McQueen v. N. Fork Coal Corp.
| Docket Number | BRB 22-0285 BLA |
| Decision Date | 11 August 2023 |
| Parties | RICKY D. MCQUEEN Claimant-Respondent v. NORTH FORK COAL CORPORATION c/o ARN, INCORPORATED and BRICKSTREET MUTUAL INSURANCE GROUP INCORPORATED A/K/A ENCOVA MUTUAL INSURANCE GROUP Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Corrected Decision and Order Awarding Benefits of Scott R. Morris, Administrative Law Judge, United States Department of Labor.
Joseph D. Halbert and Jarrod R. Portwood (Shelton, Branham, & Halbert PLLC), Lexington, Kentucky, for Employer and its Carrier.
Before: BUZZARD, ROLFE, and JONES, Administrative Appeals Judges.
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Scott R. Morris's Corrected Decision and Order Awarding Benefits (2020-BLA-05233) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §901-944 (2018) (Act). This case involves a miner's subsequent claim filed on November 26 2018.[1]
The ALJ credited Claimant with 14.09 years of underground coal mine employment and thus found he could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[2]Considering entitlement under 20 C.F.R. Part 718, the ALJ found Claimant established legal pneumoconiosis[3] and a totally disabling respiratory or pulmonary impairment due to legal pneumoconiosis. 20 C.F.R. §§718.202, 718.204(b), (c). Thus, Claimant established a change in an applicable condition of entitlement,[4] 20 C.F.R. §725.309, and the ALJ awarded benefits.
On appeal, Employer contends the ALJ erred in finding Claimant established total disability and legal pneumoconiosis. Neither Claimant nor the Director, Office of Workers' Compensation Programs, filed a substantive response.
The Benefits Review Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 362 (1965).
Without the Section 411(c)(3) or (4) presumptions, Claimant must establish disease (pneumoconiosis);[6] 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 one 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); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
A miner is 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). A claimant may establish total disability based on qualifying pulmonary function studies, qualifying arterial blood gas studies,[7] 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). The ALJ must weigh all relevant supporting evidence against all relevant contrary evidence. See Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff'd on recon., 9 BLR 1-236 (1987) (en banc). Qualifying evidence under any category "shall establish a miner's total disability" absent "contrary probative evidence." 20 C.F.R. §718.204(b)(2). The ALJ found Claimant established total disability based on the pulmonary function and blood gas studies, the medical opinions, and the weight of the evidence as a whole.[8] Decision and Order at 22.
The ALJ considered five pulmonary function studies, all of which were qualifying for total disability.[9] Decision and Order at 12-13. Dr. Ajjarapu's January 8, 2019 study produced qualifying pre-bronchodilator and post-bronchodilator results. Director's Exhibit 15 at 11. Dr. Dahhan's May 13, 2019 study produced qualifying pre- bronchodilator and post-bronchodilator results. Director's Exhibit 25 at 7. The July 17, 2019 study conducted at St. Charles Respiratory Center produced qualifying pre-bronchodilator results.[10] Director's Exhibit 20. Dr. Schuldheisz's April 13, 2020 study produced qualifying pre-bronchodilator results.[11] Claimant's Exhibit 2. Dr. Sharma's July 27, 2020 study produced qualifying pre-bronchodilator and post-bronchodilator results. Claimant's Exhibit 3 at 10.
Although the ALJ found the January 8, 2019, May 13, 2019 and July 17, 2019 studies invalid[12] based on Dr. Vuskovich's opinion,[13] he noted Dr. Vuskovich had not addressed the validity of the remaining two qualifying studies from April 13, 2020 and July 27, 2020, and that Dr. Dahhan specifically validated the July 27, 2020 study. Decision and Order at 12-13. Thus, relying on the only valid studies of record dated April 13, 2020 and July 27, 2020, both of which are qualifying, the ALJ concluded Claimant established total disability pursuant to 20 C.F.R. §718.204(b)(2)(i).[14] Id.
