Hall v. Dominion Coal Corp.
| Decision Date | 10 October 2001 |
| Docket Number | BRB 00-1083 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ROY R. HALL Claimant-Respondent v. DOMINION 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UNPUBLISHED OPINION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 Awarding Benefits On Request for Modification of Daniel F. Sutton, Administrative Law Judge United States Department of Labor.
Roy R Hall, Big Rock, Virginia, pro se.
Ronald E. Gilbertson (Bell, Boyd & Lloyd), Washington, D.C., for employer.
Sarah M. Hurley (Howard M. Radzely, Acting Solicitor of Labor Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Richard A. Seid and 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, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER.
Employer appeals the Decision and Order Awarding Benefits On Request for Modification (99-BLA-1340) of Administrative Law Judge Daniel F. Sutton on a claim 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).[1] This case is before the Board for the second time.[2] The administrative law judge permissibly considered claimant's request for modification on the record, based on the parties' waiver of their right to a hearing, see 20 C.F.R §725.461(a); Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425, 429, 21 BLR 2-495, 2-504 (6th Cir. 1998); Cunningham v. Island Creek Coal Co., 144 F.3d 388, 390, 21 BLR 2-284, 2-388-389 (6th Cir. 1998); Pukas v. Schuylkill Contracting Co., 22 BLR 1-69 (2000). Initially, the administrative law judge found that no mistake in a determination of fact was established pursuant to 20 C.F.R. §725.310 (2000), see also 20 C.F.R. §725.2(c), in Judge Neusner's finding that the evidence, before him, did not establish total disability pursuant to 20 C.F.R. §718.204(c)(2000), as revised at 20 C.F.R. §718.204(b)(2), see Director's Exhibits 42, 52, 55. Next, the administrative law judge considered whether the newly submitted evidence of record on modification established total disability and, therefore, a change in conditions pursuant to Section 725.310 (2000), see also 20 C.F.R. §725.2(c). The administrative law judge found that the newly submitted x-ray and CT scan evidence was insufficient to establish the existence of complicated pneumoconiosis and therefore, entitlement to the irrebuttable presumption of totally disabling pneumoconiosis pursuant to Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), as implemented by 20 C.F.R. §718.304, but that the relevant newly submitted blood gas study and medical opinion evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(2000), as revised at 20 C.F.R. §718.204(b)(2)(i)-(iv), and, therefore, a change in conditions. The administrative law judge, therefore, considered all the evidence of record and found that the existence of pneumoconiosis was established, see 20 C.F.R. §718.202(a), that pneumoconiosis arising out of coal mine employment was established pursuant to 20 C.F.R. §718.203(b) and that total disability due to pneumoconiosis was established by the medical opinion evidence, see 20 C.F.R. §718.204(c), formerly 20 C.F.R. §718.204(b)(2000). Accordingly, benefits were awarded.
On appeal, employer contends that the administrative law judge erred in finding that the newly submitted blood gas study and medical opinion evidence was sufficient to establish total disability and, therefore, a change in conditions. Claimant, without the assistance of counsel, responds, urging that the administrative law judge's Decision and Order Awarding Benefits On Request for Modification be affirmed. Alternatively, claimant contends that the administrative law judge erred in finding that claimant failed to establish the existence of complicated pneumoconiosis and, therefore, entitlement to the irrebuttable presumption of totally disabling pneumoconiosis, and erred in finding that no mistake in a determination of fact had been made in Judge Neusner's prior determination that the evidence before him, did not establish total disability. Claimant also contends that the administrative law judge erred in excluding evidence that claimant offered for the purpose of discrediting the newly submitted medical opinion and pulmonary function study of Dr. Castle, which had been submitted by employer, see Employer's Exhibit 1, i.e., evidence relating to claimant's allegation that a technician utilized by Dr. Castle lacked an appropriate license. The Director, Office of Workers' Compensation Programs (the Director), as a party-in-interest, also responds, urging the Board to affirm the administrative law judge's finding that the newly submitted blood gas study and medical opinion evidence was sufficient to establish total disability and, therefore, a change in conditions. Thus, the Director urges the Board to affirm the administrative law judge's award of benefits, even though the Director also contends that the administrative law judge erred in finding that no mistake in a determination of fact was established.
In an appeal filed by a claimant without the aid of counsel, the Board will consider the issue raised to be whether the Decision and Order below is supported by substantial evidence, see Hodges v. BethEnergy Mines, Inc., 18 BLR 1-85 (1994); McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1985). If the findings of fact and conclusions of law of the administrative law judge are supported by substantial evidence, are rational, and are consistent with applicable law, they are binding upon this Board and may not be disturbed. 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).[3]
Pursuant to Section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §922, as incorporated into the Act by 30 U.S.C. §932(a) and as implemented by 20 C.F.R. §725.310 (2000); see also 20 C.F.R. §725.2(c), a party may request modification of a denial on the grounds of a change in conditions or because of a mistake in a determination of fact. In considering whether a claimant has established a change in conditions, an administrative law judge must consider all of the newly submitted evidence, in conjunction with the previously submitted evidence, to determine if the new evidence is sufficient to establish at least one of the elements of entitlement which defeated entitlement in the prior decision, see Nataloni v. Director, OWCP, 17 BLR 1-82 (1993). The United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, [4]has held, however, that if a claimant merely alleges that the ultimate fact was wrongly decided, the administrative law judge may, if he chooses, accept this contention and modify the final order accordingly (i.e., "there is no need for a smoking gun factual error, changed conditions or startling new evidence"), see Consolidation Coal Corp. v. Worrell, 27 F.3d 227, 230, 18 BLR 2-290, 2-996 (6th Cir. 1994), quoting Jessee v. Director, OWCP, 5 F.3d 723, 725, 18 BLR 2-26-28 (4th Cir. 1993).
In order to establish entitlement to benefits under Part 718 in this living miner's claim, it must be established that claimant suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3; 718.202; 718.203; 718.204; Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986). Failure to prove any one of these elements precludes entitlement, id. Pursuant to Section 718.204, the administrative law judge must weigh all relevant evidence, like and unlike, with the burden on claimant to establish total respiratory disability by a preponderance of the evidence, see Budash v. Bethlehem Mines Corp., 16 BLR 1-27 (1991)(en banc); Fields v. Island Creek Coal Co., 10 BLR 19 (1987); Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195 (1986).[5]
Initially, the administrative law judge found that the newly submitted x-ray and CT scan evidence from equally qualified physicians, who were both board-certified radiologists and B-readers, [6]was conflicting regarding the existence of complicated pneumoconiosis. Decision and Order at 7-8. The administrative law judge found that the newly submitted x-ray evidence raised serious doubt and/or was inconclusive as to the existence of complicated pneumoconiosis, and that the record provided no objective basis for favoring one set of x-ray interpretations over the other. See Director's Exhibits 56-58, 62, 65, 68, 70; Claimant's Exhibits 2, 4; Employer's Exhibits 1-3, 5, 7, 9. Similarly, the administrative law judge found the newly submitted CT scan evidence from equally qualified radiologists was conflicting and provided no objective basis for crediting one interpretation over the other. See Director's Exhibit 70, 74-75; Claimant's Exhibit 3. Consequently, the administrative law judge found that the existence of complicated pneumoconiosis was not established by a preponderance of the relevant newly submitted x-ray and CT scan evidence and, therefore, that claimant was not entitled to the irrebuttable presumption of totally disabling pneumoconiosis.
In his response brief, claimant contends that the record does provide a basis for discrediting those physicians who did not diagnose complicated...
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