Hapney v. Peabody Coal Co., BRB 02-0729 BLA
| Decision Date | 31 July 2003 |
| Docket Number | BRB 02-0729 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UNPUBLISHED OPINION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 On Remand Granting Benefits of Richard A. Morgan, Administrative Law Judge, United States Department of Labor.
Michael E. Bevers (Crandall, Pyles, Haviland & Turner, LLP) Charleston, West Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Helen H. Cox (Howard M. Radzely, Acting Solicitor of Labor; Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; 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: DOLDER Chief Administrative Appeals Judge, McGRANERY and HALL, Administrative Appeals Judges.
Employer appeals the Decision and Order On Remand Granting 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] This case is before the Board for the third time. In Hapney v. Peabody Coal Co., BRB No. 98-0212 BLA (June 18, 1999)(unpub.)(Nelson, J., dissenting), the Board affirmed the administrative law judge's finding that the newly submitted evidence established a material change in conditions under 20 C.F.R. §725.309 (2000). The Board however, vacated the administrative law judge's findings that the evidence established the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(2), (4) (2000) and 718.203 (2000), and disability causation at 20 C.F.R. §718.204(b) (2000). [2] The Board remanded the case with instructions to the administrative law judge to consider if the existence of pneumoconiosis was established and if reached, whether claimant had established the requisite causal connections between pneumoconiosis and his coal mine employment and between claimant's disability and pneumoconiosis.
On remand, the administrative law judge determined that claimant established that he had coal workers' pneumoconiosis arising out of his coal mine employment as defined in the Act, and that pneumoconiosis substantially contributed to his total respiratory disability. Accordingly, benefits were awarded.
On appeal to the Board for the second time in Hapney v. Peabody Coal Co., 22 BLR 1-104 (2001)(en banc)(Smith and Dolder, JJ., concurring in part and dissenting in part), the Board initially addressed whether the amendment to 20 C.F.R. §718.202(a)(2) was implicated prior to proceeding to adjudicate the merits of the appeal. The Board noted that the findings made upon claimant's 1972 biopsy included a diagnosis of "[b]iopsy from the right middle lobe of the lung showing subpleural fibrosis with anthracosis, perivascular anthracosis and chronic pulmonary emphysema." Employer's Exhibit 22. The Board stated that these diagnoses of anthracosis, with related disease process, which the administrative law judge determined to be credible and uncontradicted, fell within the definition of "pneumoconiosis" as defined by the Act and implementing regulations and accepted that a diagnosis of anthracosis supports a finding of pneumoconiosis. [3] 30 U.S.C. §902(b); 20 C.F.R. §§718.201(a)(1), 718.202(a)(2); 65 Fed. Reg. 79944 (2000). The Board thus affirmed the administrative law judge's determination that the biopsy evidence supported a finding of the existence of pneumoconiosis. [4] The Board noted that this holding adopted the position of the Director, Office of Workers' Compensation Programs (the Director), that the etiology of claimant's conditions diagnosed on biopsy was properly considered, not pursuant to the regulation at 20 C.F.R. §718.202(a), but pursuant to the regulation at 20 C.F.R. §718.203, see Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993), citing BethEnergy Mines, Inc. v. Pauley, 501 U.S. 680, 15 BLR 2-155 (l991), aff'g 890 F.2d 1295, 13 BLR 2-162 (3d Cir. l989) and Adkins v. Director, OWCP, 878 F.2d 151, 12 BLR 2-313 (4th Cir. 1989). In addition, the Board vacated the administrative law judge's findings that the evidence established the requisite etiology of claimant's pneumoconiosis and his totally disabling respiratory or pulmonary impairment at 20 C.F.R. §§718.203 and 718.204(c).
The Board remanded the case with instructions to the administrative law judge to weigh the evidence with regard to employer's burden to rebut the presumption that claimant's pneumoconiosis arose out of his coal mine employment under 20 C.F.R. §718.203, and, if reached, to additionally weigh the evidence with regard to claimant's burden to establish that his totally disabling respiratory or pulmonary impairment is due to his pneumoconiosis under 20 C.F.R. §718.204(c). The Board discerned no intransigence on the administrative law judge's part in this case and declined employer's request to order that the case be transferred on remand to another administrative law judge.
On remand for the second time, the administrative law judge reopened the record for the submission of additional evidence and held another hearing. In his Decision and Order, the administrative law judge determined that claimant established that he had coal workers' pneumoconiosis, that his pneumoconiosis arose out of his coal mine employment and that his pneumoconiosis contributed to his total respiratory disability. Accordingly, benefits were awarded.
In the instant appeal, employer contends that the diagnosis of anthracosis made on claimant's biopsy is not included within the definition of pneumoconiosis at Section 718.201. Employer challenges the administrative law judge's finding that claimant established the existence of pneumoconiosis arising out of coal mine employment and disability causation at Sections 718.202(a), 718.203(b) and 718.204(c). Employer also contends that the record demonstrates bias and intransigence on the part of the administrative law judge, and requests that the Board order that the case be reassigned to a different administrative law judge if the case is remanded. Claimant responds, urging affirmance of the award of benefits. Employer has filed a reply brief. The Director has filed a letter in response to employer's appeal, addressing the issue of the inclusion of anthracosis within the definition of pneumoconiosis at Section 718.201.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law 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 by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure of claimant to establish any of these requisite elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986).
Employer alleges reversible error in the administrative law judge's finding that claimant established the existence of pneumoconiosis. The Board previously affirmed the administrative law judge's finding that the biopsy evidence and Dr. Rasmussen's medical opinion support a finding of the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(2) and (a)(4), but instructed the administrative law judge to reevaluate the evidence of record regarding the existence of pneumoconiosis in accordance with the holding in Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000). [5] On remand, the administrative law judge initially noted that the Board previously affirmed his finding that the 1972 biopsy findings of anthracosis supported a finding of the existence of pneumoconiosis since the regulatory definition of pneumoconiosis provided at 20 C.F.R. §718.201(a)(1) includes anthracosis. Decision and Order on Remand at 7. In discussing the biopsy evidence, the administrative law judge stated that:
In the instant matter, the biopsy of the middle lobe and peribronchial lymph node was taken in connection with a right throactomy (sic) and repair of the eventuation of the diaphragm conducted by Dr. Jamal Khan, a surgeon, on December 6, 1972. Dr. Khan's gross observation included, "[T]he lungs showed evidence of anthracosis." One surgical pathology report revealed a peribronchial "lymph node with marked anthracosis but no tumor" on gross examination and "lymphocytic and histiocytic cells show an abundant anthracotic pigmentation . . . (with) moderate fibrosis of interlobular connective tissue." The second surgical pathology report involving lung specimens revealed a "pleural surface show(ing) areas of anthracosis . . . lung parenchyma show(ing) edematous changes" on gross examination and, on microscopic examination, ". . . lung tissue showing areas of subpleural fibrosis with anthracosis", some alveoli containing "pigment laden macrophages", and areas showing perivascular anthracosis." The pathologist who examined these samples diagnosed...
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