Green v. Island Creek Coal Co.
| Decision Date | 16 December 2009 |
| Docket Number | BRB 09-0329 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | WILLIAM GREEN Claimant-Respondent v. ISLAND CREEK COAL COMPANY, C/O ACORDIA EMPLOYERS SERVICE Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Alice M Craft, Administrative Law Judge, United States Department of Labor.
Douglas A. Smoot and Kathy L. Snyder (Jackson Kelly PLLC) Morgantown, West Virginia, for employer.
Michelle S. Gerdano (Deborah Greenfield, Acting Deputy Solicitor; Rae Ellen Frank 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 and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order Awarding Benefits (2007-BLA-5617) of Administrative Law Judge Alice M. Craft rendered on a request for modification of the denial of a subsequent claim [1]filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). Upon stipulation of the parties, [2]the administrative law judge credited claimant with sixteen years of coal mine employment, and adjudicated this subsequent claim, filed on November 21, 2005, pursuant to the regulatory provisions at 20 C.F.R. Parts 718 and 725. The administrative law judge found that claimant's current claimant was timely filed and that claimant established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d), as the newly submitted evidence was sufficient to establish total respiratory disability pursuant to 20 C.F.R. §718.204(b). Considering the entire record, the administrative law judge found the evidence sufficient to establish that claimant was totally disabled from legal pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), 718.204(b), (c). Accordingly, benefits were awarded.
On appeal, employer contends that the administrative law judge erred in finding that the current claim was timely filed. Employer also challenges the administrative law judge's weighing of the evidence on the merits of the claim on the issues of the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(4), 718.203, and disability causation at 20 C.F.R. §718.204(c). The Director, Office of Workers' Compensation Programs, has filed a limited response asserting that the miner's claim was timely filed. [3]
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. [4] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
After consideration of the administrative law judge's Decision and Order, the arguments raised on appeal, and the evidence of record, we conclude that the administrative law judge's Decision and Order is supported by substantial evidence, consistent with applicable law, and contains no reversible error. Turning first to the issue of timeliness, the Black Lung Benefits Act requires that a living miner's claim for benefits be filed within three years after a medical determination of total disability due to pneumoconiosis has been communicated to the miner or a party responsible for the care of the miner. 30 U.S.C. §932(f); [5]20 C.F.R. §725.308(a); [6]see Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-228 (6th Cir. 2001). In order to trigger the running of the three-year statute of limitations, the medical determination must be a reasoned opinion of a medical professional, and must not have been discredited or found to be outweighed by contrary evidence in a prior adjudication. Arch of Kentucky, Inc. v. Director, OWCP [Hatfield], 556 F.3d 472, 24 BLR 2-135 (6th Cir. 2009); Brigance v. Peabody Coal Co., 23 BLR 1-170, 1-175 (2006)(en banc); Sturgill v. Bell County Coal Co., 23 BLR 1-159, 1-166 (2006)(en banc). Additionally, the regulation provides a rebuttable presumption that all claims are timely filed. 20 C.F.R. §725.308(c). The question of whether the evidence is sufficient to establish rebuttal of the presumption of timely filing of a claim pursuant to 20 C.F.R. §725.308(a), (c) involves factual findings that are appropriately made by the administrative law judge. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc).
