Shull v. Zeigler Coal Co.
| Decision Date | 23 December 2002 |
| Docket Number | BRB 02-0243 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | MARGARET SHULL Widow of LAWSON SHULL Claimant-Respondent v. ZEIGLER COAL 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UNPUBLISHED OPINION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 on Remand of Rudolf L. Jansen Administrative Law Judge, United States Department of Labor.
Joseph J. Reiswerg, Indianapolis, Indiana, for claimant.
Mark E. Solomons and W. William Prochot (Greenberg Traurig, LLP) Washington, D.C., for employer.
Helen H. Cox (Eugene Scalia, Acting 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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Remand (96-BLA-1418) of Administrative Law Judge Rudolf L. Jansen (the administrative law judge) awarding benefits on a duplicate claim[1]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).[2] This case is before the Board for the third time. In the original Decision and Order, the administrative law judge credited the miner with nineteen and one-half years of coal mine employment and adjudicated this duplicate claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found the newly submitted evidence sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4) (2000). Consequently, the administrative law judge found the evidence sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).[3] The administrative law judge also found the evidence sufficient to establish that the miner's pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b) (2000). Further, the administrative law judge found the evidence sufficient to establish total disability pursuant to 20 C.F.R §718.204(c)(4) (2000) and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b) (2000).[4] Accordingly, the administrative law judge awarded benefits to commence as of October 1, 1992, the beginning of the month in which the instant claim was filed. In response to employer's appeal, the Board affirmed the administrative law judge's unchallenged length of coal mine employment finding. The Board also affirmed the administrative law judge's findings at 20 C.F.R. §§718.202(a)(1) (2000), [5]718.203(b) (2000) and 725.309 (2000).[6] However, the Board vacated the administrative law judge's finding that the evidence is sufficient to establish total disability at 20 C.F.R. §718.204(c)(4) (2000), and remanded the case for further consideration of the evidence. Further, the Board vacated the administrative law judge's finding that the evidence is sufficient to establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(b) (2000). The Board instructed the administrative law judge to reconsider whether the evidence is sufficient to establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(b) (2000), if he found the evidence sufficient to establish total disability at 20 C.F.R. §718.204(c) (2000). Shull v. Zeigler Coal Co., BRB No. 98-0203 BLA (Dec. 16, 1998)(unpub.).
On first remand, the administrative law judge found the evidence sufficient to establish total disability at 20 C.F.R. §718.204(c) (2000) and total disability due to pneumoconiosis at 20 C.F.R. §718.204(b) (2000). Accordingly, the administrative law judge again awarded benefits to commence as of October 1, 1992. In disposing of employer's second appeal, the Board rejected employer's contentions with respect to the administrative law judge's refusal to grant employer's request to submit new evidence in support of its prior challenge to the administrative law judge's findings that the evidence had established the existence of pneumoconiosis and a material change in conditions. Specifically, the Board rejected employer's contention that the administrative law judge erred in refusing to grant its request to reopen the record on remand to allow employer to submit evidence on the issue of whether pneumoconiosis is a progressive disease in light of a "change in law" by the United States Court of Appeals for the Seventh Circuit, within whose jurisdiction this case arises, in Spese.[7] The Board also rejected employer's contention that the administrative law judge's denial of its right to respond to this "change in law" violated employer's due process rights and, therefore, requires that liability should transfer to the Black Lung Disability Trust Fund. Further, the Board rejected employer's contention that the case should be remanded to allow the administrative law judge to consider the fact that the public record, via the comments submitted in response to the new proposed regulations at 20 C.F.R. §725.309, now establish that pneumoconiosis is not a progressive disease. The Board declared that its previous holding stands as the law of the case on this issue, and no exception to that doctrine has been demonstrated by employer. However, the Board vacated the administrative law judge's findings that the evidence is sufficient to establish total disability at 20 C.F.R. §718.204(c) (2000) and that the evidence is sufficient to establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(b) (2000). The Board instructed the administrative law judge to reconsider whether total disability due to pneumoconiosis is established at 20 C.F.R. §718.204(b) (2000) if he finds that total disability is established at 20 C.F.R. §718.204(c) (2000). The Board also vacated the administrative law judge's award of benefits from the date of filing, October 1992, and remanded the case for reconsideration of all relevant evidence in determining the date of onset of disability at 20 C.F.R. §725.503 (2000), if necessary. Shull v. Zeigler Coal Co., BRB No. 00-0378 BLA (Dec. 27, 2000)(unpub.).
On the most recent remand, the administrative law judge found the evidence sufficient to establish total disability at 20 C.F.R. §718.204(b). Further, the administrative law judge found the evidence sufficient to establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(c). Accordingly, the administrative law judge again awarded benefits to commence as of October 1, 1992, the beginning of the month that the claim was filed.
On appeal, employer challenges the administrative law judge's finding that the evidence is sufficient to establish total disability at 20 C.F.R. §718.204(b). Employer also challenges the administrative law judge's finding that the evidence is sufficient to establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(c). Further, employer challenges the administrative law judge's finding that claimant is entitled to benefits beginning in October 1992, the month in which the claim was filed. Lastly, employer contends that the administrative law judge should have applied the doctrine of collateral estoppel to the issue of the existence of pneumoconiosis since Administrative Law Judge Robert L. Hillyard found the evidence insufficient to establish the existence of pneumoconiosis in the survivor's claim. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Board to reject employer's challenge to the validity of the regulations at 20 C.F.R. §§718.201(c), 718.204(a) and 725.503(b). The Director also urges the Board to reject employer's contention that the administrative law judge should have applied the doctrine of collateral estoppel to the issue of the existence of pneumoconiosis in this case.[8] Claimant[9] responds by letter, concurring with the arguments advanced by the Director and requesting their incorporation as the "Miner's Response" by reference.
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).
Initially employer contends that the administrative law judge erred in finding the evidence sufficient to establish total disability at 20 C.F.R. §718.204(b). Specifically, employer argues that the administrative law judge again failed to comply with the Board's remand instructions. In its 2000 Decision and Order, the Board vacated the administrative law judge's prior finding that the evidence is sufficient to establish total disability at 20 C.F.R. §718.204(c) (2000) because the administrative law judge did not weigh all of the relevant contrary evidence and erred in his weighing of the opinions of Drs. Dwyer and Lenyo. The Board thus remanded the case for reconsideration.[10] Shull v. Zeigler Coal Co., BRB No. 00-0378 BLA, slip op. at 10 (Dec. 27, 2000)(unpub.). In his decision on remand, the administrative law judge considered the opinions of Drs. Drummy, Dwyer, Pangan, Paul, Lenyo, Myers and Theertham.[11] Whereas Drs. Dwyer, Lenyo and Theertham opined that the miner suffered from a disabling respiratory impairment, Director's Exhibits 8, 27, 29, 37, Dr. Paul opined that the miner did not suffer from a disabling respiratory impairment, Director's...
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