Kennedy v. McElroy Coal Co., BRB 13-0592 BLA
| Decision Date | 29 July 2014 |
| Docket Number | BRB 13-0592 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ROGER D. KENNEDY Claimant-Respondent v. McELROY COAL COMPANY, Self-Insured through CONSOLIDATED ENERGY, INCORPOARTED 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UNPUBLISHED OPINION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 - Award of Benefits in a Subsequent Claim of Larry S. Merck, Administrative Law Judge, United States Department of Labor.
Anne Megan Davis (Johnson, Jones, Snelling, Gilbert & David P.C.), Chicago, Illinois, for claimant.
William S. Mattingly (Jackson Kelly PLLC), Morgantown, West Virginia, for employer/carrier.
Emily Goldberg-Kraft (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: HALL, Acting Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Employer/carrier (employer) appeals the Decision and Order - Award of Benefits in a Subsequent Claim [1](2010-BLA-05559) of Administrative Law Judge Larry S. Merck rendered on a claim filed pursuant to the provisions of Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012)(the Act). Considering the entire record, the administrative law judge found that the evidence established that claimant is entitled to invocation of the rebuttable presumption of total disability due to pneumoconiosis under amended Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4)(2012). [2] The administrative law judge further found that employer did not rebut the presumption. 30 U.S.C. §921(c)(4)(2012). Accordingly the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in applying the rebuttal provisions of amended Section 411(c)(4) to this case and erred in failing to apply the proper rebuttal standard in evaluating the evidence. Employer also contends that the administrative law judge erred in his evaluation of the rebuttal evidence and in his consideration of the case pursuant to 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). [3] In response, claimant argues that the administrative law judge's award of benefits should be affirmed. The Director, Office of Workers' Compensation Programs (the Director), in a limited response brief, states that the administrative law judge properly applied the amended Section 411(c)(4) presumption in this case, and properly applied the correct rebuttal standard. The Director also contends that the administrative law judge permissibly discredited the disability causation opinions of physicians who did not diagnose the existence of legal pneumoconiosis.
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. [4] 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).
Applicability of Amended Section 411(c)(4)
Employer asserts that the rebuttal provisions under amended Section 411(c)(4) apply only to claims against the “Secretary, ” and not to claims brought against a responsible operator. Employer contends, therefore, that “no limits of any kind” apply to employer's ability to rebut the presumption. This argument has been previously addressed and rejected. See Owens v. Mingo Logan Coal Co., 25 BLR 1-1, 1-5 (2011), aff'd sub nom. Mingo Logan Coal Co. v. Owens, 724 F.3d 550 (4th Cir. 2013)(Niemeyer, J., concurring); W.Va. CWP Fund v. Stacy, 671 F.3d 378, 25 BLR 2-65 (4th Cir. 2011), cert. denied, 133 S.Ct. 127 (2012); Fairman v. Helen Mining Co., 24 BLR 1-227, 1-229 (2011). Employer also asserts that the absence of implementing regulations at the time of this claim's adjudication prevent application of the presumption. This argument has likewise been addressed and rejected. See Rose v. Clinchfield Coal Co., 614 F.2d 936, 939, 2 BLR 2-38, 2-43 (4th Cir. 1980); DeFore v. Alabama By-Products, 12 BLR 1-27 (1988); Alexander v. Island Creek Coal Co., 12 BLR 1-44, 1-47 (1988), aff'd sub nom. Island Creek Coal Co. v. Alexander, No. 88-3863 (6th Cir. Aug. 29, 1989); Tanner v. Freeman United Coal Co., 10 BLR 1-85 (1987); see 20 C.F.R. §718.305(d). Accordingly, we affirm the administrative law judge's application of the amended Section 411(c)(4) presumption to this case, including the rebuttal provisions contained therein. [5]
To rebut the presumption at amended Section 411(c)(4), employer must affirmatively prove that the miner does not suffer from either clinical or legal pneumoconiosis or that his total disability is not due to coal mine employment. 30 U.S.C §921(c)(4)(2012); see Barber v. Director, OWCP 43 F.3d 899, 901, 19 BLR 2-61, 2-67 (4th Cir. 1995); Rose, 614 F.2d at 939, 2 BLR at 2-43; accord Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479-480, 25 BLR 2-1, 2-8-9 (6th Cir. 2011). We affirm, as unchallenged on appeal, the administrative law judge's finding that employer failed to disprove the existence of clinical pneumoconiosis. Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 38.
