Jefferson v. Ziegler Coal Co.
| Decision Date | 28 September 2022 |
| Docket Number | BRB 21-0171 BLA,21-0172 BLA |
| Parties | TRACIE JEFFERSON (Executrix of the Estate of BRENDA S. JEFFERSON, Deceased Widow of and o/b/o WILLIE JEFFERSON) Claimant-Petitioner v. ZIEGLER COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
TRACIE JEFFERSON (Executrix of the Estate of BRENDA S. JEFFERSON, Deceased Widow of and o/b/o WILLIE JEFFERSON) Claimant-Petitioner
v.
ZIEGLER COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier-Respondents
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
BRB Nos. 21-0171 BLA, 21-0172 BLA
Court of Appeals of Black Lung
September 28, 2022
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand and Order Granting in Part and Denying in Part Claimant's Motion for Reconsideration of Jonathan C. Calianos, Administrative Law Judge, United States Department of Labor.
Austin P. Vowels (Vowels Law PLC), Henderson, Kentucky, for Claimant.
Jeffrey R. Soukup (Jackson Kelly PLLC), Lexington, Kentucky, for Employer.
Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant[1] appeals Administrative Law Judge (ALJ) Jonathan C. Calianos's Decision and Order on Remand and his Order Granting in Part and Denying in Part Claimant's Motion for Reconsideration (Order on Motion for Reconsideration) (2011-BLA-05932 and 2013-BLA-06100) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a request for modification of a miner's subsequent claim filed on July 28, 2006, and a survivor's subsequent claim filed on August 20, 2010. Both claims are before the Benefits Review Board for the second time.[2]
In a November 30, 2011 Decision and Order Denying Benefits issued in the miner's claim, ALJ Joseph E. Kane credited the Miner with thirty-three years of coal mine employment, with at least twenty-seven years in underground mines, but found the new evidence did not establish the Miner was totally disabled. 20 C.F.R. §718.204(b)(2). He therefore found the Miner could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act,[3] 30 U.S.C. §921(c)(4) (2018). Considering entitlement under 20 C.F.R. Part 718, he found the new evidence did not establish the Miner had pneumoconiosis. 20 C.F.R. §718.202(a). Thus he found the Miner failed to establish a change in an applicable condition of entitlement, 20 C.F.R. §725.309, and denied benefits.
As the Miner had died on March 15, 2008, while his claim was pending, the Miner's widow indicated she would be pursuing his claim on behalf of his estate. Miner's Claim (MC) Director's Exhibit 55. She timely requested modification of the denial of benefits on January 17, 2012. 20 C.F.R. §725.310; MC Director's Exhibit 84. In addition, she separately filed a subsequent survivor's claim on August 20, 2010. Survivor's Claim (SC) Director's Exhibit 5. However, she died on March 9, 2016, while both claims were
pending. S.C. Director's Exhibit 29. Claimant, the surviving daughter of the Miner and his widow, indicated she would be pursuing both claims. June 8, 2016 Hearing Tr. at 24.
ALJ Calianos (the ALJ) adjudicated the request for modification in his May 11, 2017 Decision and Order Denying Benefits in Living Miner's and Survivor's Claims (Decision and Order on Modification). He credited the Miner with at least twenty-seven years of underground coal mine employment but found the evidence insufficient to establish the Miner had pneumoconiosis or was totally disabled. 20 C.F.R. §§718.202, 718.204(b)(2). Therefore he found Claimant could not invoke the Section 411(c)(4) presumption or establish a basis for modification in the miner's claim. 20 C.F.R. §725.310. As the Miner was not entitled to benefits at the time of his death, the ALJ found no basis to award derivative survivor's benefits under Section 422(l) of the Act,[4] 30 U.S.C. §932(l) (2018). He also denied benefits in the subsequent survivor's claim because Claimant could not establish a change in an applicable condition of entitlement. 20 C.F.R. §725.309.
