Lester v. Vaco Resources Inc.
| Decision Date | 05 November 2020 |
| Docket Number | BRB 19-0556 BLA,19-0556 BLA-A |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ROGER L. LESTER Claimant-Petitioner Cross-Respondent v. VACO RESOURCES INCORPORATED and WEST VIRGINIA COAL WORKERS' PNEUMOCONIOSIS FUND Employer/Carrier-Respondents Cross-Petitioners 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UNPUBLISHED OPINION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 Morris D Davis, Administrative Law Judge, United States Department of Labor.
Roger L. Lester, Hurley, Virginia.
Kathy L. Snyder and Andrea L. Berg (Jackson Kelly PLLC) Morgantown, West Virginia, for Employer/Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant without the assistance of counsel, [1] appeals, and Employer and its Carrier (Employer) cross-appeal, Administrative Law Judge Morris D. Davis's Decision and Order Denying Benefits (2016-BLA-05939) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves a miner's subsequent claim filed on May 12, 2014.[2]
The administrative law judge noted Claimant was credited with eleven years of coal mine employment in the most recent prior denial of benefits, which is insufficient to invoke the Section 411(c)(4) presumption of total disability due to pneumoconiosis.[3] 30 U.S.C. §921(c)(4) (2012). He further determined even if Claimant could invoke the presumption, Claimant could not establish a change in an applicable condition of entitlement[4] because only his request for modification was pending as of the date the presumption was enacted. After considering whether Claimant could establish entitlement under 20 C.F.R. Part 718 without the presumption, the administrative law judge determined Claimant failed to establish pneumoconiosis or total disability due to pneumoconiosis. He therefore found Claimant failed to demonstrate a change in an applicable condition of entitlement and denied benefits.
On appeal, Claimant generally challenges the denial of benefits. Employer responds in support of the denial. On cross-appeal, Employer challenges the administrative law judge's discrediting of Dr. Rosenberg's opinion that Claimant does not have legal pneumoconiosis. The Director, Office of Workers' Compensation Programs (the Director), has declined to file a response brief in either appeal.
In an appeal a claimant files without the assistance of counsel, the Benefits Review Board considers whether the Decision and Order below is supported by substantial evidence. See McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989). We must affirm the administrative law judge's Decision and Order Denying Benefits if his findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law. 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).
The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, [5] has specifically held that invocation of the Section 411(c)(4) presumption establishes an element of entitlement for purposes of demonstrating a change in an applicable condition of entitlement in a subsequent claim. E. Assoc. Coal Corp. v. Director, OWCP [Toler], 805 F.3d 502, 511-14, 25 BLR 2-743, 754-58 (4th Cir. 2015); see also Consolidation Coal Co. v. Director, OWCP [Bailey], 721 F.3d 789, 794-95, 25 BLR 2-285, 2-292-93 (7th Cir. 2013); Consolidation Coal Co. v. Director, OWCP [Burris], 732 F.3d 723, 731, 25 BLR 2-405, 2-420 (7th Cir. 2013). The administrative law judge correctly determined that the Section 411(c)(4) presumption applied to Claimant's first claim as he filed it after January 1, 2005, and it was still pending on March 23, 2010, based on his request for modification of the denial of that claim. 30 U.S.C. §921(c)(4) (2012); Decision and Order at 3. He further determined, however, that invocation of the presumption could not establish a change in an applicable condition of entitlement because Claimant's subsequent claim, filed on May 12, 2014, was not pending on March 23, 2010. He therefore did not consider whether Claimant satisfied the prerequisites for invocation of the Section 411(c)(4) presumption. Id. This was error as Section 411(c)(4) applies to all claims filed after January 1, 2005, and pending on or after March 23, 2010. 30 U.S.C. §921(c)(4) (2012); 20 C.F.R. §718.305(a); see Toler, 805 F.3d at 511-14, 25 BLR at 754-58; Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-158 n.11 (2015) (Boggs, J., concurring & dissenting); Director's Exhibit 3. Accordingly, we reverse the administrative law judge's findings that the Section 411(c)(4) presumption does not apply to Claimant's subsequent claim and that invocation cannot establish a change in an applicable condition of entitlement.
