Keen v. Koch Carbon, Inc., BRB 09-0603 BLA
| Decision Date | 30 September 2010 |
| Docket Number | BRB 09-0603 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BESSIE KEEN (Widow of and o/b/o of WILLIAM KEEN) Claimant-Respondent v. KOCH CARBON, INCORPORATED 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UNPUBLISHED OPINION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 of Daniel F. Solomon Administrative Law Judge, United States Department of Labor.
John R. Sigmond (Penn, Stuart & Eskridge), Bristol, Virginia for employer.
Helen H. Cox (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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Remand (2007-BLA-05124 and 2005-BLA-00022) of Administrative Law Judge Daniel F. Solomon issued with respect to a consolidated case involving the miner's request for modification of his denied claim filed on February 5, 1993, and a survivor's claim, filed on October 27, 2005, 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) ()(the Act). [1] This case is before the Board for a second time. A procedural history of the case is provided in B.K. [Keen] v. Koch Carbon, Inc., BRB Nos. 07-0968 and 07-0972 BLA, slip op. at 2 n.2 (Sept. 30, 2008) (unpub.), which is incorporated herein. The Board previously vacated the administrative law judge's denial of benefits in both claims because his Decision and Order did not satisfy the requirements of the Administrative Procedure Act (APA). [2] Keen, slip op. at 5. Specifically, the Board held that the administrative law judge mischaracterized the evidence, did not identify with specificity the evidence in the record relevant to the miner's request for modification, and did not adequately set forth the rationale underlying his findings. Id. at 3, 5. The Board remanded the miner's claim in order for the administrative law judge to consider all of the evidence submitted subsequent to the miner's modification request, filed on June 8, 2001, in determining whether claimant established a basis for modification pursuant to 20 C.F.R. §725.310 (2000). [3] Id. The administrative law judge was instructed to consider whether claimant established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a), in accordance with Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000). Id. at 4. The Board further directed the administrative law judge to render specific findings, pursuant to 20 C.F.R. §718.304(a)-(c), as to whether claimant was entitled to the irrebuttable presumption of total disability due to pneumoconiosis. Id. at 5.
With respect to the survivor's claim, the Board vacated the denial of benefits because the administrative law judge erred in failing to render complete findings under 20 C.F.R. §718.202(a)(1), (4), and did not address all of the relevant evidence. Keen, slip op. at 10. The Board remanded the case for further consideration, in accordance with Compton. Id. The Board directed the administrative law judge on remand to also consider, if applicable, whether the miner's death was due to pneumoconiosis at 20 C.F.R. §718.205(c), and whether claimant was entitled to invocation of the irrebuttable presumption of death due to pneumoconiosis set forth in 20 C.F.R §718.304. Id. at 11. In reaching his findings in both claims, the administrative law judge was required to explain the bases for his credibility determinations in accordance with the APA. Id. at 8, 11.
On remand, the administrative law judge addressed the Board's instruction that he identify the evidence relevant to the miner's modification request and stated, “[a]fter review of all the evidence, I now find that as the life claim involves a series of requests for modification of the 1993 claim, the documents in the survivor's claim should, [in the] interests of justice, be used in the life claim.” [4] Decision and Order on Remand at 3. The administrative law judge concluded that the “complete record establishes total disability as of February, 2003.” Id. at 5. The administrative law judge noted that the evidence before the district director as of June 8, 2001, the date of the miner's modification request, clearly established the existence of simple pneumoconiosis. However, in weighing the newly submitted x-ray evidence pursuant to 20 C.F.R. §718.202(a)(1), the administrative laws judge found that there were twenty-two readings of nine x-rays, of which, seven were positive for pneumoconiosis and fifteen were negative for the disease. Id. at 7. The administrative law judge concluded that, “[a]lthough employer was permitted under the rules in force prior to January 21, 2001 to submit more than one piece of evidence to rebut [the miner's] position . . . [c]laimant has not submitted enough evidence to meet her burden of proof” as to the x-ray evidence. Id. at 9. Pursuant to 20 C.F.R. §718.202(a)(2), the administrative law judge found that the biopsy evidence, while including references to some degree of anthracotic pigmentation, was insufficient to establish the existence of clinical pneumoconiosis. [5] Id. Relevant to 20 C.F.R. §718.202(a)(3), the administrative law judge found that while there was evidence of complicated pneumoconiosis, claimant failed to establish that she was entitled to invocation of the irrebuttable presumption of total disability due to pneumoconiosis set forth in 20 C.F.R. §718.304. Id. at 9-10.
However, pursuant to 20 C.F.R. §718.202(a)(4), [6]the administrative law judge found that Dr. Byers' opinion was sufficient to establish the existence of legal pneumoconiosis. [7] Id. at 10-14. The administrative law judge also found that the miner's twenty-three year history of dust exposure in coal mine employment “in part caused the pneumoconiosis.” Id. at 14. In considering the issue of disability causation at 20 C.F.R. §718.204(c), the administrative law judge gave less weight to the opinions of Drs. Dahhan and Castle because they did not diagnose legal pneumoconiosis, contrary to the administrative law judge's finding. Id. The administrative law judge credited Dr. Byers' opinion that the miner's total disability was caused in significant part by coal dust exposure and found that claimant satisfied her burden of proving that the miner was totally disabled due, in part, to pneumoconiosis. Id. Noting that Dr. Patel rendered the first diagnosis of total disability in the record in a report dated October 11, 2000, the administrative law judge awarded benefits in the miner's claim, commencing in October 2000. Id. at 15. With respect to claimant's survivor's claim, the administrative law judge also found that claimant established the existence of legal pneumoconiosis, and determined, based on the death certificate, that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Id. Accordingly, the administrative law judge awarded survivor's benefits, beginning on March 1, 2005, the month in which the miner died. Id.
On appeal, employer argues that the administrative law judge erred in failing to explain why the interests of justice required that he consider evidence from the survivor's claim in the miner's claim. Employer challenges the administrative law judge's finding that the miner was totally disabled due to legal pneumoconiosis, asserting that he did not properly consider whether Dr. Byers' opinion was reasoned and documented. Employer contends that the administrative law judge's credibility findings fail to satisfy the APA, and that he erred in finding that claimant was entitled to benefits in the miner's claim commencing in October 2000. With respect to the survivor's claim, employer argues that the administrative law judge erred in considering evidence from the miner's claim in the survivor's claim, erred in considering Dr. Byers' December 13, 2004 letter, and erred in finding that claimant established the existence of pneumoconiosis and death due to pneumoconiosis. Claimant, who is not represented by counsel, has not responded to employer's appeal. The Director, Office of Workers' Compensation Programs (the Director), has filed a letter, indicating that he will not file a response brief on the merits.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. [8] 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 under Part 718 in the miner's claim, claimant must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis was totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. To establish a basis for modification in the miner's claim, claimant must demonstrate either a change in conditions or a mistake in a determination of fact. See 20 C.F.R. §725.310 (2000). In considering whether a change in conditions has been established pursuant to 20 C.F.R. §725.310 (2000), an administrative law judge is obligated to perform an independent assessment of the newly submitted evidence, considered in conjunction with the previously submitted evidence, to determine if the weight of the new...
To continue reading
Request your trial