Sizemore v. Shamrock Coal Co., Inc., BRB 04-0681 BLA
| Decision Date | 07 June 2005 |
| Docket Number | BRB 04-0681 BLA |
| Parties | JOHN HENRY SIZEMORE Claimant-Petitioner Cross-Respondent v. SHAMROCK COAL COMPANY, INCORPORATED and SUN COAL COMPANY, c/o ACORDIA EMPLOYERS SERVICE Employer/Carrier-Respondents Cross-Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order – Denial of Benefits of Thomas F Phalen, Jr., Administrative Law Judge, United States Department of Labor.
Edmond Collett (Edmond Collett, P.S.C.), Hyden, Kentucky, for claimant.
Ronald E. Gilbertson (Bell, Boyd & Lloyd PLLC), Washington, D.C for employer.
Rita Roppolo (Howard M. Radzely, 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER.
Claimant appeals and employer cross-appeals from the Decision and Order – Denial of Benefits (2003-BLA-176) of Administrative Law Judge Thomas F. Phalen, Jr. (the administrative law judge), with respect to a 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). The administrative law judge accepted the stipulation of the parties that claimant had thirty years of qualifying coal mine employment, and determined that this subsequent claim, filed on February 2, 2001, was timely filed pursuant to 20 C.F.R. §725.308(a), and that claimant’s initial claim, filed on July 31, 1991, was denied by Administrative Law Judge Frank D. Marden on June 14, 1994, on the ground that claimant failed to establish total disability. The administrative law judge found that the new evidence was insufficient to establish either invocation of the irrebuttable presumption of total disability due to pneumoconiosis at 20 C.F.R. §718.304, or total respiratory disability pursuant to 20 C.F.R §718.204(b)(2)(i)-(iv), and therefore that claimant had failed to establish a change in a condition of entitlement pursuant to 20 C.F.R. §725.309(d). Accordingly, benefits were denied.
Claimant argues on appeal that the administrative law judge erred in allowing employer to exceed the evidentiary limitations at 20 C.F.R. §725.414, and that this error affected his weighing of the evidence at Section 718.304. Claimant further contends that the administrative law judge erred in finding that claimant failed to establish total respiratory disability at Section 718.204(b)(2)(iv) by a preponderance of the evidence. Employer responds, urging affirmance of the denial of benefits, and filing a cross-appeal in which it contends that the administrative law judge erred in determining that the instant subsequent claim was timely filed pursuant to Section 725.308. Employer additionally maintains that the administrative law judge failed to address the issue of whether imposition of liability on the Black Lung Disability Trust Fund (Trust Fund) was warranted based on the lack of notice of the claim to employer’s insurance carrier. The Director, Office of Workers’ Compensation (the Director), has filed a limited response, declining to address the merits of this appeal but asserting that the administrative law judge properly determined that this subsequent claim was not time-barred. The Director further maintains that if the Board does not affirm the denial of benefits, the administrative law judge should be instructed on remand to determine when claimant ceased his employment with employer and then rule on whether transfer of liability to the Trust Fund is appropriate. Employer has also filed a reply brief in support of its position. [1]
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 by 30 U.S.C. §932(a); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Initially, we will address the timeliness issue presented in employer’s cross-appeal. To be timely, a claim must be filed within three years after a medical determination of total disability due to pneumoconiosis is communicated to the miner. 30 U.S.C. §932(f); 20 C.F.R. §725.308(a). Noting that this case arises within the jurisdiction of the United States Court of Appeals for the Sixth Circuit, the administrative law judge summarized controlling precedent on the issue as set forth in Sharondale Corp. v. Ross, 42 F.3d 993 19 BLR 2-10 (6th Cir. 1994), and Tennessee Consol. Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-288 (6th Cir. 2001). The administrative law judge also discussed the holdings of an unpublished decision, Peabody Coal Co. v. Director, OWCP [Dukes], No. 01-3043, 2002 WL 31205502 (6th Cir., Oct. 2, 2002), wherein the majority determined that although Section 725.308 applies to duplicate claims, a medical report submitted in support of a claim that is denied for failure to establish one or more elements of entitlement is treated, “for legal purposes, ” as containing a misdiagnosis. 20002 WL 31205502, slip op. at 7, citing Wyoming Fuel Co. v. Director, OWCP [Brandolino], 90 F.3d 1502, 20 BLR 2-302 (10th Cir. 1996). The majority in Dukes held that such a report does not constitute a medical determination of total disability that has been communicated to the miner and, therefore, it does not trigger the running of the statute of limitations. Id.
