W.M. v. Whitaker Coal Corp.
| Decision Date | 25 June 2009 |
| Docket Number | BRB 08-0586 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | W.M. Claimant-Respondent v. WHITAKER COAL CORPORATION Employer-Petitioner 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UNPUBLISHED OPINION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 Daniel A. Sarno, Jr. Administrative Law Judge, United States Department of Labor.
Ronald E. Gilbertson (K & L Gates LLP), Washington, D.C., for employer.
Barry H. Joyner (Carol A. DeDeo, Deputy Solicitor; Rae Ellen Frank James, 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
Employer appeals the Decision and Order on Remand (2004-BLA-6327) of Administrative Law Judge Daniel A. Sarno, Jr., awarding benefits with respect to 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). This case has been before the Board several times. In its most recent Decision and Order, the Board vacated the administrative law judge's determination that the applications for benefits that claimant filed on April 9, 2002 and April 17, 2003, merged with the claim he filed on March 22, 1996. [1] W.M. v Whitaker Coal Corp., BRB Nos. 07-0300 BLA and 07-0300 BLA-A, slip op. at 6-7 (Dec. 31, 2007) (unpub.). The Board held that claimant's April 9, 2002 application was properly withdrawn and instructed the administrative law judge to treat the April 17, 2003 filing as a subsequent claim and to consider whether it was timely filed pursuant to 20 C.F.R. §725.308. Id. at 7. The Board also instructed the administrative law judge to apply the evidentiary limitations set forth in 20 C.F.R. §725.414 to the evidence submitted subsequent to the denial of the claim filed on March 22, 1996. Id. at 8.
On remand, the administrative law judge admitted the evidence designated by the parties on their evidence summary forms and determined that the subsequent claim filed on April 17, 2003 was timely under Section 725.308. The administrative law judge further found that claimant established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d), as the newly submitted evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), (4). With respect to the merits of entitlement, the administrative law judge incorporated the findings from his prior Decision and Order by reference and determined that claimant established the existence of pneumoconiosis arising out of coal mine employment under 20 C.F.R. §§718.202(a), 718.203(b), and total disability due to pneumoconiosis under 20 C.F.R. §718.204(b)(2), (c). Accordingly, the administrative law judge awarded benefits.
Employer argues on appeal that the administrative law judge erred in admitting the medical report of Dr. Simpao and in according diminished weight to the medical opinions of Drs. Dahhan and Broudy because they were based, in part, upon inadmissible evidence. Employer also contends that the administrative law judge did not properly weigh the evidence relevant to Sections 718.202(a)(1), (4), and 718.204(b)(2)(iv), (c). Claimant has not filed a response brief in this appeal. The Director, Office of Workers' Compensation (the Director), has filed a limited response, in which he urges the Board to reject employer's allegation of error regarding the admission of Dr. Simpao's report. [2]
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law. [3] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
As we first address employer's arguments concerning the administrative law judge's evidentiary rulings, we must review the relevant procedural history. When claimant filed a second application for benefits on April 9, 2002, the district director treated it as an initial claim and arranged for claimant to be examined by Dr. Simpao on June 17, 2002. Director's Exhibits 1-193, 9A. The district director subsequently issued a letter dated March 24, 2003, in which claimant was advised that the district director's prior order granting claimant's request to withdraw his 1996 claim had been issued in error and, therefore, was vacated. Director's Exhibit 1-11. The district director also informed claimant that his April 9, 2002 application would be treated as a request for modification of the denial of his 1996 claim, unless claimant indicated in writing that he did not wish to seek modification. Id. By letter dated April 14, 2003, claimant notified the district director that his April 9, 2002 application should not be treated as an appeal or modification request. Director's Exhibit 1-4. Claimant then filed a claim on April 17, 2003, which was treated as a subsequent claim. Director's Exhibit 3.
