Lee v. American Energy, LLC
| Decision Date | 16 November 2018 |
| Docket Number | BRB 18-0087 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ROBERT E. LEE, Claimant-Petitioner v. AMERICAN ENERGY, LLC and ROCKWOOD CASUALTY INSURANCE COMPANY Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Denying Benefits of Alan L Bergstrom, Administrative Law Judge, United States Department of Labor.
Robert E. Lee, St. Paul, Virginia.
Cody F. Fox (Penn Stuart & Eskridge), Bristol, Virginia, for employer/carrier.
Ann Marie Scarpino (Kate S. O'Scannlain, Solicitor of Labor Kevin Lyskowski, Acting 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, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant without the assistance of counsel, [1] appeals the Decision and Order - Denying Benefits (2015-BLA-05663) of Administrative Law Judge Alan L. Bergstrom, rendered on a claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2012) (the Act). This case involves a miner's claim filed on November 15, 2013.
The administrative law judge accepted the parties' stipulation that claimant had more than twenty-nine years of coal mine employment. He also found that claimant did not establish that he has complicated pneumoconiosis and thus did not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3) (2012). He further determined that claimant did not establish a totally disabling respiratory impairment, an essential element of entitlement, and denied benefits.
On appeal, claimant generally challenges the administrative law judge's denial of benefits. Employer/carrier (employer) responds, urging affirmance. The Director, Office of Workers' Compensation Programs (the Director), has filed a brief alleging error in the administrative law judge's finding that claimant failed to establish total disability. Employer responds that contrary to the Director's assertions, the administrative law judge properly weighed the evidence relevant to total disability and substantial evidence supports the denial of benefits.
In an appeal filed by a claimant without the assistance of counsel, the Board considers whether the Decision and Order below is supported by substantial evidence. See Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84, 1-86-87 (1994); McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176, 1-177 (1989). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with law.[2] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keefe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to benefits in a living miner's claim filed pursuant to 20 C.F.R Part 718, a claimant must prove that he has pneumoconiosis; his pneumoconiosis arose out of coal mine employment; he has a totally disabling respiratory or pulmonary impairment; and his total disability is due to pneumoconiosis. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989). A claimant can also establish entitlement to benefits with the aid of the presumptions at Sections 411(c)(3) and 411(c)(4) of the Act. 30 U.S.C. §§921(c)(3), (4).
Section 411(c)(3) of the Act establishes an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he has a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. The administrative law judge must determine whether the evidence in each category tends to establish the existence of complicated pneumoconiosis, and then must weigh together the evidence at subsections (a), (b), and (c) before determining whether claimant has invoked the irrebuttable presumption. See E. Assoc. Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 255 (4th Cir. 2000); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33 (1991) (en banc).
Relevant to 20 C.F.R. §718.304(a), the record contains three x-rays dated December 18, 2013, August 15, 2014, and July 2, 2015. The administrative law judge determined correctly that none of the x-ray readers reported an opacity of greater than one centimeter in diameter.[3] Decision and Order at 15. He also accurately found that the record does not contain biopsy evidence diagnosing massive lesions under 20 C.F.R. §718.304(b). Id. Although the administrative law judge did not make an explicit finding at 20 C.F.R. §718.304(c), there is no other medical evidence in the record indicating that claimant has a condition which would yield results equivalent to the criteria set forth in prongs (a) or (b) of 20 C.F.R. §718.304. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. Thus, the administrative law judge properly concluded that claimant did not establish that he has complicated pneumoconiosis. We therefore affirm his finding that claimant is not entitled to the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 20 C.F.R. §718.304; see Scarbro, 220 F.3d at 255; Decision and Order at 15.
Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is totally disabled due to pneumoconiosis in cases where he establishes at least fifteen years of underground coal mine employment, or coal mine employment in conditions substantially similar to those in an underground coal mine, and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2012); 20 C.F.R. §718.305. Once invoked, the burden shifts to the employer to disprove that the miner has pneumoconiosis or that no part of his totally disabling respiratory or pulmonary impairment was caused by pneumoconiosis. 20 C.F.R. §718.305(d)(1).
The administrative law judge's determination that claimant did not invoke the Section 411(c)(4) presumption is based on his finding that claimant did not establish that he is totally disabled. A miner is considered 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). In the absence of contrary probative evidence, a miner's disability is established by qualifying[4] pulmonary function studies or 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).
Relevant to 20 C.F.R. §718.204(b)(2)(i), the record contains five pulmonary function studies. The pulmonary function study dated October 30, 2013, performed without the use of bronchodilators, produced values that qualify as totally disabling. Claimant's Exhibit 4. The March 26, 2014 pulmonary function study results were non-qualifying before and after the use of bronchodilators. Director's Exhibits 10, 14. The pulmonary function study performed without bronchodilators on August 1, 2014 produced qualifying values. Claimant's Exhibit 5. The August 15, 2014 pulmonary function study results were non-qualifying before and after the use of bronchodilators. Director's Exhibit 11. Finally, the pulmonary function study conducted on July 2, 2015 produced qualifying values before and after the use of bronchodilators. Employer's Exhibit 1.
The administrative law judge observed that the studies dated August 15, 2014 and July 2, 2015 did not include statements regarding claimant's effort, understanding, or cooperation in performing the required maneuvers. Decision and Order at 17. He then stated:
Since none of the FVC . . . test results were at or below the table listed value for the Claimant's age and height, whether the results were qualifying turned on the FEV1/FVC ratio. The qualifying results had a FEV1/FVC ratio at, or 1 point below, the qualifying 55 value. The non-qualifying results were 1 to 5 points above that value. Because pneumoconiosis is a latent and progressive disease, the pulmonary function studies display fluctuations in the Claimant's pulmonary function that are not expected in the progressively disabling disease of pneumoconiosis arising out of coal mine employment.
Id. The administrative law judge concluded that the pulmonary function study evidence was, "at best," in equipoise and therefore insufficient to establish total disability at 20 C.F.R. §718.204(b)(2)(i). Id.
The Director contends that the administrative law judge did not explain his finding and, "to the extent [he] is suggesting that the [pulmonary function study] results could not prove disability because they are variable, he is wrong as a matter of law." Director's Brief at 4. The Director also maintains that the administrative law judge conflated the issues of the existence of pneumoconiosis and the presence of a totally disabling impairment by characterizing...
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