Webber v. Peabody Coal Co.
| Decision Date | 15 March 2007 |
| 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 (Jonathan L. Snare, Acting 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 BANCDECISION AND ORDER ON RECONSIDERATION
Claimant and employer have filed timely Motions for Reconsideration requesting that the Board reconsider its Decision and Order dated January 27, 2006 issued in the captioned case, which arises under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). In that decision, the Board held, in part, that in claims arising under the revised regulations: the x-ray standards described in Appendix A to Part 718 do not apply to digital x-rays; that digital x-rays constitute “[o]ther medical evidence” under 20 C.F.R. §718.107(a); and that the admission of digital x-rays is properly considered under Section 718.107, where the administrative law judge must determine, on a case-by-case basis, pursuant to Section 718.107(b), whether the proponent of the digital x-ray evidence has established that it is medically acceptable and relevant to entitlement. Webber v. Peabody Coal Co., 23 BLR 1-123 (2006)(en banc)(Boggs, J., concurring).
The Board further held that the regulation at Section 718.107 is reasonably interpreted to allow for the submission, as part of a party's affirmative case, of one reading of each separate test or procedure undergone by claimant. The Board declined to hold, however, as urged by claimant, that a party may submit only the first, or original, results of each test or procedure, rather than the best interpretation of each test or procedure, as to do so is potentially unworkable, unnecessary, and contrary to the stated goal of the revised regulations to maintain a focus on the quality of the evidence. Instead, the Board held that each party may choose which set of results to submit, for each test or procedure, in order to best support its position. Therefore, the Board vacated the administrative law judge's admission into the record of several readings of a May 14, 2002 computerized tomography (CT) scan and a May 14, 2002 digital x-ray. The Board instructed the administrative law judge to require employer to select and submit only one reading of each test, which the administrative law judge should then consider together with any supporting evidence submitted pursuant to 20 C.F.R. §718.107(b), and in conjunction with any rebuttal evidence submitted by claimant pursuant to 20 C.F.R. §725.414(a)(2)(ii). Id.
In addition, the Board held that where a party offers a physician's statement or testimony to satisfy its burden of proof at 20 C.F.R. §718.107(b) pertaining to the medical acceptability and relevance of “other medical evidence, ” and the proffered statement or testimony contains additional discussion by the physician, the administrative law judge should consider whether the additional comments are admissible pursuant to 20 C.F.R. §§725.414 or 725.456(b)(1). If the additional comments are not admissible, the administrative law judge need not exclude the statement or testimony in its entirely, but may sever and consider separately those portions relevant to 20 C.F.R. §718.107(b). Thus, the Board concluded that under the facts of this case, the administrative law judge properly admitted, pursuant to 20 C.F.R. §718.107(b), the deposition testimony of Dr. Wiot pertaining to the medical acceptability and relevance of digital x-rays and CT scans.
Considering the merits of entitlement, the Board held that the administrative law judge acted within his discretion in severing Dr. Wiot's testimony, pertaining to the medical acceptability and relevance of digital x-rays and CT scans, and considering it separately from the rest of his opinion regarding whether the miner in this case suffered from pneumoconiosis. The Board further held that the administrative law judge permissibly found Dr. Wiot's opinion of little probative value for the purpose of establishing the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4). Id. The Board also affirmed, as supported by substantial evidence, the administrative law judge's finding that the conventional x-ray evidence did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Finally, pursuant to Section 718.202(a)(4), the Board affirmed the administrative law judge's determination to accord less weight to the opinion of Dr. Sparks, but vacated the administrative law judge's conclusion that the weight of the medical opinion evidence failed to establish the existence of pneumoconiosis at Section 718.202(a)(4). The Board remanded the case for further consideration of the medical evidence relevant to the existence of pneumoconiosis. Id.
Both claimant and employer responded to each other's Motion for Reconsideration, and the Director, Office of Workers' Compensation (the Director), also filed a response to each party's motion. Employer replied to the response briefs submitted by both claimant and the Director.
On reconsideration, claimant contests the Board's holding that, because the x-ray standards described in Appendix A to Part 718 do not apply to digital x-rays, the admission of digital x-rays is properly considered under 20 C.F.R. §718.107. Claimant's Brief on Reconsideration at 3. Claimant asserts that, contrary to the Board's discussion in Webber, digital x-rays do utilize film, and, therefore, the quality standards at Appendix A to Part 718 are applicable to digital x-rays. Claimant's Brief on Reconsideration at 3-4. Claimant contends that, therefore, if a digital x-ray is not in substantial compliance with the quality standards, the proper remedy is to exclude that x-ray from the record. Claimant's Brief on Reconsideration at 4. We disagree. Contrary to claimant's argument, as asserted by the Director, while digital x-rays may be viewed on film, they are not captured on film. Thus, we reaffirm our prior holding that the quality standards for analog x-rays, set forth at Appendix A to Part 718, do not apply to digital x-rays. Therefore, we also reaffirm our prior holdings that digital x-rays constitute “other medical evidence, ” and that their admissibility is properly considered at Section 718.107.
We also reject employer's assertion that the Board erred in requiring the parties to establish, pursuant to Section 718.107(b), the medical acceptability of digital x-rays on a case-by-case basis. Employer's Brief on Reconsideration at 7-8. Employer specifically contends that, under the facts of Webber, the Board “held that digital x-rays, like CT-scans…should be admitted because the evidence established that the technology was medically acceptable.” Employer's Brief on Reconsideration at 7. Employer maintains that either a technology is medically acceptable or it is not, and that fact does not change on a case-by-case basis. Rather, employer argues, the only question for an administrative law judge to consider, on a case-by-case basis, is whether a particular film is sufficiently reliable. Employer's Brief on Reconsideration at 7. Contrary to employer's arguments, the Board did not hold in Webber that digital x-rays are medically acceptable. Rather, we simply held, and again hold, that the administrative law judge must determine whether the party proffering “other medical evidence” has established its medical acceptability and relevance pursuant to Section 718.107(b). 20 C.F.R. §718.107(b); Webber, 23 BLR at 1-133.
Employer further challenges the Board's holding that 20 C.F.R §718.107 is reasonably interpreted to allow for the submission, as part of a party's affirmative case, of one reading of each separate test or procedure undergone by claimant. Employer's Brief on Reconsideration at 4. Employer contends that “without explanation or rationale, and without even mentioning Dempsey v. Sewell Coal Co., 23 BLR 1-47, 1-59 (2004)(en banc), the Board did an about-face” and departed from its prior holding therein, that “Section 718.107(a) contains no specific numerical limits.” Employer's Brief on Reconsideration at 3-4. We reject employer's argument as without merit. First, as claimant correctly asserts, employer previously raised substantially the same arguments on appeal. Employer's Supplemental Brief on appeal at 3-6. Second, as the Director correctly points out, contrary to employer's argument, in Webber the Board fully discussed its prior decision in Dempsey and explained why it was necessary to refine its prior interpretation of Section 718.107(a). Webber, 23 BLR at 1-133-135.
Employer also contends that in holding that Section 718.107(a) is reasonably interpreted to allow for the submission of one reading of each separate test or procedure undergone by claimant, as part of a party's affirmative case, the Board...
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