Held v. Consolidation Coal Co., BRB 98-0876 BLA
| Decision Date | 28 September 1999 |
| Docket Number | BRB 98-0876 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ARTHUR O. HELD Claimant-Respondent v. CONSOLIDATION 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UNPUBLISHED OPINION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 of Richard A. Morgan Administrative Law Judge, United States Department of Labor.
Cheryl Catherine Cowen, Waynesburg, Pennsylvania, for claimant.
William S. Mattingly and Kathy L. Snyder (Jackson & Kelly), Morgantown, West Virginia, 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, the United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
DECISION AND ORDER
Employer appeals the Decision and Order (97-BLA-0578) of Administrative Law Judge Richard A. Morgan awarding benefits 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). The administrative law judge initially noted that the parties agreed that claimant had at least thirty-two years of coal mine employment and is totally disabled, see 20 C.F.R. §718.204(c), and, therefore, established a material change in conditions pursuant to 20 C.F.R §725.309(d) in this duplicate claim.[1] Next, the administrative law judge considered the instant claim on the merits under 20 C.F.R. Part 718. The administrative law judge found that while the existence of pneumoconiosis was not established pursuant to 20 C.F.R. §718.202(a)(1)-(3), it was established by the medical opinion evidence pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge further found that pneumoconiosis arising out of coal mine employment was established pursuant to 20 C.F.R. §718.203(b). Finally, the administrative law judge found total disability due to pneumoconiosis established pursuant to 20 C.F.R. §718.204(b). Accordingly, benefits were awarded. Because the administrative law judge found that no specific onset date of disability was evident from the record, the administrative law judge awarded benefits from the date of filing pursuant to 20 C.F.R. §725.503(b).
On appeal, employer contends that the administrative law judge erred in finding the existence of pneumoconiosis established pursuant to Section 718.202(a)(4) and total disability due to pneumoconiosis established pursuant to Section 718.204(b), and erred in awarding benefits as of the date of filing. Claimant responds, urging that the Decision and Order of the administrative law judge's awarding benefits be affirmed. The Director, Office of Workers' Compensation Programs [the Director], as a party-in-interest, also responds, urging the Board to reject employer's contentions as to the administrative law judge's finding regarding the onset date of claimant's disability under Section 725.503(b).
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 into the Act 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 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. Moreover, pursuant to Section 718.204(b), claimant must prove by a preponderance of the evidence that his pneumoconiosis was at least a contributing cause of his totally disabling respiratory impairment, see Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 15 BLR 2-225 (4th Cir. 1990); Robinson v. Pickands Mather & Co., 914 F.2d 35, 14 BLR 2-68 (4th Cir. 1990).
Pursuant to Section 718.202(a)(4), the administrative law judge considered the most recent medical opinions of record, which consisted of the opinions of Drs. Tsai, Jaworski and Garson who found that claimant had coal workers' pneumoconiosis and was totally disabled due to his coal dust exposure, as well as smoking, and the opinions of Drs. Renn, Fino and Morgan, who found that claimant's respiratory disease and disability was not due to his coal mine employment.[2] Dr. Tsai, board-certified in internal medicine and claimant's treating physician, read an x-ray as 0/1, but found that claimant was totally disabled due to severe obstructive lung disease and emphysema, and found that claimant's coal dust exposure, as well as his smoking, was a major contributing factor in his chronic obstructive pulmonary disease, Director's Exhibits 10, 29; Employer's Exhibit 5; Claimant's Exhibit 1. Dr. Jaworski, board-certified in internal medicine and pulmonary diseases and a B-reader, [3]read an x-ray as 0/1, but found that claimant was totally disabled due to severe obstructive airway disease and emphysema, and found that claimant's airway disease and disability was substantially related to and aggravated by his coal dust exposure, as well as his smoking, Director's Exhibits 14, 16; Employer's Exhibit 14. Finally, Dr. Garson read an x-ray as 1/0, diagnosed severe chronic obstructive pulmonary disease, coal workers' pneumoconiosis and emphysema related to claimant's coal dust exposure and smoking, which was totally disabling, Dr. Garson found that claimant's coal workers' pneumoconiosis, caused by his coal dust exposure, was a substantial contributing factor in his disability, Claimant's Exhibits 2-3, 5.
On the other hand, Dr. Renn, board-certified in internal medicine and pulmonary diseases and a B-reader, found that claimant was totally disabled due to a severe obstructive respiratory impairment and pulmonary emphysema, which was not caused or contributed to by claimant's coal dust exposure, but rather by his smoking, Director's Exhibit 28; Employer's Exhibit 16. Dr. Fino, board-certified in internal medicine and pulmonary diseases and a B-reader, read an x-ray as 0/0 and found claimant totally disabled due to a severe obstructive respiratory impairment and pulmonary emphysema related to claimant's smoking, not his coal dust exposure, Hearing Transcript at 34-89; Employer's Exhibits 3, 13. Finally, Dr. Morgan, a B-reader who reviewed the medical evidence, also found claimant totally disabled due to a severe obstructive respiratory impairment related to claimant's smoking, not his coal dust exposure, Employer's Exhibit 10.
The administrative law judge initially stated that Dr. Tsai's opinion "carries a great deal of weight" as he was claimant's treating physician who had conducted at least ten annual pulmonary evaluations on claimant, Decision and Order at 21. The administrative law judge also noted that Drs. Tsai, Jaworski, Renn and Fino "have the best credentials, " with Drs. Garson and Morgan "falling a tier below" and finding that as Dr. Morgan did not examine claimant, his opinion was entitled to slightly less weight, Decision and Order at 22. Contrary to employer's contentions, the administrative law judge did not specifically find that Dr. Tsai's qualifications were "equal" to those of Drs. Jaworski, Renn and Fino. Moreover, there is no evidence in the record to support employer's contention that Dr. Morgan has the "British equivalent" to board-certification in internal and pulmonary medicine. Thus, the administrative law judge properly found that Drs. Morgan and Garson, who were not board-certified in internal medicine, were not as qualified as Drs. Tsai, Jaworski, Renn and Fino.
The administrative law judge further found Dr. Renn's opinion that he has never diagnosed disability due to coal workers' pneumoconiosis absent a 2/2 x-ray as "of significant concern, " of being hostile to the Act. Dr Renn did testify, contrary to employer's contention, that pneumoconiosis does not cause a clinically significant impairment unless it can be read as 2/2 on x-ray, see Employer's Exhibit 16 at 45; see also Thorn v. Itmann Coal Co., 3 F.3d 713, 18 BLR 2-216 (4th Cir. 1993). In addition, the administrative law judge found the opinions of Drs. Renn, Fino and Morgan, that claimant's respiratory disease was due solely to his smoking, were "disingenuous." Employer contends that the administrative law judge failed to explain why he found their opinions were "disingenuous." However, the administrative law judge, within his discretion, specifically found that Dr. Morgan did not adequately explain his conclusion, see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc). In addition, the administrative law judge found that Dr. Renn admitted that smoking as well as coal dust exposure can have an additive effect on a claimant's obstructive lung disease and impairment, see Employer's Exhibit 16 at 28-29, and that Dr. Fino admitted that some of claimant's objective test results were consistent with coal workers' pneumoconiosis, see Hearing Transcript at 74. It is within the administrative law judge's discretion, as the trier-of-fact, to determine the weight and credibility to be accorded the medical experts, see Mabe...
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