Mullins v. Greater Wise, Inc.

• Decision Date: 24 May 2022
• Docket Number: BRB 20-0548 BLA
• Parties: BILLY MULLINS Claimant-Respondent v. GREATER WISE, INCORPORATED and ROCKWOOD CASUALTY INSURANCE Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
• Court: Court of Appeals of Black Lung Complaints

BILLY MULLINS Claimant-Respondent
v.
GREATER WISE, INCORPORATED and ROCKWOOD CASUALTY INSURANCE Employer/Carrier-Petitioners

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 20-0548 BLA

Court of Appeals of Black Lung

May 24, 2022

Appeal of the Decision and Order Awarding Benefits of Drew A. Swank, Administrative Law Judge, United States Department of Labor.

Catherine A. Karczmarczyk (Penn, Stuart & Eskridge), Bristol, Virginia, for Employer.

Before: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges. BOGGS, Chief Administrative Appeals Judge, and JONES, Administrative Appeals Judge:

DECISION AND ORDER

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Employer appeals Administrative Law Judge (ALJ) Drew A. Swank's Decision and Order Awarding Benefits (2018-BLA-05780) 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 claim filed on January 19, 2016.

The ALJ credited Claimant with 18.34 years of coal mine employment, but found he did not establish at least fifteen of those years took place in underground coal mines or surface coal mines in conditions substantially similar to those in an underground mine. 20 C.F.R. §718.305(b)(1)(i), (2). He therefore found Claimant could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).^[1] Considering entitlement under 20 C.F.R. Part 718, he found Claimant established clinical and legal pneumoconiosis, and a totally disabling respiratory or pulmonary impairment due to pneumoconiosis. 20 C.F.R. §§718.202, 718.203, 718.204(b), (c). Thus he awarded benefits.

On appeal, Employer argues the ALJ erred in finding Claimant established clinical and legal pneumoconiosis.^[2] Neither Claimant nor the Director, Office of Workers' Compensation Programs, filed a response brief.

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.^[3] 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 (1965).

To be entitled to benefits under the Act, 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

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(pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Statutory presumptions may assist claimants in establishing the elements of entitlement if certain conditions are met, but failure to establish any element precludes an award of benefits. See 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).

Part 718 - Pneumoconiosis

We first address Employer's challenge to the ALJ's finding that Claimant established the existence of clinical pneumoconiosis^[4] based on his weighing of the x-ray evidence.^[5] Employer's Brief at 7-9.

Clinical Pneumoconiosis

The ALJ considered nine interpretations of four x-rays dated December 9, 2015, February 22, 2016, February 23, 2017, and April 10, 2019. Decision and Order at 8, 15-16. All of the readings were by physicians dually-qualified as Board-certified radiologists and B readers. Id. The ALJ gave equal weight to the readings based on the physicians' qualifications. Id. at 15. He found the February 22, 2016 x-ray positive for pneumoconiosis, crediting Drs. DePonte's and Miller's positive readings over Dr. Adcock's negative reading.^[6] Id.; Director's Exhibits 11, 17, 18. He found the readings of the remaining x-rays in equipoise because Dr. DePonte read each one as positive for pneumoconiosis, while Dr. Adcock read each one as negative. Decision and Order at 15; Director's Exhibits 16, 18, 19; Claimant's Exhibits 1, 2; Employer's Exhibit 1.

Employer asserts the ALJ merely counted the number of positive readings as opposed to negative readings in finding the February 22, 2016 x-ray positive and did not rationally explain his determination. Employer's Brief at 7-9. We disagree. Contrary to

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Employer's argument, the ALJ properly performed both a qualitative and quantitative analysis of the x-ray evidence, taking into consideration the physicians' qualifications and the number of readings of each film. Sea "B" Mining Co. v. Addison, 831 F.3d 244, 256 (4th Cir. 2016). He permissibly found the February 22, 2016 x-ray positive based on the preponderance of the positive readings by the dually-qualified radiologists. Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir. 1992); Decision and Order at 15-16. Because it is supported by substantial evidence, we affirm the ALJ's finding that the x-ray evidence establishes the existence of clinical pneumoconiosis. 20 C.F.R. §718.202(a)(1).

