R.M. v. Lucky Star Coal Co.
| Decision Date | 29 October 2009 |
| Docket Number | BRB 09-0200 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | R.M. Widow of G.M. Claimant-Petitioner v. LUCKY STAR COAL COMPANY Employer-Respondent 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UNPUBLISHED OPINION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 Administrative Law Judge Joseph E. Kane, United States Department of Labor.
Edmond Collett (Edmond Collett, P.S.C.), Hyden, Kentucky, for claimant.
Lois A. Kitts and James M. Kennedy (Baird and Baird, P.S.C.) Pikeville, Kentucky, for employer.
Before: McGRANERY, HALL and BOGGS, Administrative Appeals Judges.
DECISION and ORDER
BETTY JEAN HALL, Administrative Appeals Judge:
Claimant appeals the Decision and Order - Denying Benefits (2007-BLA-05445) of Administrative Law Judge Joseph E. Kane with respect to a survivor’s 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 credited the miner with seven years of coal mine employment and considered the claim, filed on March 31, 2006, pursuant to the regulations set forth in 20 C.F.R. Part 718. The administrative law judge determined that claimant did not establish that the miner was suffering from pneumoconiosis pursuant to 20 C.F.R. §718.202(a). Accordingly, the administrative law judge denied benefits.
Claimant argues on appeal that the administrative law judge did not properly weigh the evidence relevant to Section 718.202(a)(1), (4). Employer has responded and urges the Board to affirm the denial of benefits. The Director, Office of Workers’ Compensation Programs, has not filed a response brief in this appeal. [2]
The Board’s scope of review is defined by statute. The administrative law judge’s Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with law. [3] 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).
To establish entitlement to survivor’s benefits pursuant to 20 C.F.R. Part 718, claimant must demonstrate by a preponderance of the evidence that the miner had pneumoconiosis arising out of coal mine employment and that his death was due to pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.205; Trumbo v. Reading Anthracite Co ., 17 BLR 1-85 (1993). For survivor’s claims filed on or after January 1, 1982, death will be considered due to pneumoconiosis if the evidence establishes that the miner’s death was due to pneumoconiosis or that pneumoconiosis was a substantially contributing cause or factor leading to the miner’s death. 20 C.F.R. §718.205(c)(1), (2), (4). The United States Court of Appeals for the Sixth Circuit has held that pneumoconiosis is a substantially contributing cause of death if it hastens the miner’s death. Griffith v. Director, OWCP, 49 F.3d 184, 186, 19 BLR 2-111, 2-116 (6th Cir. 1995); Brown v. Rock Creek Mining Co ., 996 F.2d 812, 817, 17 BLR 2-135, 2-140 (6th Cir. 1993); see 20 C.F.R. §718.205(c)(5).
Pursuant to Section 718.202(a)(1), the administrative law judge considered readings of five x-rays, all of which were interpreted by Dr. Hayes, who is a Board-certified radiologist and B reader. He interpreted x-rays dated April 2, 2004, November 10, 2005, November 12, 2005, December 2, 2005, and January 4, 2005, as negative for pneumoconiosis. Decision and Order at 5; Employer’s Exhibits 1-3. Because there were no positive readings, the administrative law judge rationally found that claimant did not establish the existence of pneumoconiosis at Section 718.202(a)(1). Staton v. Norfolk & Western Ry. Co., 65 F.3d 55, 59, 19 BLR 2-271, 2-279-80 (6th Cir. 1995); Woodward v. Director, OWCP, 991 F.2d 314, 321, 17 BLR 2-77, 2-87 (6th Cir. 1993). In addition, the administrative law judge acted within his discretion in determining that the x-ray readings contained in the miner’s hospitalization and treatment records were insufficient to establish the existence of pneumoconiosis, as they were not interpreted for the presence or absence of the disease. Decision and Order at 5; Director’s Exhibits 14, 15. Consequently, claimant’s arguments that the administrative law judge improperly relied on the readers’ credentials, merely counted the negative readings, and “may have ‘selectively analyzed”’ the readings, lack merit. Claimant’s Brief at 3. We therefore affirm the administrative law judge’s finding under Section 718.202(a)(1).
