Tolliver v. Eastern Associated Coal Corp., BRB 06-0548 BLA
| Decision Date | 26 March 2007 |
| Docket Number | BRB 06-0548 BLA |
| Parties | ETHEL ELAINE TOLLIVER on behalf of and as Survivor of MICHAEL LEE TOLLIVER Claimant-Respondent v. EASTERN ASSOCIATED COAL CORPORATION and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- 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UNPUBLISHED OPINION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 Awarding Benefits on Remand of Alice M. Craft, Administrative Law Judge, United States Department of Labor.
S.F Raymond Smith (Rundle & Rundle, L.C.), Pineville, West Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order Awarding Benefits on Remand (2000-BLA-882) of Administrative Law Judge Alice M. Craft on a duplicate miner’s claim filed on May 16, 1995 and a survivor’s claim filed on October 15, 1999 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] This case, as presently postured, is before the Board for a second time. [2] When the case was first before the Board, the Board vacated the administrative law judge’s award of benefits. Tolliver v. Eastern Associated Coal Corp., BRB No. 04-0129 BLA (Oct. 22 2004)(unpub.). The Board held that the administrative law judge’s material change in conditions finding pursuant to 20 C.F.R. §725.309(d) (2000) could not be affirmed because the administrative law judge discussed only the general standard of review for determining whether a material change in conditions was established, without rendering a specific finding based upon consideration of the newly submitted evidence. Tolliver, slip op. at 3. The Board also vacated the administrative law judge’s finding that the x-ray evidence established the existence of pneumoconiosis pursuant to 20 C.F.R §718.202(a)(1)(2000) and remanded the case for reconsideration of the x-ray evidence because the administrative law judge had failed to provide an adequate rationale for her weighing of the x-ray evidence and because she did not provide an explanation of her reasons or bases for her conclusions in light of the various reader qualifications and conflicting interpretations. Board’s Decision and Order at 4. Further, the Board vacated the administrative law judge’s finding that the medical opinion evidence established the existence of the disease under 20 C.F.R. §718.202(a)(4)(2000). In so doing, the Board remanded the case for reconsideration of the medical opinion evidence because the administrative law judge erred in crediting the opinions of Drs. Jenkins, Rasmussen and Albin, which were not well-reasoned and documented, while discounting the contrary opinions of Drs. Tuteur, Renn, Naeye, Repsher, Dahhan and Kleinerman without sufficiently explaining her reasons for doing so pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d), and 30 U.S.C. §932(a), and the decision of the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, in Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998). Tolliver, slip op. at 3-6. The Board further instructed the administrative law judge to weigh all types of relevant evidence together at 20 C.F.R. §718.202(a)(1)-(4)(2000) pursuant to Island Creek Coal Co. v Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000) in considering whether the existence of pneumoconiosis was established. Tolliver, slip op. at 6. In addition, the Board held that since the administrative law judge’s errors regarding the existence of pneumoconiosis directly impacted her findings regarding disability causation and death due to pneumoconiosis, those findings were likewise vacated and the case was remanded for reconsideration of those issues, if necessary. 20 C.F.R. §§718.204, 718.205 (2000). Id.
On remand, in considering the newly submitted x-ray, CT scan, and medical opinion evidence together, as required by Compton, 211 F.3d at 211, 22 BLR at 2-174, the administrative law judge concluded that while the newly submitted x-ray evidence was inconclusive and was, therefore, insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(1)(2000), the newly submitted medical opinion evidence was sufficient to establish to establish the existence of pneumoconiosis at Section 718.202(a)(4)(2000). Decision and Order on Remand at 30-37. [3] The administrative law judge concluded, therefore, that a material change in conditions was established pursuant to Section 725.309(d)(2000). Further, based on her review of all of the evidence of record, and the fact that the miner was employed in coal mine employment for over twenty-seven years, the administrative law judge found that claimant was entitled to the presumption that the miner’s pneumoconiosis arose out of his coal mine employment pursuant to Section 718.203(b). The administrative law judge also found, on review of the record, that the miner was totally disabled due to pneumoconiosis pursuant to Section 718.204(b), (c) and that his death was due to pneumoconiosis pursuant to Section 718.205(c). Accordingly, benefits were again awarded on both the miner’s and the survivor’s claims.
On appeal, employer challenges the administrative law judge’s weighing of the evidence under Sections 718.202(a)(4), 718.204(c) and 718.205(c). In response, claimant urges that the award of benefits be affirmed. The Director, Office of Workers’ Compensation Programs, has not filed a brief in this appeal. [4]
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. 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 first contends that the administrative law judge failed to fully analyze the credentials of the physicians who provided the medical opinions. Specifically, employer contends that, although acknowledging the importance of physician qualifications, the administrative law judge failed to explain why the opinions of pulmonary disease specialists, who opined that the miner did not suffer from legal pneumoconiosis, were not entitled to greater weight than the opinions of physicians diagnosing the presence of the disease, who had no pulmonary expertise.
Employer also contends the administrative law judge failed to explain why she found the opinion of Dr. Rasmussen to be reasoned and documented while the opinions of Drs. Sullivan and Jenkins were not, when she had found that: Dr. Rasmussen did not have all of the miner’s medical records; Dr. Rasmussen noted that the miner had other conditions that could have caused his lung disease; and Dr. Rasmussen did not explain what factors, other than coal dust exposure, led him to conclude that coal dust was a cause of the miner’s respiratory condition. Moreover, employer argues that Dr. Rasmussen’s opinion diagnosing pneumoconiosis was not an affirmative finding, but was instead merely based on x-ray evidence and the physician’s inability to “rule out” coal dust exposure as a source of the miner’s condition. Thus, in sum, employer contends that the administrative law judge’s analysis of Dr. Rasmussen’s opinion does not comply with the Board’s remand instructions.
Similarly, employer argues that the administrative law judge’s treatment of the opinions of Drs. Renn, Tuteur, Repsher and Dahhan, Director’s Exhibits 42, 48, 58; Employer’s Exhibits 1, 2, 5-13, all of whom concluded that the miner did not suffer from pneumoconiosis or any disease arising out of coal mine dust exposure, failed to comply with the Board’s remand instructions as the administrative law judge failed to provide a rational reason for discrediting these physicians’ opinions. Employer contends that the administrative law judge determined that these opinions were not consistent with each other, Decision and Order on Remand at 35, but ignored the fact that they were consistent as to what role coal dust exposure played in the miner’s condition, i.e., they all agreed that it was not a factor. Employer also contends that the administrative law judge mischaracterized these opinions when she found that they relied too heavily on negative biopsy results to find that pneumoconiosis was absent, when the administrative law judge, herself, acknowledged that these doctors relied on more than biopsy results. Moreover, employer contends that the administrative law judge erred in finding these opinions to be “hostile to the Act” since these doctors never stated that pneumoconiosis could never be “latent and progressive.” Employer’s Brief 19-21.
The administrative law judge specifically noted that claimant failed to offer any evidence that substantiated the background and qualifications of the physicians that supported his claim, while the credentials of the pulmonologists consulted by employer were well-documented in the record. [5] As employer contends, the administrative law judge did not further address the credentials of the physicians. On remand, therefore, the administrative law judge must address the physicians’ credentials and the effect they have on her assessment of their credibility. See Hicks, 138 F.3d 524, 21 BLR 2-323.
As employer contends, in finding that Dr. Rasmussen’s opinion supported a finding of legal pneumoconiosis [6]pursuant to Section 718.202(a)(4)...
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