Employer correctly contends the ALJ failed to address Dr. Vuskovich's opinion that the July 27, 2020 pulmonary function study is invalid and weigh it against Dr. Dahhan's opinion that the study is valid.[15] Employer's Brief at 9; Employer's Exhibit 4. However, even if the ALJ were to find the study invalid, and thus not probative as to the "presence or absence" of an impairment, see 20 C.F.R. §718.103(c), his finding of total disability at 20 C.F.R. §718.204(b)(2)(i) remains supported by one valid, qualifying and uncontradicted study. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (appellant must explain how the "error to which [it] points could have made any difference"); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984). As Employer does not challenge the validity of the qualifying April 13, 2020 study, we affirm the ALJ's finding that Claimant established total disability based on the pulmonary function study evidence. 20 C.F.R. §718.204(b)(2)(i).
The ALJ considered three blood gas studies. Decision and Order at 13-14. Dr. Ajjarapu's December 19, 2018 study had qualifying values at rest, Dr. Dahhan's May 13, 2019 study had qualifying values at rest and non-qualifying values after exercise, and Dr. Sharma's July 27, 2020 study had qualifying values at rest and after exercise. Director's Exhibits 15, 25; Claimant's Exhibit 3. The ALJ determined all of the resting studies had qualifying values and the most recent exercise study also had qualifying values. He therefore concluded Claimant established total disability by the blood gas study evidence. 20 C.F.R. §718.204(b)(2)(ii); Decision and Order at 14. We affirm this finding as unchallenged. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 13-14.
The ALJ also considered four medical opinions.[16] Decision and Order at 14-22. Dr. Ajjarapu conducted the Department of Labor (DOL) complete pulmonary evaluation of Claimant on December 19, 2018. Director's Exhibit 15. She opined Claimant's December 19, 2018 pulmonary function study results[17] showed a severe pulmonary impairment and his blood gas study showed severe resting hypoxia. Id. at 7. She further opined he is totally disabled and could not continue his previous coal mine employment. Id.
Dr Dahhan examined Claimant on May 13, 2019 and reviewed his medical records. Director's Exhibit 25. He opined Claimant has a totally disabling respiratory impairment based on the objective testing. Id. at 5. Specifically, during his deposition, Dr. Dahhan explained Claimant's pulmonary function results showed a restrictive defect and reiterated his opinion that Claimant is totally disabled. Employer's Exhibit 1 at 12-15. In an August 20, 2020 supplemental report, he also explained Claimant has "a restrictive ventilatory impairment that is associated with resting and exercise induce[d] hypoxemia." Employer's Exhibit 5 at 2.
Dr. Sharma examined Claimant on July 27, 2020, and opined Claimant's pulmonary function study results showed a restrictive pattern and that Claimant had a significant respiratory impairment based on his FEV1 value which was 46% of predicted. Claimant's Exhibit 3 at 3-4. Relying on the American Medical Association Guidelines to Permanent Impairment, he diagnosed a class IV impairment based on Claimant's pulmonary function study results. Id. at 4. He opined Claimant could not return to his last coal mine work based on his "significant respiratory impairment." Id. at 5.
Dr. Vuskovich reviewed Claimant's medical records. Employer's Exhibits 2, 4. After invalidating four of the five qualifying pulmonary function studies discussed previously, he opined "coal mine dust exposure was not a substantially contributing cause of any current disabling pulmonary impairment." Employer's Exhibit 2 at 19-20. He also opined that with weight loss and smoking cessation, Claimant's health would significantly improve and that he would likely be able to return to his last coal mine work from a pulmonary perspective. Id. at 20.
The ALJ found Drs. Ajjarapu, Dahhan, and Sharma agree Claimant is totally disabled by a respiratory or pulmonary impairment while Dr. Vuskovich did not discuss whether...
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