Pursuant to Section 718.202(a)(4), the administrative law judge considered the medical opinion evidence and the miner’s hospital and treatment records. These records detail the miner’s treatment for chronic obstructive pulmonary disease (COPD), congestive heart failure, malnutrition, hypertension and abdominal fistulas. Director’s Exhibits 14, 15. Dr. Koura, the miner’s treating physician, recorded a diagnosis of COPD in his treatment notes. [4] Director’s Exhibit 14. In responses to a questionnaire submitted to him by claimant’s attorney, Dr. Koura indicated that the miner suffered from a pulmonary disease related to coal dust inhalation, based upon the miner’s history of exposure, symptoms of dyspnea, and scarring visible on x-rays. Director’s Exhibit 13. Dr. Repsher, who is a Board-certified pulmonologist, reviewed the miner’s medical records and concluded in his written report that even if the miner had pneumoconiosis, it did not cause any impairment. Employer’s Exhibit 5. At his subsequent deposition, Dr. Repsher testified that the records that he reviewed contained no evidence of either legal or clinical pneumoconiosis. Employer’s Exhibit 6 at 8. Dr. Rosenberg, also a Board-certified pulmonologist, reviewed the miner’s medical records and determined in his written report that the miner did not have medical or legal pneumoconiosis. Employer’s Exhibit 7. Dr. Rosenberg was deposed and reiterated his conclusion that the miner did not suffer from any pulmonary disease related to coal dust exposure. [5] Employer’s Exhibit 8 at 12-13, 15, 16.
The administrative law judge found that the miner’s hospital and treatment records did not support a finding of pneumoconiosis, as they contained no diagnosis of clinical pneumoconiosis or a respiratory or pulmonary disease related to coal dust exposure. Decision and Order at 6. Regarding the medical opinion evidence, the administrative law judge noted that, in determining the weight to be accorded to each opinion, treating physician status, and the physicians’ respective qualifications, are factors to be considered. Id. The administrative law judge concluded:
In the instant case, and while Dr. Koura was the [m]iner’s treating physician, I find his opinion to be neither well-reasoned nor well-documented. I do not find it worthy of as much weight as the opinions of Drs. Repsher and Rosenberg. Based upon the medical opinions of the latter two physicians, I find that the evidence fails to establish that the Miner suffered from coal worker’s pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Id. at 7.
On appeal, claimant indicates that the Board has held that a documented opinion is one in which the physician has set forth the bases for his diagnoses. Claimant also notes that the Board has held that a report may be adequately documented if it is based upon such items as the miner’s history, an examination, and the miner’s symptoms. Claimant then states, “[i]n light of these decisions[, ] it can be concluded that the report and opinion of Dr. Koura is [sic] well-reasoned[;] therefore, Judge Kane should not have rejected it for the reasons he provided.” Claimant’s Brief at 4. Claimant further contends that an administrative law judge may not discredit the opinion of a physician whose report is based upon an x-ray interpretation that is contrary to the administrative law judge’s findings or because the record contains subsequent negative readings. Claimant also maintains that the administrative law judge substituted his opinion for that of the medical experts. Lastly, claimant alleges that the administrative law judge failed to address Dr. Koura’s status as the miner’s treating physician. [6]
In order for the Board to ascertain whether a finding challenged on appeal is rational and supported by substantial evidence, the administrative law judge must identify the basis for his or her finding, or it must be readily ascertainable from the administrative law judge’s Decision and Order. 20 C.F.R. §802.301(a); see Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042, 14 BLR 2-1 (6th Cir. 1990); Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983). In addition, the Administrative Procedure Act (APA), 5 U.S.C. §554 et seq., as incorporated into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and U.S.C. §932(a), requires that every adjudicatory decision be accompanied by a statement of “findings and conclusions and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented[.]” 5 U.S.C. §557(C)(3)(a); see Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989). In the present case, the administrative law judge provided no explanation for his finding that Dr. Koura’s opinion was not well-reasoned or well-documented and, therefore, was entitled to less weight than the opinions of Drs. Repsher and Rosenberg. Decision and Order at 7. Thus, we cannot determine whether the administrative law judge’s finding is rational and supported by substantial evidence.
We must vacate, therefore, the administrative law judge’s determination that claimant did not establish the existence of pneumoconiosis at Section 718.202(a)(4) and remand this case to...
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