As previously indicated, to invoke the Section 411(c)(4) presumption, Claimant must initially establish he had at least fifteen years of underground or substantially similar surface coal mine employment. 30 U.S.C. §921(c)(4); 20 C.F.R. §718.305(b)(1)(ii). The administrative law judge noted Claimant's allegation that he had more than fifteen years of underground coal mine employment and surface coal mine employment in substantially similar dust conditions. Decision and Order at 5. He also acknowledged Employer's assertion that the previous administrative law judge's finding of eleven years of qualifying coal mine employment should be binding in Claimant's current claim under the doctrine of collateral estoppel. Id. at 5-6. The administrative law judge did not, however, further address the issue, presumably because he believed the Section 411(c)(4) presumption was not applicable to Claimant's subsequent claim. Id. at 3.
Contrary to Employer's assertion, collateral estoppel does not preclude the administrative law judge from revisiting the issue of the length of Claimant's coal mine employment. For collateral estoppel to apply, it must be established that: 1) the issue sought to be precluded is identical to one previously litigated; 2) the issue was actually determined in the prior proceeding; 3) the issue's determination was a critical and necessary part of the decision in the prior proceeding; 4) the prior judgment is final and valid; and 5) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the previous forum. Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006); Hughes v. Clinchfield Coal Co., 21 BLR 1-134, 1-137 (1999) (en banc). Judge Kirby denied Claimant's request for modification and benefits because she found Claimant did not establish the existence of pneumoconiosis.[6] Thus, Judge Kirby's finding of eleven years of coal mine employment was not "a critical and necessary part" of the judgment in Claimant's first claim and is not binding in his subsequent claim. Collins, 468 F.3d at 217. We must therefore vacate the denial of benefits and remand the case to the administrative law judge to render a finding as to whether Claimant can establish at least fifteen years of qualifying coal mine employment.[7]
In the interest of judicial economy, we address the administrative law judge's finding that Claimant failed to meet his burden to establish entitlement under 20 C.F.R. Part 718, in the event that the Section 411(c)(4) presumption is not invoked on remand.
Without the benefit of the presumption, Claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any of these elements precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987). The administrative law judge denied benefits because Claimant did not establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)[8] and thus did not demonstrate a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309.
In evaluating the presence of clinical pneumoconiosis, the administrative law judge noted the new evidence submitted in Claimant's subsequent claim consists of eleven interpretations of five x-rays dated July 16, 2014, [9] August 28, 2015, November 8, 2016, January 28, 2017, and June 6, 2017, and that all of the interpreting physicians are dually qualified as Board-certified radiologists and B readers.[10] See 20 C.F.R. §718.202(a)(1); Decision and Order at 11-15, 42-44; Director's Exhibits 16, 20, 22; Claimant's Exhibits 1-4; Employer's Exhibits 1, 5, 6, 9.
Drs Crum and Miller interpreted the July 16, 2014 x-ray as positive for pneumoconiosis, whereas Dr. Wolfe interpreted it as negative for pneumoconiosis. Director's Exhibits 16, 20, 22. Dr. Miller interpreted the August 28, 2018 x-ray as positive for pneumoconiosis, while Dr. Tarver interpreted the x-ray as negative. Claimant's Exhibit 2; Employer's Exhibit 1. Dr. Crum interpreted x-rays dated November 8, 2016, and January 28, 2017, as positive for pneumoconiosis, whereas Dr. Meyer interpreted each x-ray as negative. Claimant's Exhibits 1, 3; Employer's Exhibits 5, 6. Dr. Crum interpreted the June 6, 2017 x-ray as positive for pneumoconiosis, while Dr. Tarver interpreted...
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