Webber v. Peabody Coal Co., BRB 05-0335 BLA
| Decision Date | 27 January 2006 |
| Docket Number | BRB 05-0335 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RALPH WEBBER Claimant-Petitioner v. PEABODY COAL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order - Denying Benefits of Richard D Mills, Administrative Law Judge, United States Department of Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for claimant.
Mark Solomons and Laura Metcoff Klaus (Greenberg Traurig LLP) Washington, D.C., for employer.
Rita Roppolo (Howard M. Radzely, Solicitor of Labor; Allen H Feldman, 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, McGRANERY, HALL, and BOGGS, Administrative Appeals Judges.
EN BANC
DECISION AND ORDER
NANCY S. DOLDER, Chief Administrative Appeals Judge.
Claimant appeals the Decision and Order - Denying Benefits (03-BLA-5243) of Administrative Law Judge Richard D. Mills rendered on a claim [1] 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). [2] The administrative law judge initially credited claimant with twenty-two years of coal mine employment, [3] as stipulated by the parties, and found a forty-five pack-year smoking history. The administrative law judge found that the x-ray evidence was in equipoise and did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1), that the computerized tomography (CT) scan evidence was uniformly negative and thus did not establish the existence of pneumoconiosis, and that the weight of the medical opinion evidence further failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Thus, the administrative law judge concluded that claimant failed to establish the existence of pneumoconiosis through any of the four means by which pneumoconiosis may be established pursuant to 20 C.F.R. §718.202(a). [4] Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge erred in admitting into the record, over his objection, interpretations by Drs. Wiot and Renn of a May 14, 2002 digital x-ray and a May 14, 2002 CT scan, as well as the deposition testimony of Dr. Wiot, pursuant to 20 C.F.R. §§718.101, 718.102, 718.107, and 725.414. Claimant further argues that the administrative law judge erred in finding a forty-five pack-year smoking history, and erred in his analysis of the medical evidence when he found that claimant failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4). Employer responds, urging affirmance of the administrative law judge's evidentiary rulings and the denial of benefits. The Director, Office of Workers' Compensation Programs (the Director), has submitted a limited response addressing the administrative law judge's evidentiary rulings. [5] Claimant filed a reply brief reiterating his contentions, to which employer responded. [6]
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). The Board reviews the administrative law judge's procedural rulings for abuse of discretion. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc).
The administrative law judge admitted into evidence three positive and two negative interpretations of a conventional x-ray dated June 14, 2001, and one positive and two negative interpretations of a May 14, 2002 digital x-ray. Decision and Order at 2-3. Claimant asserts that the administrative law judge erred in admitting into the record, as employer's affirmative evidence, the negative interpretations by Drs Wiot and Renn of the May 14, 2002 digital x-ray because the digital x-ray is not in substantial compliance with the applicable quality standards set forth at 20 C.F.R. §§718.101(b), 718.102, and Appendix A to 20 C.F.R. Part 718. [7] Petition for Review at 5; Oral Argument Transcript at 35; Director's Exhibit 25; Employer's Exhibit 2. Claimant specifically contends that digital x-rays, while in a new form, are nonetheless a type of x-ray, and, as such, must be in substantial compliance with the applicable quality standards delineated for x-rays set forth at 20 C.F.R. §§718.101(b), 718.102, and Appendix A to Part 718. Petition for Review at 5; Oral Argument Transcript at 35. In support of his position, claimant relies on the regulations, which provide that a clinical test that is not in substantial compliance with the standards for administering the test is insufficient to establish the fact for which it is proffered. 