McCoy v. Lewis Coal Company, Inc.
| Decision Date | 22 August 2002 |
| Docket Number | BRB 01-0953 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | HERSHEL U. McCOY Claimant-Respondent v. LEWIS COAL COMPANY, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY 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UNPUBLISHED OPINION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 Awarding Medical Benefits in Part of Pamela Lakes Wood, Administrative Law Judge, United States Department of Labor.
Susan D. Oglebay, Castlewood, Virginia, for claimant.
Natalie D. Brown (Jackson & Kelly PLLC), Lexington Kentucky, for, employer.
Jeffrey S. Goldberg (Eugene Scalia, Solicitor of Labor Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Medical Benefits in Part (00-BLA-0684) of Administrative Law Judge Pamela Lakes Wood on a Medical Benefits Only (MBO) claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act).[1] The administrative law judge found that the sole issue in this case was whether claimant was entitled to the payment of certain medical bills by employer in accordance with 20 C.F.R. §725.701 as amended and the decisions of the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, in Gulf & Western Industries v Ling, 176 F.3d 226, 21 BLR 2-570 (4th Cir. 1999); General Trucking Corp. v. Salyers, 175 F.3d 322, 21 BLR 2-565 (4th Cir. 1999); Doris Coal Co. v. Director, OWCP [Stiltner], 938 F.2d 492, 15 BLR 2-135 (4th Cir. 1991).[2] Decision and Order at 8. Claimant and the Director, Office of Workers' Compensation Programs (the Director) agreed that it would be appropriate for claimant to seek reimbursement for the medical expenses summarized at Director's Exhibit 41, but that any further medical expenses which might be part of the record are not compensable. See Director's Exhibits 31, 41; Transcript of Hearing at 10-11; Order of Administrative Law Judge dated August 31, 2000. The administrative law judge found, based upon her review of the arguments of the parties and all the evidence, "that most but not all, of the disputed [medical] treatment is compensable, " Decision and Order at 11, and thus ordered employer to make reimbursement for various medicines and office visits.
On appeal, employer argues that the administrative law judge erred in applying the revised regulation at Section 725.701 to this case. Employer also argues that the administrative law judge erred in relying on the same type of burden shifting analysis that the Fourth Circuit rejected in Salyers and Ling when she found claimant entitled to medical benefits based on an irrebuttable presumption, i.e., that claimant's treatment for chronic bronchitis was aggravated by pneumoconiosis and that all of claimant's pulmonary problems were interrelated. Rather, employer contends that Ling and Salyers require claimant to affirmatively prove that there is a connection between his medical treatment and his pneumoconiosis once employer has produced evidence that the treatment is not for pneumoconiosis. Specifically, employer contends that the administrative law judge erred in rejecting the opinions of Drs. Castle, Tuteur and Sargent, who diagnosed clinical pneumoconiosis, but explained that the treatment provided claimant was for bronchitis and infections related to claimant's cigarette smoking habit, not to his coal dust exposure. Employer further argues that the administrative law judge erred in invoking the "collateral source" rule by requiring employer to reimburse claimant for expenses that were not due or paid by him or which were paid or reduced by a third party. Employer contends that the "collateral source" rule is inapplicable to black lung claims. Claimant, in response, urges that the administrative law judge's Decision and Order be affirmed.
The Director responds for the limited purpose of challenging employer's assertion that the newly revised regulation at Section 725.701 is not applicable to the instant claim. The Director contends that employer has provided no legal basis for such an assertion and that the Board should, therefore, summarily reject it. Further, the Director contends, that inasmuch as the amended regulation at Section 725.701 merely codifies existing case law in the Fourth Circuit by establishing a presumption of medical benefits coverage for the treatment of a miner's respiratory or pulmonary problems; Section 725.701(e), once invoked, merely shifts the burden of production (but not persuasion) to the employer to product credible evidence rebutting the presumption, and does not constitute a change in the law or alter the parties expectations.
