Ward v. Peabody Coal Co.
| Decision Date | 23 June 2010 |
| Docket Number | BRB 09-0546 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | PEGGY RUTH WARD o/b/o and Widow of JOHN C. WARD Claimant- Petitioner/Respondent Cross-Petitioner/Respondent v. PEABODY COAL COMPANY Employer- Petitioner/Respondent Cross-Petitioner/Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Daniel F. Solomon Administrative Law Judge, United States Department of Labor.
Brent Yonts (Brent Yonts, PSC), Greenville, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Emily Goldberg-Kraft (M. Patricia Smith, Solicitor of Labor; 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 and cross-appeals, and claimant [1]appeals and cross-appeals the Decision and Order (07-BLA-6500) of Administrative Law Judge Daniel F. Solomon (the administrative law judge) awarding benefits on a subsequent miner's claim and denying benefits on modification of a survivor's claim filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Public L. No. 111-148 §1556, 124 Sat. 119 (2010)(to be codified at 30 U.S.C. §§921(c)(4) and 932(l)) (the Act). [2] The administrative law judge credited the miner with at least 16 years of coal mine employment based on the parties' stipulation, and adjudicated both the miner's and the survivor's claims pursuant to the regulations contained in 20 C.F.R. Part 718. In considering the miner's claim, the administrative law judge found that the new evidence established the existence of clinical pneumoconiosis [3]pursuant to 20 C.F.R. §718.202(a)(1), (4). Consequently, the administrative law judge found that the new evidence established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. On the merits, the administrative law judge found that the evidence established the existence of clinical pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), (4) and 718.203(b). The administrative law judge also found that the evidence established the existence of legal pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(4) and 718.203(a). In addition, the administrative law judge found that the evidence established that the miner was totally disabled due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge awarded benefits in the miner's claim. With regard to the survivor's claim, the administrative law judge found that the evidence established the existence of clinical pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), (4) and 718.203(b). The administrative law judge also found that the evidence established the existence of legal pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(4) and 718.203(a). However, the administrative law judge found that the evidence did not establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Consequently, the administrative law judge found that claimant did not establish a mistake in a determination of fact pursuant to 20 C.F.R. §725.310. Accordingly, the administrative law judge denied benefits in the survivor's claim.
On appeal, employer challenges the administrative law judge's award of benefits in the miner's claim. Specifically, employer challenges the administrative law judge's finding that the x-ray evidence established the existence of clinical pneumoconiosis at 20 C.F.R. §718.202(a)(1). Employer also challenges the administrative law judge's finding that the medical opinion evidence established the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4). Employer additionally challenges the administrative law judge's finding that the miner's clinical pneumoconiosis arose out of coal mine employment at 20 C.F.R. §718.203(b). Further, employer challenges the administrative law judge's finding that the miner's legal pneumoconiosis arose out of coal mine employment at 20 C.F.R. §718.203(a). In addition, employer challenges the administrative law judge's finding that the evidence established that the miner was totally disabled at 20 C.F.R. §718.204(b)(2)(iii). Lastly, employer challenges the administrative law judge's finding that the evidence established that the miner was totally disabled due to pneumoconiosis at 20 C.F.R. §718.204(c). Claimant responds, urging the Board to affirm the administrative law judge's award of benefits in the miner's claim. Employer filed a brief in reply to claimant's response brief, reiterating its contentions.
Additionally, claimant appeals the administrative law judge's denial of benefits in the survivor's claim. [4] Specifically, claimant challenges the administrative law judge's finding that the evidence did not establish that the miner's death was due to pneumoconiosis at 20 C.F.R. §718.205(c). Employer responds, urging the Board to affirm the administrative law judge's denial of benefits in the survivor's claim. On cross-appeal, employer challenges the administrative law judge's findings that the evidence established the existence of clinical pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(1) and 718.203(b). Employer also challenges the administrative law judge's findings that the evidence established the existence of legal pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(4) and 718.203(a). Further, employer contends that the administrative law judge erred in discrediting the opinions of Drs. Caffrey and Fino, that pneumoconiosis did not cause, contribute to, or hasten the miner's death at 20 C.F.R. §718.205(c), because the doctors opined that the miner did not have pneumoconiosis. The Director, Office of Workers' Compensation Programs (the Director), has declined to participate in the appeals of the miner's and the survivor's claims. [5]
Subsequent to the issuance of the administrative law judge's Decision and Order, amendments to the Act, which became effective on March 23, 2010, were enacted, affecting claims filed after January 1, 2005. The amendments, inter alia, revive Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4), which provides a presumption of total disability due to pneumoconiosis or, relevant to survivor's claims, death due to pneumoconiosis in cases where the claimant has established that the miner had fifteen or more years of coal mine employment and a totally disabling respiratory impairment. 30 U.S.C. §921(c)(4). The amendments also revive Section 422(l) of the Act, 30 U.S.C. §932(l), which holds that an eligible survivor of a miner who filed a successful claim for benefits is automatically entitled to survivor's benefits without the burden of reestablishing entitlement. 30 U.S.C. §932(l).
By Order dated March 30, 2010, the Board permitted the parties to submit supplemental briefing in both the miner's claim and the survivor's claim to address the impact, if any, of the 2010 amendments in this case. In response, employer states that the miner's claim was not affected by the recent amendments because it was filed before January 1, 2005. Employer also states that the recent amendments do not affect the disposition of the survivor's claim, even though it was filed after January 1, 2005, because the administrative law judge's finding that the miner's black lung disease had nothing to do with his death rebuts any presumption of entitlement under 30 U.S.C. §921(c)(4). The Director notes that while the recent amendments do not affect the miner's claim, [6]they affect the survivor's claim. The Director, therefore, urges the Board to vacate the administrative law judge's denial of survivor's benefits and to remand the case to the administrative law judge for consideration of the evidence pursuant to the recent amendments to the Act at Section 411(c)(4). Claimant asserts that she is automatically entitled to an award of survivor's benefits pursuant to the recent amendments to the Act because the miner was receiving benefits at the time of his death.
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. [7] 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).
In order to establish entitlement to benefits in a miner's claim filed pursuant to 20 C.F.R. Part 718, claimant must establish that the miner was 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. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).
Initially we will address employer's contention that the administrative law judge erred in relying on Dr. Baker's opinion in the “Conclusion” section of his decision, as the administrative law judge had previously declined to consider the opinion because it was outside the evidentiary limitations. [8] In the evidence summary form for the miner's claim, claimant listed Dr. Westerfield's September 21, 2004 report and Dr....
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