20 C.F.R. §718.101(b); Petition for Review at 5; Harris v. Old Ben Coal Co., BRB No. 04-0812 BLA (Jan. 27, 2006)(en banc)(McGranery and Hall, J.J., concurring and dissenting), Oral Argument Transcript at 19-20. The regulations further provide that no chest x-ray shall constitute evidence of the presence or absence of pneumoconiosis unless documented and reported in compliance with 20 C.F.R. §718.102 and Appendix A to Part 718, which set forth the standards for administering and interpreting chest x-rays, developed in consultation with the National Institute for Occupational Safety and Health (NIOSH). 20 C.F.R. §§718.101(b), 718.102(a), (e); Petition for Review at 5; Harris, Oral Argument Transcript at 19-20. Claimant contends that because neither 20 C.F.R. §718.102 nor Appendix A differentiates between conventional and digital x-rays, but simply references chest x-rays in general, the quality standards set forth at Appendix A were intended to apply to all types of x-rays. Webber, Oral Argument Transcript at 35. Consequently, claimant argues, because digital x-rays do not comply with the quality standards set forth in the regulations, until there are specific quality standards in place for digital x-rays, they cannot be considered acceptable evidence for determining the presence or absence of pneumoconiosis. Petition for Review at 5; Harris, Oral Argument Transcript at 20. Claimant notes that digital x-rays could conceivably be considered “other medical evidence” admissible pursuant to 20 C.F.R. §718.107. [8] Claimant contends, however, that to allow the submission of digital x-rays pursuant to this subsection, which, as written, contains no express numerical limitations on the submission of evidence, would subvert the policy considerations behind the implementation of the evidentiary limitations applicable to x-rays set forth in the revised regulation at 20 C.F.R. §725.414. [9] Harris, Oral Argument Transcript at 21.
The Director asserts that, contrary to claimant's arguments, because 20 C.F.R. 718.202(a)(1) and its referenced provisions, including the quality standards at Appendix A to Part 718, repeatedly reference, and thus presuppose the existence of, “film, ” the quality standards are reasonably interpreted to apply only to conventional, analog x-rays, which utilize film, rather than digital x-rays, which do not. [10] Director's Oral Argument Brief at 4. Therefore, the Director contends, digital x-rays need not be excluded from consideration for noncompliance with the quality standards set forth for x-rays. While the Director agrees with claimant that because digital x-rays do not satisfy the Appendix A quality standards of the Part 718 regulations, digital x-rays should not be considered pursuant to 20 C.F.R. §718.202(a)(1), the Director contends that they are properly considered under the alternative provision at 20 C.F.R. §718.107, which sets forth guidelines for the submission of “other medical evidence, ” and was intended to accommodate new diagnostic techniques as they develop. Director's Oral Argument Brief at 2, 5, citing 65 Fed. Reg. 79945 (Dec. 20, 2000); 62 Fed. Reg. 3343 (Jan 22, 1997).
Initially we recognize that the United States Courts of Appeals have generally given special deference to the Director's position on issues involving the interpretation or application of the Act because the Director is charged with administration of the Black Lung Benefits Act. Cadle v. Director, OWCP, 19 BLR 1-56, 1-62 (1994)(citing collected cases); see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845 (1984). The United States Court of Appeals for the Seventh Circuit, within whose jurisdiction this case arises, has held that “the Director's interpretation of the regulation is controlling unless it is plainly erroneous or inconsistent with the regulation.” Freeman United Coal Mining Co. v. Director, OWCP [Taskey], 94 F.3d 384, 387, 20 BLR 2-348, 2-355 (7th Cir. 1996); see Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 541 n.8, 22 BLR 2-429, 2-445 n.8 (7th Cir. 2002). In addition, we are cognizant that, as employer asserts, such deference may not be due where the Director's position is merely an argument crafted for the purposes of litigation, and does not necessarily represent the agency's considered position. Employer's Supplemental Brief at 3-5, citing Pennington v. Didrickson, 22 F.3d 1376, 1383 (7th Cir. 1994). We hold, however, that in this case, the precise level of deference due the Director's position need not be determined as we find it both reasonable and persuasive. See Hilliard, 292 F.3d at 541 n.8, 22 BLR ...
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