Troup v. Reading Anthracite Coal Co.
| Decision Date | 16 November 2001 |
| Docket Number | BRB 00-1070 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | FERNE L. TROUP Executrix of the Estate of DELBERT D. TROUP Claimant-Respondent v. READING ANTHRACITE COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand of Paul H. Teitler Administrative Law Judge, United States Department of Labor.
David H. Rattigan (Williamson, Friedberg & Jones), Pottsville Pennsylvania, for claimant.
W William Prochot (Greenberg Traurig LLP), Washington, D.C for, employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
HALL, Chief Administrative Appeals Judge:
Employer appeals the Decision and Order on Remand (91-BLA-0601) of Administrative Law Judge Paul H. Teitler awarding benefits on 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).[1] The instant case, involving a duplicate claim filed on January 31, 1990, [2]is before the Board for the fourth time. In the initial decision, the administrative law judge, after crediting the miner with forty-nine years of coal mine employment, found that the x-ray evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) (2000). The administrative law judge further found that the miner's pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R. 718.203(b) (2000). Although the administrative law judge found that the evidence was insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(1), (c)(2) and (c)(3) (2000), the administrative law judge found that the medical opinion evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(4) (2000). The administrative law judge also found that the evidence was sufficient to establish that the miner's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b) (2000). Accordingly, the administrative law judge awarded benefits.
By Decision and Order dated December 27, 1994, the Board, after noting that the administrative law judge had not addressed whether the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000), held that the newly submitted evidence was sufficient to establish a material change in conditions pursuant to the then-applicable standard set out in Shupink v. LTV Steel Co., 17 BLR 1-24 (1992). Troup v. Reading Anthracite Coal Co., BRB No. 92-2015 BLA (Dec. 27, 1994) (unpublished). The Board, however, vacated the administrative law judge's finding pursuant to 20 C.F.R. §718.202(a)(1) (2000) and remanded the case for further consideration. Id. Although the Board affirmed the administrative law judge's finding that the medical opinion evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(4) (2000), the Board vacated the administrative law judge's finding that the pulmonary function study evidence was insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(1) (2000). Id. The Board also held that the administrative law judge erred in failing to consider the contrary probative evidence in determining whether the evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c) (2000). Id. The Board, therefore, remanded the case to the administrative law judge for further consideration.[3] Id.
On remand, the administrative law judge found that the x-ray evidence was insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) (2000). The administrative law judge, however, found that the medical opinion evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) (2000). The administrative law judge further found that the evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c) (2000). Accordingly, the administrative law judge awarded benefits. By Decision and Order dated March 29, 1996, the Board rejected employer's assertion that remand was required for consideration of whether the miner established a material change in conditions under the newly enunciated standard set out in Labelle Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995). Troup v. Reading Anthracite Coal Co., BRB No. 95-1856 BLA (Mar. 29, 1996) (unpublished). The Board also rejected employer's contentions of error regarding the administrative law judge's weighing of the evidence under 20 C.F.R. §§718.202(a)(4) (2000) and 718.204(c) (2000). Id. The Board reaffirmed the administrative law judge's finding pursuant to 20 C.F.R. §718.204(b) (2000) based upon the law of the case doctrine. Id. The Board, therefore, affirmed the administrative law judge's award of benefits. Id. Employer subsequently filed a motion for reconsideration with the Board. By Decision and Order on Reconsideration dated January 16, 1997, the Board vacated the administrative law judge's award of benefits and remanded the case to the administrative law judge for consideration of whether the evidence was sufficient to establish a material change in conditions pursuant to the standard set out in Swarrow. Troup v. Reading Anthracite Coal Co., BRB No. 95-1856 BLA (Jan. 16, 1997) (Decision and Order on Recon.) (unpublished).
The administrative law judge, in a Decision and Order on Remand dated September 10, 1997, denied employer's motion to reopen the record.[4] Although the administrative law judge found that the newly submitted evidence was insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (a)(2) and (a)(3) (2000), the administrative law judge found that the newly submitted medical opinion evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) (2000). The administrative law judge, therefore, found that the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). In his consideration of the merits of the miner's 1990 claim, the administrative law judge addressed all of the evidence of record and found that the miner was entitled to benefits.[5]
Employer filed an appeal with the Board.[6] By Decision and Order dated November 15, 1999, the Board rejected employer's contention that the one-element standard set out in Swarrow was invalid. Troup v. Reading Anthracite Coal Co., 22 BLR 1-11 (1999) (en banc). The Board also rejected employer's assertion that the administrative law judge's refusal to reopen the record on remand was an abuse of discretion which violated fundamental fairness and employer's right to due process. Id. In regard to employer's contentions regarding the administrative law judge's findings pursuant to 20 C.F.R. §§718.202(a)(4) (2000), 718.204(c)(2) and (c)(4) (2000) and 718.204(b) (2000), the Board held that the law of the case doctrine was controlling. Id. The Board, however, agreed with employer that it was necessary to remand the case to the administrative law judge to weigh the evidence concerning the existence of pneumoconiosis in accordance with Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997). The Board, explained that:
In Williams, the Third Circuit held that an administrative law judge must weigh all types of, relevant evidence together at Section 718.202(a)(1)-(4) to determine whether claimant suffers from, pneumoconiosis. In the instant case, the administrative law judge found the newly submitted evidence, insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(1)-(3), but found it, sufficient to establish the existence of pneumoconiosis at Section 718.202(a)(4). However, an, examination of the administrative law judge's decision reveals that the administrative law judge did not, weigh all of the relevant evidence together to determine whether claimant has established the existence, of pneumoconiosis in accordance with Williams. Therefore, we vacate the administrative law, judge's finding that the evidence is sufficient to establish the existence of pneumoconiosis at Section
718.202(a), and remand the case to the administrative law judge for further consideration of the evidence, in compliance with the requirement established in Williams that all types of relevant evidence, must be weighed together to determine whether claimant suffers from pneumoconiosis. Troup, 22 BLR at 1-22.
The Board further vacated the administrative law judge's finding that claimant established a material change in conditions at Section 725.309. Troup v. Reading Anthracite Coal Co., 22 BLR 1-11 (1999) (en banc). The Board further instructed the administrative law judge that should he find a material change in conditions established, he must consider whether the evidence is sufficient to establish the existence of pneumoconiosis at Section 718.202(a) on the merits. Id. The Board finally vacated the administrative law judge's finding of total disability at 20 C.F.R. §718.204(c) (2000). Id.
On remand, the administrative law judge declined employer's request to reopen the record for the submission of additional evidence. The administrative law judge found that the newly submitted evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) (2000). The administrative law judge, therefore, found that the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).[7] In his...
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