Hapney v. Peabody Coal Co., BRB 98-0212 BLA
| Decision Date | 18 June 1999 |
| Docket Number | BRB 98-0212 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BERNARD B. HAPNEY Claimant-Respondent v. PEABODY 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UNPUBLISHED OPINION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 Awarding Benefits of Richard A Morgan, Administrative Law Judge, United States Department of Labor.
Perry D. McDaniel (Crandall, Pyles, Haviland & Turner, LLP) Charleston, West Virginia, for claimant.
Richard A. Dean (Arter & Hadden LLP), Washington, D.C for employer.
Helen H. Cox (Henry L. Solano, 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: SMITH and BROWN, Administrative Appeals Judges, and NELSON, Acting Administrative Appeals Judge.
SMITH, Administrative Appeals Judge.
Employer appeals the Decision and Order Awarding Benefits (96-BLA-1824) of Administrative Law Judge Richard A. Morgan on a duplicate 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] The administrative law judge found that the newly submitted evidence established the existence of a totally disabling respiratory impairment and thus established a material change in conditions at 20 C.F.R. §725.309. He then considered all the evidence of record and found the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a), 718.203, and total disability due to pneumoconiosis at 20 C.F.R. §718.204 (c), (b). Accordingly, he awarded benefits. Employer argues that the administrative law judge erred in finding a material change in conditions, in finding the existence of pneumoconiosis arising out of coal mine employment, and in finding that claimant's totally disabling respiratory impairment was due to pneumoconiosis.[2] Claimant responds, urging affirmance of the administrative law judge's decision. The Director, Office of Workers' Compensation Programs (the Director), responds, arguing that contrary to the employer's contention, the "one element" test for a material change in conditions adopted by the United States Court of Appeals for the Fourth Circuit does not impermissibly shift the burden of proof to the party opposing entitlement. Employer has submitted a reply brief.
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if the findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associated, Inc., 30 U.S. 359 (1965).
Initially, employer contends that the one element standard for establishing a material change in conditions at Section 725.309 adopted by the United States Court of Appeals for the Fourth Circuit, wherein jurisdiction of this case lies, in Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996) is invalid in view of the decision of the United States Supreme Court in Metropolitan Stevedore Co. v. Rambo [Rambo II], 117 S.Ct. 1953, 31 BRBS 54 (CRT) (1997).Employer argues that, under the Rutter standard, once a claimant proves a change in his claim as to some element of entitlement, the claimant benefits from an "irrebuttable presumption" that the change is material. Employer argues that this presumption violates Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 18 BLR 2A-1 (1994), aff'g sub nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993), Rambo II, and Section 7(c) of the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a), all of which require that claimant prove a material change in conditions by a preponderance of the evidence. We disagree. In Rambo II, the United States Supreme Court addressed the issue of a longshoreman's potential future decline in earning capacity, and did not address what proof was necessary to establish a material change in conditions in a duplicate claim under the Act. The Court's decision in Rambo II does not alter the Fourth Circuit's decision in Rutter and the other cases adopting the one element standard. See Labelle Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995); Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994); see also Peabody Coal Co. v. Spese, 117 F.3d 1001, 21 BLR 2-115 (7th Cir. 1997).
Employer next contends, in the alternative, that even under Rutter, the administrative law judge erred by finding a material change in conditions based on Dr. Rasmussen's opinion. Employer argues that Dr. Rasmussen's opinion, submitted with the duplicate claim, was "almost a carbon copy" of his opinion submitted with claimant's original claim and thus did not establish a change in claimant's condition. Employer's Brief at 11. Employer also argues that the pulmonary function studies submitted with the duplicate claim show improvement in claimant's condition since the denial of his original claim. We reject this argument. The administrative law judge considered all of the newly submitted evidence. He found the newly submitted pulmonary function studies and blood gas studies "somewhat equivocal" as to claimant's total disability. See Decision and Order Awarding Benefits at 14. Within his discretion as fact-finder, the administrative law judge also found that the newly submitted medical opinions were determinative of the issue, as every doctor who submitted a report with the duplicate claim, namely Drs. Rasmussen, Fino and Zaldivar, diagnosed a totally disabling respiratory impairment. Director's Exhibit 11; Claimant's Exhibit 1; Employer's Exhibits 1, 23. Inasmuch as this finding is based on substantial evidence in the record, it is affirmed. We, therefore, affirm the administrative law judge's finding that the newly submitted evidence establishes a material change in conditions under Section 725.309. Rutter, supra.
On the merits of the claim, employer first argues that the administrative law judge erred in finding the existence of pneumoconiosis established at Section 718.202(a). The administrative law judge found the x-ray evidence equivocal and therefore not sufficient to establish the existence of pneumoconiosis under Section 718.202 (a)(1). He also found that the presumptions referred to in Section 718.202(a)(3) were inapplicable to this claim.[3] The administrative law judge found, however, that the existence of pneumoconiosis was established based on the biopsy evidence at Section 718.202(a)(2) and based on Dr. Rasmussen's opinion at Section 718.202(a)(4).
The administrative law judge specifically found that because the biopsy that claimant underwent in 1972 included a diagnosis of anthracosis, it was sufficient to establish the existence of pneumoconiosis. He noted that "anthracosis is pneumoconiosis, as a matter of law, if it results in respiratory or pulmonary impairment and is significantly related to or substantially aggravated by coal dust exposure." Decision and Order Awarding Benefits at 17. The administrative law judge then indicated, without further discussion, that he would not accord determinative weight to Dr. Zaldivar's opinion since he found that the opinion was contrary to the finding of pneumoconiosis made on biopsy. Decision and Order Awarding Benefits at 19. Employer correctly argues that Dr. Zaldivar opined that the 1972 biopsy findings do not constitute a diagnosis of pneumoconiosis, Employer's Exhibits 20, 23.[4]
Insofar as the administrative law judge relied on the autopsy evidence to find the existence of pneumoconiosis established at Section 718.202(a)(2), he erred. The Act defines the term "pneumoconiosis" to mean a chronic dust disease of the lung arising out of employment in a coal mine. 30 U.S.C. §902(b). The regulation at 20 C.F.R. §718.201, cited by the administrative law judge in the instant case, provides:
For the purposes of the Act, pneumoconiosis means a dust, disease of the lung and its sequelae, including respiratory and, pulmonary impairments, arising out of coal mine employment. This, definition includes, but is not limited to coal workers' pneumoconiosis, anthracosilicosis, anthracosis, anthracosilicosis, massive pulmonary fibrosis, progressive, massive fibrosis, silicosis, or silicotuberculosis, arising, out of coal mine employment (emphasis added). For purposes, of this definition, a disease "arising out of coal mine, employment" includes any chronic pulmonary disease resulting in, respiratory or pulmonary impairment significantly related to, or, substantially aggravated by, dust exposure in coal mine, employment.
20 C.F.R. §718.201. The record, as it now stands, contains no biopsy evidence which affirmatively links the diagnosis of "anthracosis" with claimant's coal mine employment. Thus, the administrative law judge's finding of the existence of pneumoconiosis based on the biopsy evidence at Section 718.202(a)(2) cannot be sustained, and is vacated. On remand, the administrative law judge must redetermine the sufficiency of evidence to meet claimant's burden to establish the existence of pneumoconiosis at Section 718.202(a).
At Section 718.202(a)(4), the administrative law judge credited the opinion of Dr. Rasmussen, who diagnosed coal workers' pneumoconiosis, over the contrary opinions...
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