Shores v. Donaldson Mining Co., BRB 09-0540 BLA
| Decision Date | 28 July 2010 |
| Docket Number | BRB 09-0540 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ROBERT D. SHORES Claimant-Respondent v. DONALDSON MINING COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Awarding Benefits of Thomas M Burke, Administrative Law Judge, United States Department of Labor.
Blair V. Pawlowski (Pawlowski, Bilonick & Long), Ebensburg Pennsylvania, for claimant.
William S. Mattingly (Jackson Kelly PLLC), Morgantown, West Virginia, for employer.
Rita A. Roppolo (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, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order - Awarding Benefits (2008-BLA-5076) of Administrative Law Judge Thomas M. Burke with respect to a miner's claim filed on October 27 2006, 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) (to be codified at 30 U.S.C. §§921(c)(4) and 932(l)) (the Act). The administrative law judge found, based on the parties' stipulation, that claimant established forty-three years of coal mine employment and adjudicated this claim pursuant to 20 C.F.R. Part 718. In addition, the administrative law judge determined that although claimant did not establish the existence of legal pneumoconiosis, he established the existence of clinical pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(1), (4), 718.203(b), and a totally disabling respiratory impairment due to coal workers' pneumoconiosis (CWP) at 20 C.F.R. §718.204(b)(2)(iv), (c). Accordingly, the administrative law judge awarded benefits.
Employer argues that the administrative law judge erred in determining that Dr. Lenkey diagnosed clinical pneumoconiosis. In addition, employer asserts that it should be dismissed as the responsible operator, as Dr. Lenkey's report did not constitute a complete pulmonary evaluation under 30 U.S.C. §923(b), as implemented by 20 C.F.R. §725.406, and therefore, it was denied a “meaningful hearing.” Further, employer states that the administrative law judge did not properly weigh all of the evidence of record in assigning greatest weight to Dr. Schaaf's opinion regarding the existence of clinical pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a), 718.203. Claimant responds, urging affirmance of the award of benefits. In his limited response brief, the Director, Office of Workers' Compensation Programs (the Director), states that he satisfied his obligation to provide claimant with a complete pulmonary evaluation. [1]
By Order dated March 30, 2010, the Board provided the parties with the opportunity to address the impact on this case, if any, of Section 1556 of Public Law No. 111-148, which amended the Act with respect to the entitlement criteria for certain claims. [2] Shores v. Donaldson Mining Co., BRB No. 09-0540 BLA (Mar. 30, 2010)(unpub. Order). The Director, claimant, and employer have responded.
The Director states that Section 1556 will not affect this case if the Board affirms the administrative law judge's award of benefits. However, the Director further asserts that, if the Board does not affirm the administrative law judge's findings, remand for consideration under Section 411(c)(4), 30 U.S.C. §921(c)(4), and for the possible submission of additional evidence, would be required, as the present claim was filed after January 1, 2005 and the administrative law judge credited claimant with more than fifteen years of coal mine employment. Claimant responds, arguing that the recent amendments to the Act are applicable to his claim because he has fifteen or more years of coal mine employment and has been diagnosed with pneumoconiosis and a totally disabling pulmonary impairment. Employer indicates that the recent amendments may affect this claim based on the claimant's coal mine employment history. Therefore, employer asserts that due process requires the claim to be remanded for the opportunity to develop evidence addressing the new standards created. Additionally, employer maintains that retroactive application of the amendments is unconstitutional because it denies the operator due process and constitutes an unconstitutional taking of private property.
To determine whether this case must be remanded for consideration of the invocation of the rebuttable presumption of total disability due to pneumoconiosis, we will first address employer's allegations of error regarding the administrative law judge's findings at 20 C.F.R. §§718.202(a), 718.203(b), and 718.204(c).
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 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 Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim filed pursuant to 20 C.F.R. Part 718, claimant must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204; Gee v. W.G. Moore & Sons, 9 BLR 14 (1986)(en banc). Failure to establish any one of these elements precludes entitlement. See Trent v. Director, OWCP, 11 BLR 126 (1987); Perry v. Director, OWCP, 9 BLR 11 (1986)(en banc).
The administrative law judge initially noted that the three x-rays of record, dated February 22, 2007, October 18, 2007, and January 9, 2008, were relatively contemporaneous. Decision and Order at 7. The administrative law judge stated that the x-rays were read as positive for pneumoconiosis by Dr. Ahmed, a Board-certified radiologist and B reader, and by Drs. Muchnok and Schaaf, B readers, and as negative by Dr. Wiot, a Board-certified radiologist and B reader. [4] Id.; see Director's Exhibit 12; Claimant's Exhibits 1, 3; Employer's Exhibit 3. The administrative law judge credited the positive readings as “constituting the preponderance of the evidence.” Decision and Order at 7. The administrative law judge noted that the rationale offered by Dr. Wiot in support of his negative reading was not “sufficient to deny the presence of opacities evidencing pneumoconiosis under the ILO criteria.” [5] Id. at 8. The administrative law judge also observed that Dr. Schaaf testified that irregular opacities can be consistent with CWP, that CWP can be diagnosed without upper lobe disease, and that CWP may exist in the presence or absence of honeycombing. Id.; see Claimant's Exhibit 6.
Regarding the medical opinion and CT scan evidence, the administrative law judge stated that all of the physicians agreed that claimant's x-rays and CT scans were abnormal and showed a severe disease process, but they disagreed about the identity and cause of the disease. [6] Decision and Order at 8; see Director's Exhibit 9; Claimant's Exhibits 1-2, 6; Employer's Exhibits 4, 11, 17-18. The administrative law judge indicated that Drs. Wiot and Altmeyer concluded that claimant has idiopathic pulmonary fibrosis (IPF), or possible unilateral diffuse pleural fibrosis (UPF), while Drs. Lenkey and Schaaf opined that claimant has CWP. Id. However, the administrative law judge discredited Dr. Wiot's opinion, relying on Dr. Schaaf's opinion, that although pneumoconiosis often begins in the upper lung zones, the presence of that pattern is not necessary to diagnose the disease. Id. at 9. In addition, the administrative law judge determined that Dr. Wiot's conclusion, that claimant does not have opacities in his upper lung zones, is undermined by the x-ray interpretations of Drs. Ahmed, Muchnok, and Schaaf, who observed opacities in all six lung zones. Id.
Relying on Dr. Schaaf's opinion, the administrative law judge also determined that irregular opacities can be associated with CWP, and that CWP may exist with or without honeycombing. Decision and Order at 9. In addition, the administrative law judge found that the Department of Labor (DOL) form, regarding the presence or absence of pneumoconiosis, presupposes that opacities consistent with CWP may be irregular and exist in the upper lung zones. Id. at 8 n.3. Based on the “absolutism” of Dr. Wiot's opinion and the x-ray interpretations of the other physicians, the administrative law judge concluded that Dr. Wiot's opinion, that claimant's impairment is IPF, was undermined. Id. at 9.
Similarly, the administrative law judge gave less weight to Dr. Altmeyer's opinion because, like Dr. Wiot, he opined that claimant did not have coal workers' pneumoconiosis, based on the shape and location of the opacities. Decision and Order at 10; see Employer's Exhibits 4, 18. The administrative law judge also noted Dr. Altmeyer's acknowledgement that it is possible to have IPF and pneumoconiosis and that IPF could cloud x-ray images and conceal underlying lung disease. Decision and Order at 10 n.5. Further, the administrative law judge stated that Dr. Schaaf questioned Dr. Altmeyer's reliance on the presence of a restrictive impairment to exclude pneumoconiosis, since pneumoconiosis can cause a restrictive impairment without an...
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