Siples v. Brazil Coal & Clay Corp., BRB 18-0306 BLA
| Court | Court of Appeals of Black Lung Complaints |
| Decision Date | 29 August 2019 |
| Docket Number | 18-0487 BLA,BRB 18-0306 BLA |
| Parties | PHYLLIS SIPLES (Widow of and o/b/o DELBERT L. SIPLES) Claimant-Respondent v. BRAZIL COAL & CLAY CORPORATION 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UNPUBLISHED OPINION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 and the Attorney's Fee Order of Jason A. Golden, Administrative Law Judge, United States Department of Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for claimant.
Walter E. Harding (Boehl Stopher & Graves, LLP), Louisville Kentucky, for employer.
Before: BUZZARD, GILLIGAN, and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2012-BLA-06034) of Administrative Law Judge Jason A. Golden rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2012) (the Act). Employer also appeals the administrative law judge's May 22, 2018 Attorney's Fee Order (2012-BLA-06034 and 2015-BLA-05193) granting an attorney's fee and expenses.[1] This case involves a miner's subsequent claim filed on June 6 2011.[2]
Based on his finding that the miner had fourteen years of coal mine employment, the administrative law judge concluded claimant could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[3] 30 U.S.C. §921(c)(4) (2012). He also found no evidence of complicated pneumoconiosis, precluding invocation of the irrebuttable presumption of total disability due to pneumoconiosis under Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3) (2012); 20 C.F.R. §718.304. Considering whether claimant is entitled to benefits without the presumptions, the administrative law judge found claimant established the miner had legal pneumoconiosis[4] and a totally disabling respiratory impairment and, therefore, established a change in an applicable condition of entitlement.[5] He further found claimant established the miner's total disability was due to legal pneumoconiosis and awarded benefits. In a May 22, 2018 Attorney's Fee Order, the administrative law judge granted claimant's counsel a fee of $9, 120.50 and $1, 724.51 in expenses.
On appeal, employer asserts the administrative law judge erred in finding claimant established legal pneumoconiosis and the miner's disability was due to legal pneumoconiosis. Employer also contests the award of attorney's fees, as premature. Claimant responds in support of the awards of benefits and attorney's fees. The Director, Office of Workers' Compensation Programs, did not file a response brief in this appeal.[6]
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law.[7] 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).
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 (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).
Employer contends the administrative law judge erred in finding the medical opinion evidence established legal pneumoconiosis.[8] See 20 C.F.R. §718.202(a)(4); Employer's Brief at 5-11. In order to establish legal pneumoconiosis, claimant must prove the miner had "a chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §718.201(b).
The administrative law judge considered the opinions of Drs. Houser, Dultz, and Repsher.[9] Dr. Houser diagnosed legal pneumoconiosis in the form of emphysema and chronic bronchitis due to a combination of coal mine dust exposure and cigarette smoking. Decision and Order at 20-21, 26-27; Claimant's Exhibit 7 at 8. Dr. Dultz similarly diagnosed legal pneumoconiosis in the form of emphysema due to coal mine dust exposure and smoking. Decision and Order at 18-19, 26-27; Director's Exhibit 12 at 1, 24-26; Claimant's Exhibit 8 at 14-15. In contrast, Dr. Repsher opined the miner did not have legal pneumoconiosis, but had severe chronic obstructive pulmonary disease (COPD), bullous emphysema and respiratory bronchiolitis interstitial lung disease, due solely to smoking. Decision and Order at 19-20, 28-29; Director's Exhibit 26 at 4, 7-10.
The administrative law judge credited Drs. Houser and Dultz over Dr. Repsher because he found their opinions better reasoned and more consistent with scientific studies found credible by the Department of Labor (DOL) in the preamble to the revised regulations. The administrative law judge therefore found the medical opinion evidence established legal pneumoconiosis. 20 C.F.R. §718.202(a)(4).