The administrative law judge acknowledged that Dukes was not binding precedent, but found the reasoning employed therein to be significantly persuasive regarding the definition of a medically supported claim. The administrative law judge determined that since claimant filed his subsequent claim on February 2, 2001, employer was required to show that a medical determination of total disability due to pneumoconiosis was communicated to claimant prior to February 2, 1998, in order to rebut the presumption of timeliness pursuant to Section 725.308. [2] Decision and Order at 9. The administrative law judge reviewed the record and determined that the only medical opinion issued prior to that date in which claimant was found to be totally disabled was rendered by Dr. Myers; however, Judge Marden had discredited the opinion, and his denial of benefits was subsequently upheld by the Board. [3] Decision and Order at 9-10. The administrative law judge then relied upon the reasoning of Dukes to find that because Dr. Myers’s report was proffered in support of a denied claim, the opinion constituted a misdiagnosis which did not trigger the running of the three-year time period. Decision and Order at 10.
Employer argues that the administrative law judge erred in relying upon the holding in Dukes, as the case has not been published and its holding is in conflict with the holding in Kirk . These contentions have merit. Pursuant to the rules of the United States Court of Appeals for the Sixth Circuit, Kirk constitutes controlling authority by virtue of its status as a published decision. [4] 6th Cir.R. 206(c); Lopez v. Wilson, 355 F.3d 931 (6th Cir. 2004); Grundy Mining Co. v. Flynn, 353 F.3d 467, 23 BLR 2-44 (6th Cir. 2003); McKinnie v. Roadway Express, Inc., 341 F.3d 554 (6th Cir. 2003); Cross Mountain Coal, Inc. v. Ward, 93 F.3d. 211, 20 BLR 2-360 (6th Cir. 1996). In addition, the rationale underlying the court’s disposition of the timeliness issue in Kirk, differs from that relied upon by the panel in Dukes . In Kirk, the court stated that:
The three-year limitations clock begins to tick the first time that a miner is told by a physician that he is totally disabled by pneumoconiosis. This clock is not stopped by the resolution of the miner’s claim or claims, and, pursuant to Sharondale, the clock may only be turned back if the miner returns to the mines after a denial of benefits. There is thus a distinction between premature claims that are unsupported by a medical determination...and those claims that come with or acquire such support. Medically supported claims, even if ultimately deemed “premature” because the weight of the evidence does not support the elements of the miner’s claim, are effective to begin the statutory period. Three years after such a determination, a miner who has not subsequently worked in the mines will be unable to file any further claims against his employer, although, of course, he may continue to pursue pending claims.
Kirk, 264 F.3d at 608, 22 BLR at 2-298 (emphasis in original), citing Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994). Thus, unlike the majority in Dukes, the Kirk court would treat a credible medical determination of total disability due to pneumoconiosis which is communicated to the miner as sufficient to trigger Section 725.308 regardless of the outcome of the claim which the physician’s opinion sought to support.
Accordingly we must vacate the administrative law judge’s finding that Dr. Myers’s 1992 opinion did not begin the running of the three-year limitation set forth in Section 725.308(a). This case is remanded to the administrative law judge for reconsideration of the issue pursuant to the holding in Kirk . In addressing Dr. Myers’s report on remand, the administrative law judge must determine if Dr. Myers rendered a well reasoned diagnosis of total disability due to pneumoconiosis such that his report constitutes a “medical determination of...
To continue reading
Request your trial