Replying to the Director's response brief, employer asserts that the newly revised regulations are not applicable to the instant case because revised Section 725.701 is contrary to established Fourth Circuit precedent inasmuch as the revised regulation does not require claimant to bear the burden of establishing that his medical condition is related to pneumoconiosis. See Ling, supra; Salyers, supra; Stiltner, supra. Employer argues that while the Fourth Circuit in Ling and Salyers reiterated the presumption established in Stiltner, i.e., that claimants seeking reimbursement for medical expenses are entitled to a presumption that their pulmonary treatment is related to pneumoconiosis, the court also held that once employer produces evidence showing that the treatment is not related to pneumoconiosis, claimant must then affirmatively establish that the treatment is related to pneumoconiosis. Employer asserts that in contrast to the holdings in Ling and Salyers, the revised regulation omits the critical part of the decisions that imposes the burden of persuasion on claimant and requires employer to produce credible evidence that the miner's treatment was not related to pneumoconiosis, thus, improperly shifting the burden of proof to employer. Employer's Reply Brief at 2-4. Employer further asserts that the revised regulation, unlike the Fourth Circuit decision in Ling, fails to explicitly state that the burden of proof rests with claimant; the regulation limits what types of evidence employers may submit, and raises the issue of total disability, which has no relevance in MBO cases. Employer's Reply Brief at 4. Employer also asserts that the newly revised regulation is, in this case, impermissibly being applied retroactively. Lastly, employer asserts that the Director exceeded its authority in promulgating these new regulations inasmuch as the Act grants "no regulatory authority to enlarge coverage beyond what the statute specifically provides." Employer's Reply Brief at 6.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
We turn first to employer's argument regarding the applicability of revised Section 725.701 to this case. The United States Courts of Appeals have generally given special deference to the Director's position on issues involving the interpretation or the application of the Act because the Director is charged with the administration of the Act. See Director, OWCP v. Palmer Coking Coal Co. [Manowski], 867 F.2d 552, 555 (9th Cir. 1989); Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 10 BLR 2-119 (6th Cir. 1987); Peabody Coal Co. v. Blankenship, 773 F.2d 173 (7th Cir. 1985); Bethlehem Mines Corp. v. Simila, 766 F.2d 128 (3d Cir. 1985). Further, the Fourth Circuit has held that "[t]he Director's interpretation of the regulations is entitled to substantial deference from this court." Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90, 2-92 (4th Cir. 1992), citing BethEnergy Mines, Inc. v. Pauley, 501 U.S. 680, 15 BLR 2-155 (1991), aff'g 890 F.2d 1295, 13 BLR 2-162 (3d Cir. 1989) and Adkins v. Director, OWCP, 878 F.2d 151, 12 BLR 2-313 (4th Cir. 1989); cf. Gray v. Director, OWCP, 943 F.2d 513, 15 BLR 2-214 (4th Cir. 1991); Eplion v. Director, OWCP, 794 F.2d 935, 9 BLR 2-52 (4th Cir. 1986). We, therefore, defer to the Director's interpretation of Section 725.701 and hold that the newly revised regulation is consistent with precedent established in the Fourth Circuit regarding claims for medical benefits only. See Ling, supra; Salyers, supra; Stiltner, supra; see also Nat'l Mining Ass'n v. United States Dep't of Labor, F.3d, 2002 WL 1300007 (D.C. Cir., June 14, 2002), aff'g in part and rev'g in part, Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C. 2001). Accordingly, we reject employer's assertion that the revised regulation at Section 725.701 is not applicable to this case.
Employer next contends that the administrative law judge's analysis of the evidence does not comply with controlling authority. Specifically, employer asserts that the administrative law judge erred in presuming that all of claimant's pulmonary problems were related to pneumoconiosis. Employer argues that the administrative law judge improperly rejected all evidence that claimant's bronchitis was not related to pneumoconiosis because she...
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