Lynch v. Old Ben Coal Co., BRB 10-0209 BLA
| Decision Date | 08 December 2010 |
| Docket Number | BRB 10-0209 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RONALD L. LYNCH Claimant-Petitioner v. OLD BEN COAL COMPANY and THE TRAVELERS COMPANIES, INCORPORATED Employer/Carrier- Respondents Cross-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Cross-Petitioner |
UNPUBLISHED OPINION
Appeal of the Decision and Order Denying Benefits of Jeffrey Tureck Administrative Law Judge, United States Department of Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for employer.
Ann Marie Scarpino (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, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals and the Director, Office of Workers' Compensation Programs (the Director), cross-appeals the Decision and Order Denying Benefits (07-BLA-5426) of Administrative Law Judge Jeffrey Tureck rendered on a claim filed 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). In a Decision and Order dated November 5, 2009, the administrative law judge credited claimant with sixteen years of coal mine employment, [1]and found that the evidence did not establish the existence of either clinical [2]or legal [3]pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). Accordingly, the administrative law judge denied benefits. The administrative law judge further found, assuming arguendo that claimant is entitled to benefits, that employer is not the responsible operator and that liability for the payment of any benefits must be transferred to the Black Lung Disability Trust Fund (the Trust Fund).
On appeal, claimant argues that the administrative law judge erred in permitting employer to submit two rebuttal readings of a June 26, 2006 x-ray, and in admitting certain reports by Drs. Tuteur and Rosenberg as rehabilitative evidence. Claimant further contends that the administrative law judge erred in weighing the x-ray, computed tomography (CT) scan, and medical opinion evidence in finding that claimant did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (4). The Director has filed a response brief, urging the Board to vacate the administrative law judge's denial of benefits and remand this case for further consideration. The Director agrees with claimant that the administrative law judge erroneously admitted two rebuttal readings of the June 26, 2006 x-ray, and erred in weighing the x-ray and medical opinions pursuant to 20 C.F.R. §718.202(a)(1), (4). The Director has also filed a cross-appeal, contending that the administrative law judge erred in transferring liability to the Trust Fund. Employer has submitted a combined response brief, arguing in support of both the administrative law judge's denial of benefits and transfer of liability to the Trust Fund. [4] The Director has filed a reply brief reiterating his contention, on cross-appeal, that the administrative law judge erred in transferring liability to the Trust Fund.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence, are rational, and are in accordance with applicable 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).
To establish entitlement to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 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, 1-112 (1989).
After the issuance of the administrative law judge's Decision and Order Denying Benefits, amendments to the Act, affecting claims filed after January 1, 2005 that were pending on or after March 23, 2010, were enacted. The amendments, inter alia, revive Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4), which provides a rebuttable presumption of total disability due to pneumoconiosis in cases where the miner has established fifteen or more years of qualifying coal mine employment and a totally disabling respiratory impairment. 30 U.S.C. §921(c)(4).
By Order dated May 28, 2010, the Board provided the parties with the opportunity to address the impact on this case, if any, of the amendments made to the Act by Section 1556 of Public Law No. 111-148. The Director and claimant have responded, asserting that, because claimant was credited with sixteen years of coal mine employment, and because his claim was filed after January 5, 2005, and was pending on March 23, 2010, the recent amendments affect this case. Director's Supplemental Brief at 4; Claimant's Supplemental Brief at 2.
We agree that Section 1556 affects this case. Because the administrative law judge credited claimant with sixteen years of coal mine employment, and employer conceded before the administrative law judge that claimant suffers from a totally disabling respiratory impairment, Employer's Closing Brief at 12, we must vacate the administrative law judge's denial of benefits, and remand this case for consideration of this claim pursuant to Section 411(c)(4). If the administrative law judge finds that claimant is entitled to the presumption that he is totally disabled due to pneumoconiosis at Section 411(c)(4), the administrative law judge must then determine whether the medical evidence rebuts the presumption by showing that claimant does not have pneumoconiosis or that his total disability “did not arise out of, or in connection with, ” coal mine employment. 30 U.S.C. §921(c)(4). The administrative law judge, on remand, must allow for the submission of evidence by the parties to address the change in law, consistent with the evidentiary limitations. See 20 C.F.R. §§725.414, 725.456.
Although we have vacated the denial of benefits, in the interest of judicial economy, we will address the parties' arguments regarding the administrative law judge's evidentiary rulings, his findings regarding the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (4), and his transfer of liability to the Trust Fund for the payment of any benefits.
Claimant contends, and the Director agrees, that the administrative law judge erred in admitting into evidence Dr. Scott's negative reading of the x-ray dated June 26, 2006. Claimant's contention has merit.
The June 26, 2006 x-ray was procured as part of the examination of claimant performed at the request of the Department of Labor (DOL). Dr. Whitehead, a dually qualified B reader and Board-certified radiologist, interpreted the x-ray on behalf of DOL and read it as positive for pneumoconiosis. Director's Exhibit 9. Claimant designated a positive reading by Dr. Alexander, a dually qualified physician, as rebuttal evidence. Claimant's Exhibit 3. Employer designated two negative readings by Drs. Wheeler and Scott both of whom are dually qualified physicians, in rebuttal of the positive readings by Drs. Whitehead and Alexander. Employer's Exhibits 10, 15. At the hearing, the administrative law judge admitted, over claimant's objection, both of employer's x-ray interpretations on the ground that employer was entitled to rebut each positive reading of the June 26, 2006 x-ray. Hearing Transcript at 26. On reconsideration, the administrative law judge again overruled claimant's objections. Order Denying Reconsideration of Evidentiary Ruling and Closing Record (Order) at 2.
Pursuant to 20 C.F.R. §725.414(a)(2)(ii), claimant was entitled to submit, in rebuttal of employer's case, one physician's interpretation of the x-ray submitted by the Director pursuant to 20 C.F.R. §725.406. 20 C.F.R §725.414(a)(2)(ii). Claimant permissibly submitted the positive interpretation by Dr. Alexander as rebuttal evidence in response to the interpretation submitted by the Director. See J.V.S. [Stowers] v. Arch of W.Va./Apogee Coal Co., 24 BLR 1-78, 1-83 (2008). Similarly, under 20 C.F.R. §725.414(a)(3)(ii), employer was entitled to submit, in rebuttal of claimant's case, one physician's interpretation of the x-ray submitted by the Director under 20 C.F.R. §725.406. 20 C.F.R. §725.414(a)(3)(ii). Employer permissibly submitted the negative interpretation by Dr. Wheeler as rebuttal to the interpretation submitted by the Director. Contrary to the administrative law judge's analysis, however, the regulation did not entitle employer to submit a second reading to rebut claimant's rebuttal reading. The regulations permit each party to submit one physician's interpretation of each x-ray interpretation that the opposing party submits in its affirmative case. 20 C.F.R. §725.414(a)(2)(ii), (a)(3)(ii). The x-ray reading submitted by claimant was not an affirmative-case x-ray reading; it was a reading in rebuttal to the x-ray reading submitted by the Director. Thus, Dr. Scott's negative x-ray reading was not admissible as rebuttal evidence to claimant's x-ray reading. [5]
The administrative law judge alternatively found that, assuming an “employer generally cannot rebut so-called rebuttal evidence submitted by a claimant, ” employer established good cause...
To continue reading
Request your trial