Young v. Island Creek Coal Co., BRB 09-0574 BLA
| Decision Date | 23 September 2010 |
| Docket Number | BRB 09-0574 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | GERALDINE YOUNG o.b.o. and Widow of ROY D. YOUNG Claimant-Respondent v. ISLAND CREEK COAL COMPANY/ CONSOLIDATION COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Michael P. Lesniak Administrative Law Judge, United States Department of Labor.
John Cline, Piney View, West Virginia, for claimant.
Ashley M. Harman and Douglas A. Smoot (Jackson Kelly PLLC), West Virginia, for employer.
Michelle S. Gerdano (M. Patricia Smith, Solicitor of Labor Rae Ellen 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.
DOLDER, Chief Administrative Appeals Judge:
Employer appeals the Decision and Order (08-BLA-5185 and 08-BLA-5186) of Administrative Law Judge Michael P. Lesniak awarding benefits on a subsequent miner's claim [1]and a survivor's claim [2]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). [3] The administrative law judge credited the miner with 18.9 years of coal mine employment based on the parties' stipulation, and adjudicated these claims pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that the new x-ray evidence established the existence of simple and complicated pneumoconiosis pursuant to 20 C.F.R. §§718.202(a)(1), (2), (4) and 718.304(a)-(c). 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(d). On the merits, the administrative law judge found that the evidence established complicated pneumoconiosis, thereby establishing invocation of the irrebuttable presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.304. The administrative law judge also found that the evidence established that the miner's pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b). Accordingly, the administrative law judge awarded benefits in the miner's claim. With respect to the survivor's claim, the administrative law judge found that the evidence established the existence of simple and complicated pneumoconiosis pursuant to 20 C.F.R. §§718.202(a) and 718.304, thereby establishing invocation of the irrebuttable presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.304. The administrative law judge also found that the evidence established that the miner's pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b). Accordingly, the administrative law judge awarded benefits in the survivor's claim.
On appeal, employer challenges the administrative law judge's finding, in the miner's claim, that the evidence established the presence of complicated pneumoconiosis at 20 C.F.R. §718.304(a), (b) and (c). Employer also challenges the administrative law judge's finding, in the survivor's claim, that the evidence established the presence of complicated pneumoconiosis at 20 C.F.R. §718.304(b) and (c). Claimant responds, urging affirmance of the administrative law judge's award of benefits in both claims. The Director, Office of Worker's Compensation Programs (the Director), has declined to file a response brief in this appeal.
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. [4] 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).
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. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).
Where a miner files a claim for benefits more than one year after the final denial of a previous claim, the subsequent claim must also be denied unless the administrative law judge finds that “one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(d). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(d)(2). The miner's prior claim was denied because the evidence was insufficient to establish the existence of pneumoconiosis or that the miner was totally disabled due to pneumoconiosis. Consequently, in order to establish a change in an applicable condition of entitlement, claimant had to submit new evidence establishing one of these elements. 20 C.F.R. §725.309(d)(2), (3); see generally Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227, 2-235-237 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995).
Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), as implemented by 20 C.F.R. §718.304 of the regulations, provides that there is an irrebuttable presumption of total disability due to pneumoconiosis or death due to pneumoconiosis if the miner suffered from a chronic dust disease of the lung which, (A) when diagnosed by chest x-ray, yields one or more large opacities (greater than one centimeter in diameter) classified as Category A, B, or C; (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (C) when diagnosed by other means, is a condition which would yield results equivalent to (A) or (B). 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. The introduction of legally sufficient evidence of complicated pneumoconiosis does not automatically qualify a claimant for the irrebuttable presumption found at 20 C.F.R. §718.304. In determining whether claimant has established invocation of the irrebuttable presumption of total disability due to pneumoconiosis at Section 718.304, the administrative law judge must weigh together all of the evidence relevant to the presence or absence of complicated pneumoconiosis. Lester v. Director, OWCP, 993 F.2d 1143, 1145-46, 17 BLR 2-114, 2-117-18 (4th Cir. 1993); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33-34 (1991)(en banc). Additionally, the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has held that “[b]ecause prong (A) sets out an entirely objective scientific standard” for diagnosing complicated pneumoconiosis, that is, an x-ray opacity greater than one centimeter in diameter, the administrative law judge must determine whether a condition which is diagnosed by biopsy or autopsy under prong (B) or by other means under prong (C) would show as a greater-than-one-centimeter opacity if it were seen on a chest x-ray. Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 255, 22 BLR 2-93, 2-100 (4th Cir. 2000); Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 243, 22 BLR 2-554, 2-561 (4th Cir. 1999).
Initially, we will address employer's contentions in the miner's claim. Employer contends that the administrative law judge erred in finding that the x-ray evidence was sufficient to establish the presence of complicated pneumoconiosis at 20 C.F.R. §718.304(a). Specifically, employer argues that the administrative law judge erroneously characterized the x-ray interpretations of Drs. Wheeler, Wiot, Bellotte, and Kim as “equivocal, ” given that they unequivocally found that complicated pneumoconiosis was not present and attributed the nodules and x-ray changes to various probable etiologies, such as tuberculosis or granulomatous disease. Employer asserts that the administrative law judge erred in considering of the physicians' comments, as the ILO x-ray form is not designed for a physician to explain why x-rays are consistent with one condition or another. Employer maintains that the administrative law judge improperly shifted the burden of proof to employer to “rule out” the existence of complicated pneumoconiosis by affirmatively proving that the abnormal masses, consistently identified by the interpreting physicians of record, are due to a process other than pneumoconiosis. Employer also argues that the administrative law judge selectively and improperly analyzed the evidence, failed to consider the evidence in its entirety, and failed to adequately discuss his findings, as required under the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C. §919(d) and 5 U.S.C. §554(c)(2). [5]
The record consists of thirty-three interpretations of sixteen x-rays dated from 1979 to 2005. [6] Although the administrative law judge noted the x-rays that were read as positive for complicated pneumoconiosis, he also noted that a greater number of the x-ray interpretations were read as negative for pneumoconiosis. Nevertheless, the administrative law judge stated that “the conflicting interpretations of one x-ray should be evaluated to determine whether the individual x-ray is negative or positive” and that “[c]onflicts between x-rays should then be weighed...
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