Hess v. Island Creek Coal Co.
| Decision Date | 11 August 2021 |
| Docket Number | BRB 20-0238 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | PRESTON D. HESS Claimant-Respondent v. ISLAND CREEK 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UNPUBLISHED OPINION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 Granting Second Request for Modification of Francine L. Applewhite, Administrative Law Judge, United States Department of Labor.
Kathy L. Snyder and Andrea L. Berg (Jackson Kelly PLLC) Morgantown, West Virginia, for Employer.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and JONES, Administrative Appeals Judges.
Employer appeals Administrative Law Judge Francine L. Applewhite's Decision and Order Granting Second Request for Modification (2016-BLA-05404) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves Claimant's second request for modification of a miner's subsequent claim filed on April 10, 2008.[1]
The administrative law judge credited Claimant with thirty years of underground coal mine employment based on the parties' stipulation, and found he is totally disabled. 20 C.F.R. §718.204(b)(2). She therefore found Claimant established a change in conditions, 20 C.F.R. §725.310, [2] and invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[3] She further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer argues the administrative law judge erred in finding Claimant is totally disabled and in finding he invoked the Section 411(c)(4) presumption. Employer also argues the administrative law judge erred in finding it did not rebut the presumption.[4] Neither Claimant nor the Director, Office of Workers' Compensation Programs, has filed a response.
The Benefits Review Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Assocs., Inc., 380 U.S. 359 (1965).
In a miner's claim, the administrative law judge may grant modification based on either a change in conditions or a mistake in a determination of fact. 20 C.F.R. §725.310(a). An administrative law judge has broad discretion to grant modification based on a mistake of fact, including the ultimate fact of entitlement to benefits. See Betty B Coal Co. v. Director, OWCP [Stanley], 194 F.3d 491, 497 (4th Cir. 1999); Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir. 1993); Nataloni v. Director, OWCP, 17 BLR 1-82, 1-84 (1993).
A miner is totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine work and comparable gainful work. See 20 C.F.R. §718.204(b)(1). Claimant may establish total disability based on pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R. §718.204(b)(2)(i)-(iv). The administrative law judge must weigh all relevant supporting evidence against all relevant contrary evidence. See Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff'd on recon., 9 BLR 1-236 (1987) (en banc). The administrative law judge found Claimant established total disability based on the blood gas studies and medical opinions.[6] Decision and Order at 16-18.
The administrative law judge considered the eight blood gas studies submitted in conjunction with Claimant's April 10, 2008 subsequent claim and two modification proceedings. The administrative law judge observed Dr. Forehand's March 10, 2017 blood gas study produced qualifying results with exercise. Decision and Order at 7, 16. She also noted Dr. Basheda questioned whether the exercise values reflected a "fixed type of pulmonary process" but found the study reliable because no physician invalidated the study, and no evidence suggested that one of Claimant's medical conditions affected its results. Decision and Order at 16-17; Employer's Exhibit 11 at 32. As all remaining blood gas studies were conducted "at least one and a half years prior to the March 10, 2017 study," the administrative law judge found it merited determinative weight. Decision and Order at 16-17.[7] She therefore found Claimant established total disability at 20 C.F.R. §718.204(b)(2)(ii). Decision and Order at 17. argues the administrative law judge erred in crediting Dr. Forehand's March 10, 2017 blood gas study because it "was not performed in conjunction with a complete medical history and physical examination of Claimant"[8] and neither Dr. Forehand nor the technician indicated whether Claimant was either suffering from, or recovering from, an acute respiratory or cardiac illness at the time the test was conducted. Employer's Brief at 6-8. Employer contends that absent information regarding Claimant's health at the time of the study, "a determination cannot be made regarding the reliability of the test results" because the record shows Claimant has a history of medical conditions that could have affected its results. Id. at 7-8. Employer additionally asserts Dr. Basheda opined the March 2017 study is unreliable. Id. at 7. Employer's contention is without merit.
The applicable quality standard requires that a blood gas study "must not be performed during or soon after an acute respiratory or cardiac illness." 20 C.F.R. Part 718, Appendix C; Employer's Brief at 7. Dr. Basheda did not invalidate the March 2017 blood gas study, nor did any other physician. Employer's Exhibit 11 at 28-30. Dr. Basheda stated only that the study showed a disabling oxygen impairment that "might" have been due to "some unstable cardiopulmonary entity" or "uncontrolled asthma." Id. The administrative law judge permissibly found no evidence establishing that Claimant suffered from an acute condition when he performed the test. Further, she correctly noted that Dr. Forehand relied on the study in diagnosing Claimant with a permanent and disabling gas-exchange impairment.[9] Decision and Order at 10, 17; Claimant's Exhibit 13. Because we discern no error in the administrative law judge's determination that the study is valid and reliable, we affirm it.[10] Vivian v. Director, OWCP, 7 BLR 1-360, 361-62 (1984) ().[11]Because Employer raises no other challenge to the administrative law judge's weighing of the blood gas evidence, we affirm her finding that, considered in isolation, it establishes total disability at 20 C.F.R. §718.204(b)(2)(ii). See Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 316-17 (4th Cir. 2012); see also Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir. 1992).
The administrative law judge considered four medical opinions. 20 C.F.R. §718.204(b)(2)(iv). Drs. Forehand and Jonkers opined Claimant is totally disabled. Dr. Basheda diagnosed a disabling oxygen impairment based on the March 2017 blood gas study but opined it may not be a chronic condition. Dr Castle opined Claimant can perform his usual coal mine employment from a respiratory or pulmonary standpoint. Director's Exhibits 41, 65, 70, 91, 99; Claimant's Exhibits 5, 12, 13; Employer's Exhibits 11, 12. The administrative law judge credited the opinions of Drs. Forehand and Jonkers and rejected the opinions of Drs. Basheda and Dahhan. Decision and Order at 16-18.
Employer argues that the administrative law judge conflated the issues of disability and causation, failed to discuss the qualifications of the physicians, erred in finding the opinions of Drs. Forehand and Jonkers credible, and gave improper reasons for discrediting its experts. Employer's arguments have merit, in part.
We agree with Employer that the administrative law judge improperly conflated the issues of total disability and disease or disability causation when evaluating Drs. Basheda's and Castle's opinions. 20 C.F.R. §718.204(b)(2), (c). In weighing these opinions relevant to total disability, the administrative law judge discounted Dr. Basheda's opinion because he focused on non-coal dust related diseases and conditions and did not explain why Claimant's thirty-plus year history of underground coal dust exposure did not contribute to his impairment. Decision and Order at 18. She similarly discounted Dr. Castle's opinion because he did not explain "his rationale for excluding coal mine dust exposure as a possible contributing factor" in Claimant's pulmonary or respiratory impairment. Id. at 16-17.
Contrary to the administrative law judge's analysis, the proper inquiry at 20 C.F.R. §718.204(b)(2) is whether Claimant has established a totally disabling respiratory or pulmonary impairment; the cause of that impairment is addressed at 20 C.F.R. §718.204(c), or in consideration of whether the Section 411(c)(4) presumption has been rebutted. See 30 U.S.C. §921(c)(4); 20 C.F.R. §718.305(d)(1)(ii). In combining her analyses, the administrative law judge failed to assess whether the opinions of Drs. Basheda and Castle regarding the presence or absence of a disabling respiratory or pulmonary impairment are reasoned and documented, exclusive of their opinions as to the etiology of that impairment. 20 C.F.R. §718.204(b)(2)(iv).
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