T.J.I. v. U.S. Steel Mining Co., BRB 08-0690 BLA

Decision Date30 June 2009
Docket NumberBRB 08-0690 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Awarding Benefits of Adele Higgins Odegard, Administrative Law Judge, United States Department of Labor.

Patrick K. Nakamura (Nakamura, Quinn, Walls, Weaver &amp Davies), Birmingham, Alabama, for claimant.

Neil Richard Clement (Richardson Clement PC), Birmingham, Alabama for employer.

Sarah M. Hurley (Carol A. DeDeo, Deputy Solicitor; Rae Ellen Frank 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, McGRANERY and HALL, Administrative Appeals Judges.



Employer appeals the Decision and Order Awarding Benefits (07-BLA-5804) of Administrative Law Judge Adele Higgins Odegard rendered on a miner’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). The administrative law judge adjudicated this claim, filed on August 25, 2006, pursuant to the regulations at 20 C.F.R. Part 718. She accepted the parties’ stipulations that claimant had thirty-nine years of coal mine employment and a totally disabling respiratory impairment pursuant to 20 C.F.R. §718.204(b). The administrative law judge found that the weight of the evidence established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a) 718.203(b), and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, benefits were awarded.

On appeal, employer challenges the administrative law judge’s finding that the evidence established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a), and disability causation pursuant to 20 C.F.R. §718.204(c). Claimant responds in support of the award of benefits. The Director, Office of Workers’ Compensation Programs (the Director), has filed a limited response, urging the Board to reject employer’s arguments regarding the administrative law judge’s consideration of Dr. Loveless’s x-ray interpretation.

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. [1] 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).

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. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204; Trent v. Director, OWCP, 11 BLR 1-26 (1987). Failure to establish any one of these elements precludes entitlement. Trent, 11 BLR at 1-27.

At Section 718.202(a)(1), employer challenges the administrative law judge’s evaluation of Dr. Loveless’s October 18, 2006 x-ray interpretation, included in the pulmonary evaluation conducted by Dr. Hawkins for the Department of Labor. Decision and Order at 7, 9; Director’s Exhibit 11. Employer maintains that there is no record evidence that Dr. Loveless is a Board-certified radiologist or a B reader, [2]as presumed by the administrative law judge, and that the physician’s “one-sentence narrative contains no conclusion whatsoever that [the miner] has a chest x-ray film consistent with or probative of the presence of . . . pneumoconiosis.” Employer’s Brief at 20. Employer also asserts that the x-ray interpretation is entitled to no weight because it fails to comply with the classification requirements at 20 C.F.R §718.102(b), and was not submitted on an ILO form. Employer’s Brief at 17-20. The Director responds that [a]ny error in the [administrative law judge’s] decision to presume that Dr. Loveless is a Board-certified radiologist and B reader is harmless, ” as the website of the Norwood Clinic where he practices and the NIOSH B reader list confirm that Dr. Loveless possesses both radiological qualifications. Director’s Brief at 4. Further, the Director maintains that Dr. Loveless’s x-ray interpretation substantially complies with the quality standards at 20 C.F.R. §718.102(b). Director’s Brief at 3.

We agree with the Director that employer’s arguments are without merit. The record reflects that Dr. Loveless’s narrative report indicated that a [c]hest radiograph dated 10/18/2006 is reviewed for the presence of and classification of pneumoconiosis according to the ILO 80 classification, ” and the findings included “QT opacities of profusion 1/2 are seen in all six lung zones.” Director’s Exhibit 11. The administrative law judge accurately determined that Dr. Loveless’s interpretation was positive for pneumoconiosis, and that the remaining x-ray of record, dated February 13, 2007, was interpreted as negative for pneumoconiosis by Dr. Goldstein, a B reader. Director’s Exhibit 12. Noting that the interpretation of an x-ray by a dually qualified Board-certified radiologist and B reader may be given greater weight than the interpretation by a reader who is not dually qualified, the administrative law judge presumed that Dr. Loveless was a radiologist because his letterhead listed him as a physician with the Norwood Clinic Department of Radiology, accredited by the American College of Radiology; and she presumed that he was a B reader because his interpretation was stated in a “B-read” narrative report. [3] Decision and Order at 6-7, n.7, 8; Director’s Exhibit 11. Based on Dr. Loveless’s superior qualifications, the administrative law judge credited his interpretation over that of Dr. Goldstein, and found that the weight of the x-ray evidence at Section 718.202(a)(1) “tends toward establishing that the Claimant has pneumoconiosis.” Decision and Order at 7.

Section 718.202(a)(1) provides that where two or more x-ray readings are in conflict, the administrative law judge shall consider the radiological qualifications of the x-ray readers, as defined therein, in evaluating their x-ray interpretations. 20 C.F.R. §718.202(a)(1)(ii); see generally Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985)[an administrative law judge must compare the relative radiological qualifications of interpreting medical professionals]. The party who attempts to rely upon an x-ray interpretation has the burden of establishing for the record the qualifications of the x-ray reader in question. Rankin v. Keystone Coal Mining Corp., 8 BLR 1-54 (1985). Notably, while the regulations provide the criteria for determining whether a reader is Board-certified, Board-eligible, a B reader or a qualified radiologic technologist, and do not explicitly provide for the consideration of additional qualifications, the comments to the revised regulations provide that, in considering the radiological qualifications of a reader, the adjudicator “should consider any relevant factor in assessing a physician’s credibility, and each party may prove or refute the relevance of that factor.” 65 Fed. Reg. 79945 (Dec. 20, 2000), citing Worhach v. Director, OWCP, 17 BLR 1-105, 1-108 (1983). At the formal hearing, employer raised no objection to the admission into evidence of Dr. Loveless’s x-ray interpretation, Hearing Transcript at 5, and employer does not factually controvert the Director’s submission on appeal. As the administrative law judge rationally inferred, from the face and content of the narrative report, that Dr. Loveless is a radiologist and a B reader, we conclude that she permissibly exercised her discretion, as fact-finder, in order to assess Dr. Loveless’s radiological qualifications as they bear on the credibility of his x-ray interpretation. Accordingly, we reject employer’s assertion that the administrative law judge was obligated to credit Dr. Goldstein’s interpretation over that of Dr. Loveless. As both a Board-certified radiologist and a B reader, Dr. Loveless’s x-ray interpretation was permissibly accorded greater weight than that of Dr. Goldstein. See generally Chaffin v. Peter Cave Coal Co ., 22 BLR 1-294, 1-302 (2003).

With respect to employer’s remaining challenge to Dr. Loveless’s x-ray interpretation, the regulation at 20 C.F.R §718.102 provides that an x-ray must be of suitable quality for the proper classification of pneumoconiosis. Here, the contested x-ray was read for quality by Dr. Barrett, a Board-certified radiologist and B reader, as “1, ” or optimal. [4] Director’s Exhibit 11; Decision and Order at 5, n.4. The regulation further provides that, in order to establish the existence of pneumoconiosis, a chest x-ray “shall be classified as Category 1, 2, 3, A, B, or C” according to the ILO-U/C classification system. 20 C.F.R. §718.102(a), (b); Wilt v. Wolverine Mining Co., 14 BLR 1-70 (1990); Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984). Because Dr. Loveless’s narrative interpretation contained the requisite interpretive ILO profusion rating classification, and his x-ray was deemed to be of suitable quality in order to be reliably interpreted for the presence or absence of pneumoconiosis, we agree with the Director that the x-ray substantially complies with the regulations. 20 C.F.R. §§718.202(a)(1); 718.102(b); Decision and Order at 6-7. Consequently, we affirm the administrative law judge’s resolution of...

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