Tolliver v. Eastern Associated Coal Co.

• Decision Date: 29 January 2010
• Docket Number: BRB 09-0328 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: ETHEL ELAINE TOLLIVER on behalf of and as Widow 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

ETHEL ELAINE TOLLIVER on behalf of and as Widow 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

BRB No. 09-0328 BLA

Court of Appeals of Black Lung

January 29, 2010

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits on Second Remand of Alice M. Craft, Administrative Law Judge, United States Department of Labor.

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

PER CURIAM:

Employer appeals the Decision and Order Awarding Benefits on Second Remand (2000-BLA-882) of Administrative Law Judge Alice M Craft with respect to a miner's duplicate 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). This case is before the Board for the third time. ^[1] In its most recent Decision and Order, the Board considered employer's appeal of an award of benefits and vacated the administrative law judge's findings under 20 C.F.R §§718.202(a)(4), 718.204(c) and 718.205(c), as well as her determination that the newly submitted evidence established a material change in conditions in the miner's claim pursuant to 20 C.F.R. §725.309(d) (2000). ^[2] The Board remanded the case to the administrative law judge, with instructions to apply the factors identified by the United States Court of Appeals for the Fourth Circuit in Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998), and Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997), to the medical opinions relevant to 20 C.F.R. §718.202(a)(4) and to set forth the bases for her findings. ^[3] The Board also instructed the administrative law judge to reconsider Dr. Rasmussen's opinion in the context of 20 C.F.R. §718.204(c) and determine whether the physician's opinion was supported by underlying documentation. The Board further instructed the administrative law judge to specifically address the issue of death due to pneumoconiosis because the administrative law judge mechanically accorded superior weight to the opinion of Dr. Sullivan, based on his status as a treating physician. Tolliver v. Eastern Associated Coal Corp., BRB No. 06-0548 BLA (Mar. 26, 2007)(unpub.).

On remand, the administrative law judge found that the newly submitted x-ray evidence was sufficient to establish the existence of clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and, therefore, a material change in conditions in the miner's claim pursuant to 20 C.F.R. §725.309 (2000). Weighing all of the x-ray evidence together, the administrative law judge found that the older x-rays did not conflict with her finding that the newly submitted x-ray evidence established the existence of pneumoconiosis. ^[4] The administrative law judge further found that the medical opinion evidence established the existence of both clinical and legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Weighing all of the relevant evidence together, the administrative law judge found that the miner suffered from both clinical and legal pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a) and 718.203(b). The administrative law judge also found that the miner was totally disabled due pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c), and 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 in both claims.

On appeal, employer argues that the administrative law judge erred in reconsidering whether the newly submitted x-ray evidence was sufficient to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1), and thus erred in finding that a material change in conditions was established pursuant to 20 C.F.R. §725.309(d)(2000). In addition, employer contends that the administrative law judge mischaracterized the CT scan evidence and erred in her analysis of the medical opinions at 20 C.F.R. §718.202(a)(4). Employer also maintains that the administrative law judge erred in finding total disability due to pneumoconiosis established at 20 C.F.R. §718.204(c) and asserts that the determination of total disability, unrelated to coal mine employment, in the miner's prior claim precluded consideration of this issue in the present claim. Employer also alleges that the administrative law judge erred in finding that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Finally, employer contends that this case, if remanded, deserves a fresh look and that reassignment to a different administrative law judge is necessary. Neither claimant nor the Director, Office of Workers' Compensation Programs, has filed a brief in this appeal.

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).

Consideration of 20 C.F.R. §718.202(a)(1) on Remand

In her 2006 Decision and Order on Remand, the administrative law judge determined that the newly submitted x-ray evidence was inconclusive. 2006 Decision and Order on Remand at 33. In her most recent Decision and Order, the administrative law judge determined that the seven newly submitted films dated between July 8, 1993 and January 15, 1996, were positive for pneumoconiosis, while the two newly submitted films obtained in 1999, were negative for the disease. Decision and Order on Second Remand at 32-33; Director's Exhibits 12, 14, 26, 42, 46, 48, 75, 77, 78, 85; Employer's Exhibits 3, 8. The administrative law judge explained that, “taking into account the qualifications of the interpreting physicians, ” she gave greater weight to the positive readings and found the existence of pneumoconiosis established by the newly submitted x-ray evidence. Decision and Order on Second Remand at 33.

Employer argues that because the Board did not disturb the administrative law judge's previous finding, that the newly submitted x-ray evidence was inconclusive and, thus, insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), the administrative law judge erred in addressing this issue on remand. In support of its argument, employer notes that the Board only instructed the administrative law judge to reconsider whether claimant could establish a material change in conditions by proving that the miner had legal pneumoconiosis by medical opinion evidence under 20 C.F.R. §718.202(a)(4).

Employer's contentions are without merit. In its prior Decision and Order, the Board did not affirm the administrative law judge's determination that the newly submitted x-ray evidence was inconclusive. Rather, by instructing the administrative law judge to weigh the newly submitted evidence relevant to the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1)-(4) on remand, the Board reopened the issue of whether the newly submitted x-ray evidence was sufficient to establish the existence of pneumoconiosis. Tolliver, slip op. at 7. The administrative law judge did not err, therefore, in reconsidering whether the newly submitted x-ray evidence was sufficient to establish the existence of pneumoconiosis under 20 C.F.R. §718.202(a)(1) on remand, nor was she bound by her prior findings with respect to this evidence. See Youghiogheny and Ohio Coal Co. v. Milliken, 200 F.3d 942, 22 BLR 2-46 (6th Cir. 1999) (An appellate court's mandate forecloses a lower court or an agency from revisiting only those issues that the appellate court actually decided); Dale v. Wilder Coal Co., 8 BLR 1-119 (1985).

The Weighing of the X-Ray Evidence

Upon weighing of the newly submitted x-ray evidence at 20 C.F.R §718.202(a)(1), the administrative law judge found that the credible x-rays classified for the existence of pneumoconiosis consisted of nine x-rays dated January 14, 1994, March 18, 1994, September 3, 1994, September 16, 1994, June 28, 1995, July 4, 1995, January 15, 1996, March 10, 1999, and September 24, 1999. Decision and Order on Second Remand at 32-33; Director's Exhibits 12, 14, 26, 42, 46, 48, 75, 77, 78, 85; Employer's Exhibits 2, 3, 8. Regarding Dr. Jenkins's interpretation of the film dated January 14, 1994, the administrative law judge stated:

Dr. Jenkins did not assign an ILO classification but stated that it was unchanged. He had previously interpreted a film dated July 8, 1993, as positive, ILO classification 1/1. There were no negative readings. Therefore, I find this to be a positive film.

Decision and Order on Second Remand at 33. With respect to the x-rays obtained on March 18, 1994, September 3, 1994 and September 16, 1994, the administrative law judge determined that these films were positive, based upon Dr. Renn's uncontradicted interpretations. Id. The administrative law judge found that the film dated June 28 1995, was positive for pneumoconiosis, as the positive readings by dually-qualified radiologists outweighed the negative interpretation by a B reader. Id. at 32. The administrative law judge determined that the July 4, 1995 x-ray was positive for pneumoconiosis, based upon Dr. Renn's uncontradicted reading. Id. Regarding the film obtained on January 15, 1996, the

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