The administrative law judge first considered Dr. Simpao's medical report in his Decision and Order Awarding Living Miner's Benefits issued on December 4, 2006. The administrative law judge determined that Dr. Simpao's positive reading of the x-ray dated June 17, 2002, when considered in conjunction with positive interpretations of subsequent x-rays, was sufficient to establish the existence of pneumoconiosis under Section 718.202(a)(1). 2006 Decision and Order at 9; Director's Exhibit 9A. The administrative law judge further relied, in part, upon Dr. Simpao's opinion to find that claimant established the existence of pneumoconiosis at Section 718.202(a)(4) and total disability due to pneumoconiosis at Section 718.204(b)(2)(iv), (c). 2006 Decision and Order at 11, 14-16. Employer argued in its appeal of the award of benefits that the administrative law judge erred in considering Dr. Simpao's report, as it was developed in conjunction with claimant's withdrawn modification request. The Board vacated the award of benefits and remanded the case to the administrative law judge with instructions to determine whether Dr. Simpao's report was admissible in light of the evidentiary limitations set forth in Section 725.414. W.M., BRB Nos. 07-0300 BLA and 07-0300 BLA-A, slip op. at 8.
On remand, the administrative law judge found that Dr Simpao's report was admissible because it was designated by claimant on his evidence summary form and it did not exceed the evidentiary limitations at Section 725.414(a)(2)(i). 2008 Decision and Order at 6. Employer contends that the district director had no authority to procure Dr. Simpao's report because claimant's April 9, 2002 filing was treated as a request for modification, rather than an initial claim, and was later withdrawn. Employer further maintains, therefore, that Dr. Simpao's report could not be admitted into the record. In response, the Director contends that the district director acted properly in arranging for claimant to be examined by Dr. Simpao. According to the Director, because the March 4, 2002 order granting claimant's request to withdraw his 1996 claim was still in effect when claimant filed his second application for benefits on April 9, 2002, the district director properly treated this filing as an initial claim. The Director maintains that pursuant to the requirement that “[e]ach miner who files a claim . . . be provided an opportunity to substantiate his or her claim by means of a complete pulmonary evaluation, ” 30 U.S.C. §923(b), as implemented by 20 C.F.R. §§718.101(a), 725.406, the district director had the authority to obtain Dr. Simpao's report. The Director further asserts that the fact that claimant's April 9, 2002 claim became a withdrawn request for modification did not negate the district director's authority at that time to arrange an additional pulmonary evaluation to address any unresolved medical questions or to correct flaws in the pulmonary evaluation provided in conjunction with the denied claim. Director's Letter Brief at 3, citing 20 C.F.R. §725.407(a) (1999); Cline v. Director, OWCP, 917 F.2d 9, 14 BLR 2-102 (8th Cir. 1990).
After review of the record and consideration of the arguments presented by the parties on appeal, we hold that the administrative law judge properly admitted Dr. Simpao's report into the record. Claimant requested withdrawal of the application for benefits filed on March 22, 1996, while his appeal of Administrative Law Judge Rudolf L. Jansen's Decision and Order denying benefits was pending before the Board. Director's Exhibit 1-215. On January 11, 2002, the Board remanded the case to the district director for consideration of claimant's request. [W.M. ] v. Whitaker Coal Corp., BRB No. 01-0704 BLA (unpub Order) (Jan. 11, 2002); Director's Exhibit 1-212. At that time, the accepted interpretation of 20 C.F.R. §725.306 allowed a claimant to withdraw a claim at any time prior to a denial of benefits becoming final. [4] Based upon this understanding, the district director issued an order dated March 4, 2002, granting claimant's withdrawal request. Director's Exhibit 1-202. When claimant filed a second application for benefits on April 9, 2002, the district director, in accordance with Section 725.306(b), treated the 1996 claim as if it had never been filed and processed the April 9, 2002 application as an initial claim. Director's Exhibit 1-193. The district director then arranged to have claimant examined...
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