Hunt v. Jawbone Coal Corp., BRB 09-0646 BLA
| Decision Date | 30 June 2010 |
| Docket Number | BRB 09-0646 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | VESTIL HUNT Claimant-Respondent v. EDD POTTER COAL COMPANY/JAWBONE COAL CORPORATION and AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY Employer/Carrier- Petitioners 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UNPUBLISHED OPINION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 Paul C Johnson, Jr., Administrative Law Judge, United States Department of Labor.
Sarah Y. M. Kirby (Sands Anderson Marks & Miller), Blacksburg Virginia, for employer.
Michelle S. Gerdano (M. Patricia Smith, Solicitor of Labor Rae Ellen James, Associate Solicitor; 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, McGRANERY and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order - Awarding Benefits (2008-BLA-5730) of Administrative Law Judge Paul C. Johnson Jr., with respect to a miner's claim filed on March 5, 2007, pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) (to be codified at 30 U.S.C. §§921(c)(4) and 932(l)) (the Act). After crediting claimant with 27.25 years of coal mine employment, the administrative law judge adjudicated this claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge determined that claimant established the existence of clinical pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(1), 718.203(b), and a totally disabling respiratory impairment due to coal workers' pneumoconiosis at 20 C.F.R. §718.204(b)(2)(ii), (iv), (c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in his consideration of the x-ray evidence as to the existence of simple pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), and that he failed to consider all of the relevant evidence, as to whether claimant is totally disabled due to pneumoconiosis, pursuant to 20 C.F.R. §718.204(b)(2), (c). Neither claimant, nor the Director, Office of Workers' Compensation Programs (the Director), has filed a response brief in this appeal.
By Order dated March 30, 2010, the Board provided the parties with the opportunity to address the impact on this case, if any, of Section 1556 of Public Law No. 111-148, which amended the Act with respect to the entitlement criteria for certain claims. [1] Hunt v. Edd Potter Coal Co./Jawbone Coal Corp, BRB No. 09-0646 BLA (Mar. 30, 2010)(unpub. Order). The Director and employer have responded.
The Director states that Section 1556 will not affect this case if the Board affirms the administrative law judge's award of benefits. However, the Director further asserts that, if the Board does not affirm the administrative law judge's findings, remand for consideration under Section 411(c)(4), 30 U.S.C. §921(c)(4), and for the possible submission of additional evidence, would be required, as the present claim was filed after January 1, 2005, and the administrative law judge credited claimant with more than fifteen years of coal mine employment. Employer responds, agreeing that if the Board affirms the administrative law judge's findings, the issue of the invocation of the presumption is moot, but that if the case is remanded, the administrative law judge would need to consider the applicability of the recent amendments in this claim.
To determine whether this case must be remanded for consideration of the invocation of the rebuttable presumption of total disability due to pneumoconiosis, we will first address employer's allegations of error regarding the administrative law judge's findings at 20 C.F.R. §§718.202(a)(1), 718.203(b), and 718.204(b)(2)(ii), (iv), (c).
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law. [2] 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 filed pursuant to 20 C.F.R. Part 718, claimant must establish the existence of 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; Gee v. W.G. Moore & Sons, 9 BLR 14 (1986)(en banc). Failure to establish any one of these elements precludes entitlement. See Trent v. Director, OWCP, 11 BLR 126 (1987); Perry v. Director, OWCP, 9 BLR 11 (1986)(en banc).
In considering whether claimant established the existence of pneumoconiosis, the administrative law judge considered interpretations of three x-rays, dated May 17, 2007, November 7, 2007, and June 26, 2008. The May 17, 2007 x-ray was read by Drs. Rasmussen and DePonte as positive for simple and complicated pneumoconiosis. [3] Director's Exhibit 15; Claimant's Exhibit 4. In contrast, Dr. Scatarige interpreted the same x-ray as negative for simple and complicated pneumoconiosis. Employer's Exhibit 3. He wrote in the comments section of the ILO classification form that there were a Id. Dr Scartarige further noted that there were “no small, round opacities” to suggest coal workers' pneumoconiosis or silicosis. Id.