In finding that employer failed to disprove the existence of legal pneumoconiosis, the administrative law judge accorded little weight to the opinion of Dr. Crisalli, [6]because it was premised on scientific evidence concerning the causes of respiratory impairment, which conflicted with the scientific evidence credited by the Department of Labor (DOL) in the preamble to the 2001 revised black lung regulations. [7] The administrative law judge also accorded little weight to Dr. Crisalli's opinion, that claimant's obstructive impairment is not due to coal dust exposure, because the doctor found that claimant's respiratory condition improved with the use of bronchodilator treatment. The administrative law judge found Dr. Crisalli's opinion to be inconsistent with the view of the scientific literature, adopted by the DOL, that holds that coal dust exposure causes permanent fixed effects on a miner's respiratory system. Regarding Dr. Zaldivar's opinion, [8]the administrative law judge accorded it little weight because Dr. Zaldivar believed, contrary to the position adopted by the DOL, that emphysema caused by coal dust exposure manifests itself differently from emphysema caused by smoking.
Initially, we reject employer's assertion that the administrative law judge erred in relying on the preamble to the 2001 revised regulations in evaluating the credibility of the medical opinion evidence pursuant to Section 718.202(a)(4). Contrary to employer's assertion, the administrative law judge did not utilize the preamble to the 2001 revised regulations as a legislative rule or misapply the burden of proof by creating an erroneous “irrebuttable” presumption of legal pneumoconiosis. [9] See Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 25 BLR 2-115 (4th Cir. 2012). Rather, the administrative law judge properly consulted the preamble as an authoritative statement of the medical principles accepted by the DOL in promulgating the 2001 revised regulations, and permissibly evaluated the medical opinions of record for consistency therewith. See Looney, 678 F.3d at 311, 25 BLR at 2-125. The administrative law judge, therefore, properly accorded little weight to Dr. Crisalli's opinion, attributing claimant's pulmonary impairment “solely” to tobacco-induced emphysema, secondary to a component of asthma. The administrative law judge found that it “conflict[ed]” with the scientific literature adopted by the DOL, which acknowledges: that coal mine dust exposure is clearly associated with clinically significant airways obstruction; that the risk is additive with cigarette smoking; and that coal dust-induced emphysema and smoking-induced emphysema occur through similar mechanisms. See 65 Fed. Reg. 79, 940-43 (Dec. 20, 2000); Looney, 678 F.3d at 311, 25 BLR at 2-125; see also Helen Mining Co. v. Director, OWCP [Obush], 650 F.3d 248, 257, 24 BLR 2-369, 2-382-83 (3d Cir. 2011), aff'g J.O. [Obush] v. Helen Mining Co., 24 BLR 1-117, 1-125-26 (2009); Consolidation Coal Co. v. Director, OWCP [Beeler], 521 F.3d 723, 726, 24 BLR 2-97, 2-103 (7th Cir. 2008); Peabody Coal Co. v. McCandless, 255 F.3d 465, 468-69, 22 BLR 2-311, 2-318 (7th Cir. 2001).
Further the administrative law judge properly accorded little weight to Dr. Crisalli's opinion, that claimant's obstructive impairment is not due to coal dust exposure, because it was based on claimant's improved respiratory response after treatment with bronchodilators. [10] See Beeler, 521 F.3d at 726, 24 BLR at 2-103. Specifically, the administrative law judge stated that Dr. Crisalli's opinion was unreasoned, because “the fact that claimant may experience some relief from bronchodilators does not address the cause of the fixed portion of claimant's impairment that does not benefit from bronchodilator treatment.” [11] Decision and Order at 38-39. As neither a miner's improved response to bronchodilator treatment, nor the variability of his respiratory impairment, preclude the existence of a coal mine dust-related impairment, the administrative law judge permissibly accorded little weight to Dr. Crisalli's opinion on this basis. See 20 C.F.R. §718.201(a)(2); Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 21 BLR 2-323, 2-335 (4th Cir. 1998); Sterling Smokeless...
To continue reading
Request your trial