We reject employer's assertion that the opinions of Drs. Houser and Dultz are not sufficient to establish legal pneumoconiosis because they could not apportion the relative contributions of coal mine dust and smoking to the miner's COPD/emphysema and chronic bronchitis. Employer's Brief at 10-12. As the administrative law judge observed, Dr. Houser based his conclusions on a review of medical records, including treatment records, pulmonary function testing, x-rays, computed tomography scans, and the medical reports and depositions of various physicians. Decision and Order at 20-21, 27; Claimant's Exhibit 7. Additionally, Dr. Houser cited medical literature that coal dust exposure causes COPD/emphysema and that the effects are additive with smoking, amplifying and accelerating the rate of respiratory function decline. Decision and Order at 20-21, 27; Claimant's Exhibit 7 at 7-8. While Dr. Houser acknowledged that "it remains difficult to apportion the relative contributions of smoking, occupational exposures, and other factors in individual patients," he unequivocally opined the miner's disabling emphysema and chronic bronchitis are "manifestations of legal pneumoconiosis." Decision and Order at 20-21, 27; Claimant's Exhibit 7 at 8.
Similarly, the administrative law judge noted Dr. Dultz examined the miner and based his diagnosis of legal pneumoconiosis on substantially accurate smoking and work histories, physical examination results, symptomology, objective testing, and x-ray evidence. Decision and Order at 18-19; Director's Exhibit 12; Claimant's Exhibit 8. Like Dr. Houser, Dr. Dultz acknowledged he could not assign a percentage to the relative contributions of coal mine dust and smoking to the miner's emphysema because the effects are additive. Claimant's Exhibit 8 at 14-15. He unequivocally concluded, however, both exposures contributed to the miner's emphysema. Director's Exhibit 12.
In crediting Drs. Houser and Dultz, the administrative law judge permissibly found their opinions well-reasoned and well-documented. Amax Coal Co. v. Burns, 855 F.2d 499, 501 (7th Cir. 1988). He also found them consistent with scientific studies found credible by the DOL that coal mine dust is associated with clinically significant airways obstruction and chronic bronchitis and the risk is additive with cigarette smoking. See 65 Fed. Reg. 79, 920, 79, 940-43 (Dec. 20, 2000); Consolidation Coal Co. v. Director, OWCP [Beeler], 521 F.3d 723, 726 (7th Cir. 2008); Consolidation Coal Co. v. Director, OWCP [Stein], 294 F.3d 885, 893 (7th Cir. 2002); see also Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-155 (1989) (en banc); Decision and Order at 26, 29-30.
Moreover, contrary to employer's argument, a physician need not apportion a specific percentage of a miner's lung disease to cigarette smoke versus coal mine dust exposure to establish the existence of legal pneumoconiosis. Employer's Brief at 10-12. The physician need only credibly diagnose a chronic respiratory or pulmonary impairment that is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §718.201(b). The United States Court of Appeals for the Seventh Circuit, within whose jurisdiction this case arises, has held that a claimant can satisfy this burden by showing coal dust exposure contributed "at least in part" to the miner's respiratory or pulmonary impairment. See Beeler, 521 F.3d at 725-26; Freeman United Coal Mining Co. v. Director, OWCP [Shelton], 957 F.2d 302, 303 (7th Cir. 1992). As Drs. Houser and Dultz credibly attributed the miner's COPD/emphysema and chronic bronchitis to a combination of factors, including coal mine dust exposure, the administrative law judge permissibly found their opinions consistent with the regulations and sufficient to establish legal pneumoconiosis. See Beeler, 521 F.3d at 725-26; Decision and Order at 26-27; Director's Exhibit 12; Claimant's Exhibits 7, 8. We thus affirm the administrative law judge's determination to assign "probative weight" to the medical opinions of Drs. Houser and Dultz as supported by substantial evidence.[10] See Beeler, 521 F.3d at 725; Decision and Order at 26-27.
Employer also argues the administrative law judge erred in discrediting the opinion of Dr. Repsher. Employer's Brief at 7-9. We disagree. The administrative law judge noted Dr Repsher...
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