Williams v. William Brothers Coal Co.
| Decision Date | 22 April 2010 |
| Docket Number | BRB 09-0471 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RANDAL WILLIAMS deceased Claimant-Respondent v. WILLIAMS BROTHERS COAL COMPANY and KENTUCKY COAL PRODUCERS SELF-INSURANCE FUND Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits on Remand of Janice K. Bullard, Administrative Law Judge, United States Department of Labor.
Stephen A. Sanders (Appalachian Citizens Law Center, Inc.) Whitesburg, Kentucky, for claimant.
Ronald E. Gilbertson (K&L Gates LLP), Washington, D.C., for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits on Remand (2005-BLA-05239) of Administrative Law Judge Janice K Bullard, rendered on a miner's subsequent claim [1]filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). [2] This case is before the Board for the second time. In her previous Decision and Order, issued on February 26, 2007, the administrative law judge accepted the parties' stipulation that the miner had at least eighteen years of coal mine employment and adjudicated this claim pursuant to 20 C.F.R. Part 718. After concluding that the claim was timely filed under 20 C.F.R. §725.308, the administrative law judge found that the newly submitted x-ray evidence was sufficient to establish the existence of pneumoconiosis under 20 C.F.R. §718.202(a)(1) and a change in an applicable condition of entitlement under 20 C.F.R. §725.309(d). Considering the claim on the merits, the administrative law judge found that claimant established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge awarded benefits.
Upon consideration of employer's appeal, the Board affirmed, as unchallenged, the administrative law judge's findings, that claimant established total disability pursuant to 20 C.F.R. §718.204(b) and a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d). R.W. [Williams] v. Williams Brothers Coal Co., BRB No. 07-0562 BLA, slip op. at 2 n.1 (Apr. 29, 2008) (unpub.). The Board vacated, however, the administrative law judge's findings under 20 C.F.R. §§725.308, 718.202(a)(1), (4), 718.203(b) and 718.204(c). Id. at 3-6. The Board remanded the case to the administrative law judge with instructions to reconsider the timeliness of the subsequent claim and to consider the earlier x-ray evidence pursuant to 20 C.F.R. §718.202(a)(1). The Board also directed the administrative law judge to make a finding as to whether claimant established the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4). Id. at 6. The Board further directed the administrative law judge to consider, under 20 C.F.R. §718.203(b), the medical opinions regarding the source of the opacities observed on x-ray. Id. Finally, the Board instructed the administrative law judge to reconsider the date of onset, if she determined that claimant established entitlement to benefits. Id.
On remand, the administrative law judge again found that the subsequent claim was timely filed pursuant to 20 C.F.R. §725.308. The administrative law judge also determined that claimant established the existence of clinical pneumoconiosis at 20 C.F.R. §718.202(a)(1) and the existence of legal pneumoconiosis at 20 C.F.R §718.202(a)(4). In addition, the administrative law judge found that employer did not rebut the presumption, set forth in 20 C.F.R. §718.203(b), that claimant's clinical and legal pneumoconiosis arose out of coal mine employment. Lastly, the administrative law judge found that claimant established that he is totally disabled due to pneumoconiosis pursuant to 20 C.F.R §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer alleges that the administrative law judge did not properly weigh the evidence relevant to the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and disability causation at 20 C.F.R. §718.204(c). [3] Employer also contends that the administrative law judge erred in her evaluation of the contrary medical evidence relevant to rebuttal of the presumption that claimant's clinical pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b). Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief. [4]
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. [5] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a miner's claim pursuant to 20 C.F.R. Part 718, claimant must prove that he suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, that he was totally disabled and that his disability was due to pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes a finding of entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
Employer alleges that the administrative law judge erred in discrediting, pursuant to 20 C.F.R. §718.202(a)(4), the opinions in which Drs. Wright, Anderson, Williams and Broudy indicated that claimant's obstructive impairment is not related to coal dust exposure. [6] Employer's Brief at 12-16. We disagree.
Contrary to employer's argument, the administrative law judge acted within her discretion in finding that Dr. Wright's opinion regarding the existence of legal pneumoconiosis [7]was conclusory, as Dr. Wright did not attempt to explain how he concluded that coal dust exposure was not responsible for the “breathing problems he observed.” Decision and Order at 17; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en banc); Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989). Moreover, the administrative law judge permissibly determined that Dr. Anderson's opinion regarding the presence of legal pneumoconiosis was conclusory, as he diagnosed emphysema due to smoking, but “failed to explain why coal dust exposure did not cause [c]laimant's breathing problems.” Decision and Order at 13-14, 17; see Clark, 12 BLR at 1-155; Anderson, 12 BLR at 1-113. In addition, the administrative law judge reasonably concluded that the opinions of Drs. Wright, Anderson, Williams and Broudy were not entitled to any weight because they were based upon examinations that were remote in time. Decision and Order at 17; see Gillespie v. Badger Coal Co., 7 BLR 1-839 (1985); Bates v. Director, OWCP, 7 BLR 1-113 (1984); Kendrick v. Kentland-Elkhorn Coal Co., 5 BLR 1-730 (1983). We affirm, therefore, the administrative law judge's decision to give no weight to the previously submitted opinions of Drs. Wright, Anderson, Williams, and Broudy on the issue of legal pneumoconiosis.
Employer also argues that the administrative law judge erred in her evaluation of the newly submitted medical opinions in which Drs. Fino, Broudy and Forehand addressed the existence of legal pneumoconiosis. In his April 7, 2004 report, Dr. Fino, a Board-certified pulmonologist, noted that claimant has suffered from shortness of breath for the past twenty years. Employer's Exhibit 2. He indicated that claimant worked for thirty-five years as a miner and had a forty year history of cigarette smoking. Id. Dr. Fino observed that claimant's pulmonary function study (PFS) showed a moderate obstructive ventilatory defect with improvement after inhalation of a bronchodilator and that claimant's blood gas study (BGS) reflected a reduced diffusing capacity. Id. Dr. Fino diagnosed moderate obstructive lung disease, probable bullous emphysema and interstitial disease at the bases of the lungs. Id.
In a supplemental report dated September 22, 2005, Dr. Fino again concluded that claimant has significant bullous emphysema, which is causing compression of the lung tissue at the base, and that “there may be a non-coal mine dust-related diffuse pulmonary interstitial fibrosis present.” Employer's Exhibit 3. He opined that claimant has “variable hypoxemia with exercise which argues against . . . [a] coal dust-related pulmonary condition . . . .” Id. He concluded that claimant was “disabled from returning to his last mining job” because of his pulmonary impairments, which were unrelated to his coal mine dust inhalation and are more consistent with bullous emphysema, with the possibility of an idiopathic, non-occupational interstitial pulmonary fibrosis. Id.
Dr Broudy, a Board-certified pulmonologist, testified in a deposition conducted on October 21, 2005, and stated that he treated claimant for breathing difficulties on multiple occasions from 1998 to 2003. Employer's Exhibit 4. He stated that claimant exhibited pulmonary emphysema and post-inflammatory fibrotic type changes seen on x-ray in 1998. Id. He opined that the emphysema on x-ray was due to smoking because smoking is “by far the most common cause...
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