W.C. v. Whitaker Coal Corp., BRB 07-0649 BLA
| Decision Date | 30 April 2008 |
| Docket Number | 07-0649 BLA-A,BRB 07-0649 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | W.C. Claimant-Petitioner Cross-Respondent v. WHITAKER COAL CORPORATION Employer-Respondent Cross-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order - Denial of Benefits of Donald W Mosser, Administrative Law Judge, United States Department of Labor.
Edmond Collett (Edmond Collett, P.S.C.), Hyden, Kentucky, for claimant.
Ronald E. Gilbertson (Bell, Boyd & Lloyd LLP), Washington, D.C for employer.
Rita Roppolo (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting 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
Claimant appeals and employer cross-appeals the Decision and Order - Denial of Benefits (2005-BLA-06308) of Administrative Law Judge Donald W. Mosser on a subsequent 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 procedural history of this case is as follows: Claimant filed an initial claim on September 21, 1994. [1] Director's Exhibit 1-782. In a Decision and Order dated March 24, 1997, Administrative Law Judge Robert L. Hillyard denied benefits on the grounds that claimant failed to establish the existence of pneumoconiosis or total disability. Pursuant to claimant's appeal, the Board affirmed the denial of benefits. [W.C.] v. Whitaker Coal Corp., BRB No. 97-0916 BLA (Feb. 4, 1998) (unpub.); Director's Exhibits 1-549, 1-594. Claimant filed a request for modification on March 14, 1998, and the case was assigned to Administrative Law Judge Donald W. Mosser. Director's Exhibits 1-327, 1-545. Judge Mosser determined that claimant failed to establish either a change in conditions or a mistake in a determination of fact pursuant to 20 C.F.R. §725.310 (2000) and denied benefits. Claimant appealed, and the Board affirmed Judge Mosser's decision. [W.C.] v. Whitaker Coal Corp., BRB No 99-1076 BLA (Oct. 18, 2000) (unpub.); Director's Exhibit 1-237.
On May 31, 2001, claimant filed a motion to withdraw his 1994 claim. Director's Exhibit 1-216. On June 7, 2001, the district director issued an Order of Withdrawal, granting claimant's motion, to which employer objected. Director's Exhibit 1-208. In the interim, claimant filed a new application for benefits on August 8, 2001 and evidentiary development ensued. Director's Exhibit 1-205. On December 30, 2002, the district director rescinded his prior order granting claimant's request to withdraw his 1994 claim. Director's Exhibit 1-30. Claimant was informed that the district director would treat his August 2001 application for benefits as a request for modification of the denial of his 1994 claim, unless claimant notified the district director, in writing, that he did not wish to seek modification. Director's Exhibit 1-4. Claimant was further advised of his right to file a subsequent claim pursuant to 20 C.F.R. §725.309, on or after October 18, 2001 (one year from the Board's October 18, 2000 decision). Id. Claimant, by counsel, responded that he did not want his August 8, 2001 application for benefits treated as a modification request and, therefore, the case was administratively closed. [2] Director's Exhibits 1-1, 1-2.
Claimant next filed a subsequent claim on April 17, 2003, which is the subject of the instant appeal. Director's Exhibit 2. Judge Mosser (the administrative law judge) accepted the parties' stipulation that claimant had at least thirty years of coal mine employment, and determined that the subsequent claim was timely filed. Based on the newly submitted evidence, as designated by the parties in accordance with the evidentiary limitations at 20 C.F.R. §725.414, [3] the administrative law judge determined that claimant established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), (4), 718.203 and, therefore, he found that claimant demonstrated a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. Considering the merits of the claim, the administrative law judge further determined that the evidence was insufficient to establish a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b). Accordingly, the administrative law judge denied benefits.
Claimant appeals, alleging that the administrative law judge erred by failing to consider the exertional requirements of his usual coal mine work, in conjunction with the opinion of Dr. Baker, prior to finding that claimant was not totally disabled under Section 718.204(b)(2)(iv). Claimant's Brief at 2-4. Claimant also asserts that, insofar as Dr. Simpao did not specifically address whether he was “totally disabled as a result of his pulmonary impairment, ” the Department of Labor has failed to provide claimant with a complete pulmonary evaluation as required under the Act. [4] Claimant's Brief at 5. Employer responds, urging affirmance of the denial of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a response, asserting that, even if Dr. Simpao's opinion is considered to be incomplete on the issue of total disability, a remand for further development of the evidence is not required, as the administrative law judge permissibly determined that Dr. Simpao's diagnosis of a severe respiratory impairment was outweighed by the contrary opinions of Drs. Repsher and Dahhan, that claimant has no respiratory impairment. Director's Letter Brief at 2.
Employer has filed a cross-appeal, asserting that the administrative law judge erred in finding that claimant's subsequent claim was timely filed pursuant to 20 C.F.R. §725.308. Employer also contends that the administrative law judge erred by failing to consider all of the relevant evidence developed in conjunction with the August 2001 claim, [5] including the February 15 and July 29, 2002 medical reports of Dr. Broudy, the February 16, 2003 medical report of Dr. Dahhan, an x-ray reading by Dr. Wheeler of a film dated January 24, 2001, and two x-ray readings by Dr. Barrett of films dated January 24, 2001 and October 24, 2001. Employer's Brief in Support of Cross-Appeal at 12; Director's Exhibits 1-12, 1-13, 1-36, 1-44, 1-92 and 13. Employer further asserts that the administrative law judge erred by failing to consider x-ray readings by Dr. Wheeler, which were allegedly submitted as Employer's Exhibits 2 and 3. Although employer concedes that all of these evidentiary errors are harmless, as they do not alter the administrative law judge's finding that claimant is not totally disabled, employer asks the Board to resolve the evidentiary matters in this case, as they “could be critical in any future litigation.” [6] Employer's Brief in Support of Cross-Appeal at 13. The Director responds to employer's cross appeal, asserting that the administrative law judge erred in finding the August 8, 2001 application to be operative, as that application was effectively withdrawn.
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. [7] 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).
To be entitled to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987).
Initially we address employer's contention that the administrative law judge erred in finding that claimant's April 17, 2003 subsequent claim was timely filed. Employer's Brief at 6-12. Section 422(f) of the Act, 30 U.S.C. §932(f), and its implementing regulation at Section 725.308(a), provide that a claim for benefits must be filed within three years of a medical determination of total disability due to pneumoconiosis which has been communicated to the miner. See 20 C.F.R. §725.308(a). The regulation at Section 725.308(c) provides a rebuttable presumption that every claim for benefits filed under the Act is timely filed. 20 C.F.R. §725.308(c). In Tennessee Consol. Coal Co. v. Kirk, 264 F.3d 602, 22 BLR 2-288 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit stated that it is “employer's burden to rebut the presumption of timeliness by showing that a medical determination satisfying the statutory definition was communicated to [the miner]” more than three years prior to the filing of his/her claim. Kirk, 264 F.3d at 607, 22 BLR at 2-296.
Employer contends that the administrative law judge erred by failing to find that claimant's subsequent claim was not timely filed within three years of the medical report dated February 23, 1994, in which Dr. Baker diagnosed pneumoconiosis and indicated that claimant was totally disabled, from a pulmonary standpoint, from returning to his usual coal mine work. Employer's Brief at 8-9; Director's Exhibit 1. We disagree. The administrative law judge specifically considered employer's argument stating:
The employer...
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