In the present case, the administrative law judge rationally concluded that claimant's testimony, and claimant's 2002 Social Security Administration (SSA) award of disability benefits, [7]were insufficient to rebut the presumption of timeliness. Decision and Order 6-8. The administrative law judge acted within her discretion in finding that claimant's treatment for breathing problems in 1983, and claimant's ambiguous testimony that he was told by his treating physician that he had black lung or that he was disabled by knee and breathing problems, did not constitute sufficient evidence to support employer's burden on rebuttal. Decision and Order at 7; Hearing Transcript at 35; see Brigance, 23 BLR at 1-175; Sturgill, 23 BLR at 1-166. Likewise, claimant's SSA award of disability benefits in 2002 is insufficient to start the running of the statute of limitations, as the SSA claim was adjudicated under a different standard than the current claim, and the award constitutes a legal determination, rather than a medical determination of disability, as required by Section 725.308. See Kirk, 264 F.3d at 607, 22 BLR at 2-297; Sturgill, 23 BLR at 1-166; Decision and Order at 7. Furthermore, contrary to employer's argument, reference to Dr. Bell's 1989 medical findings [8]in the body of the SSA award does not establish that Dr. Bell found claimant to be totally disabled in 1989, or that such an opinion was communicated to claimant. See Ken Lick Coal Co. v. Director, OWCP [Lacy], No. 06-4512 (unpub.); W.C. [Cook] v. Benham Coal, Inc., 24 BLR 1-50, 1-53 (2008); Decision and Order at 7. Accordingly, we affirm, as supported by substantial evidence, the administrative law judge's finding that employer failed to rebut the presumption of timeliness pursuant to 20 C.F.R. §725.308.
Employer next challenges the administrative law judge's weighing of the medical opinion evidence at Section 718.202(a)(4) contending that the administrative law judge's crediting of the opinions of Drs. White and Simpao, over the contrary opinions of Drs. Repsher, Selby, and Castle, is irrational, not supported by substantial evidence, and contrary to law. Employer's arguments are without merit. The administrative law judge accurately summarized the conflicting medical opinions of record, noting their underlying documentation, the relative qualifications of the physicians, and the physicians' explanations for their respective conclusions. Decision and Order at 18-27, 33-37. The administrative law judge acted within her discretion in finding that Dr. Simpao's diagnosis of a severe obstructive and moderate restrictive airway disease significantly related to smoking and aggravated by claimant's sixteen years of coal mine employment, was documented and reasoned, and entitled to probative weight. Decision and Order at 34-35; Director's Exhibits 1, 14, 16, 41; see Peabody Coal Co. v. Groves, 277 F.3d 829, 22 BLR 2-320, 2-330 (6th Cir. 2002), cert. denied, 537 U.S. 1147 (2003) citing Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983). In evaluating the opinion of Dr. White, claimant's treating physician, pursuant to the factors set forth at 20 C.F.R. §718.104(d), the administrative law judge properly considered the nature and extent of the doctor's treatment of claimant, and permissibly determined that Dr. White's diagnosis of legal pneumoconiosis, based on clinical history, medical examination, and regular observation and treatment of claimant since 1995, was documented and reasoned. Decision and Order at 34-35; Employer's Exhibit 3; Director's Exhibits 17, 18. In light of the other relevant evidence and the record as a whole, the administrative law judge permissibly accorded the opinion great weight. Decision and Order at 35; see Eastover Mining Co. v. Williams, 338 F.3d 501, 22 BLR 2-625 (6th Cir. 2003); Jericol Mining, Inc. v. Napier, 301 F.3d 703, 22 BLR 2-537 (6th Cir. 2002); 20 C.F.R. §718.104(d). The administrative law judge rationally accorded little weight to Dr. Selby's opinion, that claimant's obstructive lung disease was caused by smoking, asthma, obesity, and a heart condition, as she found that the physician's statement, that “the coalmine was protective of claimant's lungs, ” was contrary to congressional findings. Employer's Exhibits 1, 5; see Roberts & Schaefer Co. v. Director, OWCP [Williams], 400 F.3d 992, 23 BLR 2-302 (7th Cir. 2005). Further, the administrative law judge found that Dr. Selby failed to offer any reason for ruling out coal dust exposure as a contributing cause of claimant's obstructive respiratory impairment. Decision and Order at 37; see Cornett v. Benham Coal, Inc., 227 F.3d 569, 22 BLR 2-107 (6th Cir. 1998). The administrative law judge also permissibly found that Dr. Repsher's opinion, that claimant did not have legal pneumoconiosis, but had smoking-related chronic obstructive pulmonary disease and centrilobular emphysema, was not well-reasoned, as the physician's analysis was premised on medical and...
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