Taylor v. Rag American Coal Co

• Decision Date: 31 October 2002
• Docket Number: BRB 02-0200 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: ISABELL TAYLOR Widow of JOHN LLOYD TAYLOR Claimant- Respondent v. RAG AMERICAN COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

ISABELL TAYLOR Widow of JOHN LLOYD TAYLOR Claimant- Respondent v. RAG AMERICAN COAL COMPANY Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 02-0200 BLA

Court of Appeals of Black Lung

October 31, 2002

UNPUBLISHED OPINION

Appeal of the Decision and Order of Rudolf L. Jansen, Administrative Law Judge, United States Department of Labor.

Anne Megan Davis and Thomas E. Johnson (Johnson, Jones, Snelling Gilbert & Davis), Chicago, Illinois, for claimant .

Tab R Turano and Laura Metcoff Klaus (Greenberg Traurig LLP) Washington, D.C., for employer.

Mary Forrest-Doyle (Eugene Scalia, 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

PER CURIAM:

Employer appeals the Decision and Order (99-BLA-1299) of Administrative Law Judge Rudolf L. Jansen awarding benefits on a survivor'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).^[1] The instant case involves a survivor's claim filed on June 2, 1998.^[2] After crediting the miner with forty years of coal mine employment the administrative law judge found that the evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (a)(2) and (a)(4). The administrative law judge also found that claimant was entitled to a presumption that the miner's pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R. §718.203(b). The administrative law judge further found that the evidence was sufficient to establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the administrative law judge awarded benefits. On appeal, employer argues that the definition of pneumoconiosis set out at revised 20 C.F.R. §718.201(c) is impermissibly retroactive. Employer also argues that the administrative law judge erred in finding the x-ray evidence sufficient to establish the existence of pneumoconiosis. Employer also contends that the administrative law judge erred in finding that the evidence was sufficient to establish that the miner's death was due to pneumoconiosis. Employer finally contends that it should be dismissed from the case because the administrative law judge's reliance upon Dr. Jones's autopsy report constitutes a violation of its due process rights. Claimant^[3]responds in support of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds, contending that employer waived its due process argument. The Director also contends that the definition of pneumoconiosis set out at revised 20 C.F.R. §718.201(c) is not impermissibly retroactive. In its reply to claimant's response brief, employer reiterates its previous contentions. In its separate reply to the Director's response brief, employer argues that it did not waive its due process argument. Employer also reiterates its contention that revised 20 C.F.R. §718.201(c) is impermissibly retroactive.^[4]

The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence, are rational, and are in accordance with applicable law. 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).

Employer initially contends that revised Section 718.201(c) is impermissibly retroactive. Revised Section 718.201(c) recognizes pneumoconiosis "as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure." 20 C.F.R. §718.201(c). The United States Court of Appeals for the Seventh Circuit, within whose jurisdiction the instant case arises, has specifically recognized the progressive nature of pneumoconiosis. See Amax Coal Co. v. Franklin, 957 F.2d 355, 359, 16 BLR 2-50, 2-57 (7th Cir. 1992) (Black lung disease, at least when broadly defined, is a progressive disease...."); Dotson v. Peabody Coal Co., 846 F.2d 1134, 1139 (7th Cir. 1988) ("Pneumoconiosis is a progressive disease...."). The U.S. Supreme Court has also recognized the progressive nature of pneumoconiosis.See Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied 484 U.S. 1047 (1988) (recognizing that pneumoconiosis is a "serious and progressive pulmonary condition"). Moreover, the United States Court of Appeals for the District of Columbia recently held that revised Section 718.201(c) is not impermissibly retroactive. Nat'l Mining Ass'n v. United States Dep't of Labor, __ F.3d __, 2002 WL 130007 (D.C. Cir. June 14, 2002), aff'g in part and rev'g in part Nat'l Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C. 2001). Consequently, we reject employer's contention that revised Section 718.201(c) is impermissibly retroactive.

We now turn our attention to employer's contentions regarding the merits of the claim. Employer argues that the administrative law judge erred in finding that the x-ray evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). In his consideration of the x-ray evidence, the administrative law judge acted within his discretion by according greater weight to the interpretations of claimant's most recent x-rays. See Pate v. Alabama By-Products Corp., 6 BLR 1-636 (1983); Decision and Order at 10. The administrative law judge also properly accorded greater weight to the interpretations rendered by physicians with the dual qualifications of B reader and Board-certified radiologist. See Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984); Decision and Order at 10. Specifically, the administrative law judge found that Drs. Aycoth and Lee, each dually qualified as a B reader and Board-certified radiologist, rendered positive interpretations of the miner's March 25, 1994 x-ray, the only x-ray taken after November 19, 1986 that was interpreted by physicians qualified as B readers and/or Board-certified radiologists. Decision and Order at 10; Director's Exhibit 24. The administrative law judge further found that there were no negative interpretations of this x-ray. Decision and Order at 10. The administrative law judge, therefore, found that the x-ray evidence was sufficient to establish the existence of pneumoconiosis. Id.

Employer argues that the administrative law judge erred in finding that Dr. Linge's interpretations of the miner's x-rays were "not diagnostic of pneumoconiosis." Dr. Linge interpreted the miner's x-rays taken on January 12, 1994, March 7, 1994, March 10, 1994, March 14, 1994, March 25, 1994, September 23, 1994, March 11, 1997, June 4, 1997, June 7, 1997 and June 10, 1997. Director's Exhibits 9, 17. Because Dr. Linge, in rendering his x-ray interpretations, did not mention pneumoconiosis, employer contends that the doctor's x-ray interpretations should have been considered negative for pneumoconiosis.

An x-ray interpretation that does not mention pneumoconiosis will, in appropriate circumstances, support an inference that a miner does not suffer from pneumoconiosis. See Marra v. Consolidation Coal Co., 7 BLR 1-216 (1984). It is a question of fact for the administrative law judge to resolve. Id. However, the administrative law judge, in the instant case, properly accorded greater weight to the x-ray interpretations rendered by physicians qualified as B readers and/or Board-certified radiologists. Because Dr. Linge's radiological qualifications are not found in the record, the administrative law judge's error, if any, in finding that his x-ray interpretations were "not diagnostic of pneumoconiosis" is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1284 (1986); Decision and Order at 10. Inasmuch as it is based on substantial evidence, we affirm the administrative law judge's finding that the x-ray evidence is sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).

Employer next contends that the administrative law judge committed numerous errors in finding the evidence sufficient to establish that the miner's death was due to pneumoconiosis. Because the instant survivor's claim was filed after January 1, 1982, claimant must establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).^[5] See 20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director, OWCP, 11 BLR 1-85 (1988). A miner's death will be considered to be due to pneumoconiosis if the evidence is sufficient to establish that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. 20 C.F.R. §718.205(c)(2). Pneumoconiosis is a "substantially contributing cause" of a miner's death if it hastens the miner's death. 20 C.F.R. §718.205(c)(5); see Peabody Coal Co. v. Director, OWCP [Railey], 972 F.2d 178, 16 BLR 2-121 (7th Cir. 1992).

In the instant case, Drs. Abraham, Jones, Green and Cohen opined that the miner's death was due to pneumoconiosis. Drs. Caffrey, Fino, Hutchins, Kleinerman, Naeye, Repsher and Tuteur opined that the miner's death was not due to pneumoconiosis. After according less weight to the opinions of Drs. Caffrey, Fino, Hutchins, Naeye, Repsher, Tuteur, Abraham and Green, the administrative law judge found that:

Weighing these reports together, I give

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