The November 7, 2007 x-ray was read by Dr. DePonte as positive for simple and complicated pneumoconiosis. Claimant's Exhibit 2. Drs. Scatarige and Wheeler both interpreted the x-ray as negative for simple and complicated pneumoconiosis. Employer's Exhibits 1, 2. In the comments section of the ILO classification form, Dr. Scatarige identified some “probable subsegmental nodular infiltrates in the [right upper lung]” that he thought were due to pneumonia or another cause. Employer's Exhibit 1. Dr. Wheeler also noted some “ill defined irregular and possible nodular infiltrates” in the middle zone of claimant's lung and in the left lower lateral lung, which he opined could indicate granulomatous disease. Employer's Exhibit 2.
The June 26, 2008 x-ray was read by Dr. DePonte as positive for simple and complicated pneumoconiosis. Claimant's Exhibit 1. Drs. Scatarige and Wheeler interpreted the same x-ray as negative for simple and complicated pneumoconiosis. Employer's Exhibits 13, 14. In the comments section of the ILO classification form, Dr. Scatarige noted a few scattered nodules in the upper and middle zones of claimant's right lung, which he attributed to “bilateral pneumonia, cancer or lymphoma, fungal disease, or atypical sarcoid or mycrobacterial infection.” Employer's Exhibit 13. Dr. Scatarige reiterated that there were “no background small opacities” indicating coal workers' pneumoconiosis. Id.
In weighing the conflicting readings, the administrative law judge noted that all of the physicians who provided interpretations are B readers. Decision and Order at 4-7; Director's Exhibits 15, 18; Claimant's Exhibits 1, 2, 4; Employer's Exhibits 1-3, 13, 14. In addition, he found that Drs. DePonte, Scatarige, and Wheeler are dually-qualified as Board-certified radiologists. Decision and Order at 4-7; Claimant's Exhibits 1, 2, 4; Employer's Exhibits 1-3, 13, 14. The administrative law judge determined that Dr. DePonte's positive interpretations for simple pneumoconiosis outweighed the contrary, negative readings for simple pneumoconiosis by Drs. Scatarige and Wheeler. In support of this finding, he noted that Dr. DePonte “has been quite consistent in her interpretations over time” and that “although Drs. Scatarige and Wheeler observed no nodules or fibrosis in the earliest x-ray, they did observe them in later x-rays and did not provide alternative explanations for their presence.” Decision and Order at 11. In addition, the administrative law judge found that Dr. DePonte's interpretation of the May 17, 2007 x-ray was supported by the positive reading by Dr. Rasmussen, a B reader. Id. The administrative law judge specifically stated, “I do not intend to imply the [e]mployer bears any burden to show the non-existence of pneumoconiosis; I simply note that statements by Drs. Wheeler and Scatarige that the x-rays do not show pneumoconiosis are undermined by the unexplained presence of small infiltrates, nodules, and fibrosis.” Id. at 11 n.6. Thus, the administrative law judge found that claimant established the existence of simple, clinical pneumoconiosis based on the x-ray evidence at 20 C.F.R. §718.202(a)(1). [4] Id. at 11.
Employer asserts that, although the administrative law judge explained that he did not intend to shift the burden of proof to employer, in giving less weight to the interpretations of Drs. Scatarige and Wheeler because they did not explain the presence of certain radiological abnormalities they observed this is in effect what the administrative law judge did. Employer also argues that the administrative law judge mischaracterized the interpretations by Drs. Scatarige and Wheeler, insofar as both physicians explained that they did not find any opacities indicating the presence of coal workers' pneumoconiosis. Further, employer contends that the administrative law judge did not give appropriate weight to the interpretations of Drs. Scatarige and Wheeler, based on their credentials as dually qualified Board-certified radiologists and B...
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