Pursuant to Claimant's appeal, the Board affirmed the ALJ's finding that the Miner had at least twenty-seven years of underground coal mine employment. Jefferson v. Zeigle r Coal Co., BRB Nos. 17-0471 BLA, 17-0472 BLA, slip op. at 3 n.5 (Sept. 26, 2018) (unpub.). The Board vacated, however, his finding that Claimant failed to establish the Miner was totally disabled based on the pulmonary function study and medical opinion evidence. Id. at 7-9; see 20 C.F.R. §718.204(b)(2)(i), (iv). Thus the Board vacated his finding that Claimant failed to invoke the Section 411(c)(4) presumption in the miner's claim or establish derivative entitlement in the survivor's claim under Section 422(l), and remanded both claims for further consideration. Jefferson, BRB Nos. 17-0471 BLA, 17-0472 BLA, slip op. at 10.
On remand, the ALJ again found the evidence insufficient to establish total disability and thus Claimant could not invoke the Section 411(c)(4) presumption or establish a basis for modification in the miner's claim. 20 C.F.R. §§718.204(b)(2), 725.310. He also reinstated his denial of survivor's benefits. Pursuant to Claimant's request for reconsideration, the ALJ agreed that he erred in finding the diffusion capacity evidence invalid, but nevertheless found the medical evidence did not establish total disability based on the diffusion capacity evidence. Thus he again denied benefits.
On appeal, Claimant argues the ALJ erred in finding she failed to establish the Miner was totally disabled. Employer responds in support of the denial of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
The Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Orders if they are 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 & Grylls Assocs., Inc., 380 U.S. 359 (1965).
In considering whether to grant modification of the prior denial of the Miner's subsequent claim, the ALJ was required to determine whether the denial contained a mistake in a determination of fact or whether the evidence submitted on modification, along with the evidence previously submitted in the subsequent claim, was sufficient to establish a change in an applicable condition of entitlement.[6] 20 C.F.R. §§725.309(c); 725.310; Hess v. Director, OWCP, 21 BLR 1-141, 143 (1998). The ALJ is authorized "to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971) (emphasis added).
Invocation of the Section 411(c)(4) Presumption: Total Disability
A miner was totally disabled if he had a pulmonary or respiratory impairment which, standing alone, prevented him from performing his usual coal mine work and comparable gainful work. See 20 C.F.R. §718.204(b)(1). A claimant may establish the miner was totally disabled 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 ALJ 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).
On remand, the ALJ found the pulmonary function studies and medical opinions do not establish total disability.[7] 20 C.F.R. §718.204(b)(2)(i), (iv); Decision and Order on Remand at 6, 9-10, 23-24.
Pulmonary Function Studies
Claimant argues the ALJ erred in finding the pulmonary function study evidence does not establish the Miner was totally disabled. Claimant's Brief at 19-29. Her argument has merit.
In his May 11, 2017 Decision and Order on Modification, the ALJ considered three pulmonary function studies dated August 24, 2006, October 24, 2006, and February 15, 2007. Decision and Order on Modification at 16-17; MC Director's Exhibits 17, 49 at 73-77, 108-114. He found no mistake in ALJ Kane's finding that these studies do not establish total disability.[8] Decision and Order on Modification at 16-17. Specifically, he found the August 24, 2006 study produced qualifying[9] values for total disability, but agreed with ALJ Kane that it is invalid. Id. He further found the October 24, 2006 and February 15, 2007 studies non-qualifying. Id. As the record contains no valid, qualifying study, he found the pulmonary function testing does not establish total disability. Id.
The Board vacated the ALJ's finding that the August 24, 2006[10] study is invalid because he failed to explain the weight he accorded to Dr. Mettu's validation report, or why he credited the opinions of Drs. Repsher and Selby that the study is invalid over Dr. Chavda's opinion that it is valid. Jefferson, BRB Nos. 17-0471 BLA, 17-0472 BLA, slip op. at 7. Thus the Board held that his credibility findings did not satisfy the explanatory requirements of the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a).[11] The Board therefore remanded the case to resolve the conflict in the evidence regarding the validity of the August 24, 2006 study and determine whether it is sufficient to establish total disability. Jefferson, BRB Nos. 17-0471 BLA, 17-0472 BLA, slip op. at 11.
On remand, rather than revisiting whether the August 24, 2006 pulmonary function study is valid, the ALJ issued an alternative basis for concluding that there is no mistake in a determination of fact with respect to ALJ Kane's finding that the pulmonary function study evidence does not establish total disability.[12] Decision and Order on Remand at 6. Adopting ALJ Kane's findings, the ALJ stated:
[ALJ] Kane...
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