Further, we affirm the ALJ's findings that the medical opinion evidence establishes the existence of clinical pneumoconiosis and the overall evidence establishes the existence of clinical pneumoconiosis arising out of coal mine employment, as Employer has not challenged these findings on appeal. Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); 20 C.F.R. §§718.202(a)(4), 718.203(b); Decision and Order at 16-17, 20.

Legal Pneumoconiosis

We next address Employer's challenge to the ALJ's finding that Claimant established the existence of legal pneumoconiosis^[7] at 20 C.F.R. §718.202(a)(4). Employer's Brief at 9-13.

To establish legal pneumoconiosis, Claimant must demonstrate he has a chronic lung disease or impairment "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §718.201(b). Further, the United States Court of Appeals for the Fourth Circuit, whose law applies to this claim, has held a miner can establish legal pneumoconiosis by showing coal dust exposure contributed "in part" to his respiratory or pulmonary impairment. See Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322-23 (4th Cir. 2013); Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 311 (4th Cir. 2012); see also Arch on the Green v. Groves, 761 F.3d 594, 598-99 (6th Cir. 2014) (A miner can establish a lung impairment is significantly related to coal mine dust exposure "by showing that his disease was caused 'in part' by coal mine employment.").

The ALJ considered the medical opinions of Drs. Ajjarapu, Fino, and McSharry. Decision and Order at 10-13, 16-20. Dr. Ajjarapu diagnosed legal pneumoconiosis in the

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form of chronic bronchitis due to coal mine dust exposure and tobacco smoking. Director's Exhibits 11, 24. She also opined Claimant has a totally disabling respiratory impairment due, in part, to his work in the coal mines. Director's Exhibit 24. Dr. Fino opined Claimant does not have legal pneumoconiosis, a respiratory impairment, or a respiratory disability. Director's Exhibit 19. Dr. McSharry opined Claimant does not have legal pneumoconiosis based on the airflow limitation shown in the Claimant's spirometry studies; he deemed this limitation unlikely to be the result of coal dust exposure. Director's Exhibit 20. The ALJ found Dr. Ajjarapu's opinion "well-reasoned," while he found Dr. Fino's opinion not well-reasoned or supported and Dr. McSharry's opinion "equivocal." Decision and Order at 16-17. Thus he found Claimant established the existence of legal pneumoconiosis based on Dr. Ajjarapu's opinion. Id.

Employer argues the ALJ relied on an inaccurate smoking history in evaluating the credibility of Dr. Ajjarapu's opinion.^[8] Employer's Brief at 10. Specifically, it contends the ALJ erred in finding Claimant has only a 20- to 30-pack-year smoking history because he failed to consider treatment records from physicians who reported Claimant had "between a 40 and 45 pack year smoking history, as of 2011 and 2012." Id. at 3-6. It also asserts Claimant's hearing testimony establishes "approximately 37 pack-years." Id. at 6-7.

Claimant testified at the hearing that he currently smokes "[a]bout a half a pack a day," but previously smoked "[p]robably a pack a day."^[9] Hearing Tr. at 17. He denied he ever smoked more than a pack a day. Id. He also testified he had been smoking for "[p]robably 30 years;" he began smoking when he was "[a]bout 30," but later conceded "I really don't know when I started to be honest with you." Id. at 17-19. Employer's counsel presented Claimant with his documented smoking histories contained in his numerous treatment records and medical opinions that indicated he smoked a pack and a half per day or two packs per day for forty years.^[10] Id. at 18-20. Claimant denied both that he smoked two packs per day and that he smoked for forty years. Id.

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In his Decision and Order, the ALJ found the record supports a finding that Claimant smoked a pack of cigarettes per day "for 20 to 30 years" but "currently" smokes about a half pack of cigarettes per day. Decision and Order at 8. He stated:

The accounts of the Claimant's smoking history are generally consistent. The Claimant told Dr. Ajjarapu that he had smoked a half pack of cigarettes a day since 1996. (DX 11). He told Dr. Fino that he smoked a pack of cigarettes a day for 20 years, and had cut back to 2 cigarettes a day for the past 5 years. (DX 19). At the hearing, the Claimant stated that he was smoking about a half pack a day, and smoked about a pack a day before that, for probably 30 years. (Tr. 17, 19-20).

I find that it is not possible to determine the length or extent of the Claimant's smoking history with precision, but the record supports a conclusion that he has smoked a pack a day for 20 to 30

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