have pneumoconiosis and found that employer's physicians' opinions were not credible, we reject employer's argument that he applied an improper standard. For the same reasons, even if, as employer contends, the administrative law judge's brief, concluding statement that employer did not rule out legal pneumoconiosis was error, it was harmless. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1985).
Employer argues that the administrative law judge did not provide valid reasons for discounting the opinions of Drs. Crisalli and Zaldivar that claimant does not have legal pneumoconiosis. Employer's Brief at 17-22. We disagree.
Initially employer contends that the administrative law judge erred in discounting the opinions of Drs. Crisalli and Zaldivar because the physicians relied on the reversibility of claimant's impairment as a reason for eliminating coal mine dust exposure as a cause. Employer's Brief at 17. Contrary to employer's contention, the administrative law judge concluded, as was within his discretion, that Drs. Crisalli and Zaldivar did not adequately...
To continue reading
Request your trial