BRB No. 98-1493 BLA
WALTER SHELL )
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Claimant-Respondent )
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v. )
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SOUTHERN HILLS MINING COMPANY, )
INCORPORATED )
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and )
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KENTUCKY COAL PRODUCERS ) DATE ISSUED:03/17/2000
SELF-INSURANCE FUND )
)
Employer/Carrier- )
Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in Interest ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Donald W. Mosser,
Administrative Law Judge, United States Department of Labor.
James D. Holliday, Hazard, Kentucky, for claimant.
Denise M. Davidson (Barret, Haynes, May, Carter & Roark, P.S.C.), Hazard,
Kentucky, for employer/carrier.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON, Acting
Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (96-BLA-0814) of
Administrative Law Judge Donald W. Mosser denying benefits on a claim 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). This case,
involving a 1994 claim, is before the Board for the second time. In a Decision and
Order dated December 17, 1996, the administrative law judge, after crediting
claimant with twenty-eight years of coal mine employment, found the x-ray evidence
sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1). The administrative law judge further found that claimant was
entitled to a presumption that his pneumoconiosis arose out of his coal mine
employment pursuant to 20 C.F.R. §718.203(b). The administrative law judge also
found that the evidence was sufficient to establish total disability pursuant to
20 C.F.R. §718.204(c). Finally, the administrative law judge determined that the
evidence was sufficient to establish that claimant's total disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b). Accordingly, the
administrative law judge awarded benefits. By Decision and Order dated January 6,
1998, the Board affirmed the administrative law judge's length of coal mine
employment finding and his findings pursuant to 20 C.F. R. §§718.202(a)(1) and
718.203(b) as unchallenged on appeal. Shell v. Southern Hills Mining Co., BRB No. 97-0539 BLA (Jan.
6, 1998)(unpublished). The Board also affirmed the administrative law judge's findings that the evidence was sufficient
to establish total disability pursuant to 20 C.F.R. §718.204(c)(1) and (c)(4). Id. The
Board, however, vacated the administrative law judge's finding that the evidence
was sufficient to establish that claimant's total disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b) and remanded the case for
further consideration. Id.
On remand, the administrative law judge found that the evidence was sufficient
to establish that claimant's total disability was due to pneumoconiosis pursuant
to 20 C.F.R. §718.204(b). Accordingly, the administrative law judge awarded
benefits. On appeal, employer challenges the administrative law judge's finding
pursuant to 20 C.F.R. §718.204(b). Claimant responds in support of the
administrative law judge's award of benefits. The Director, Office of Workers'
Compensation Programs, has not filed a response brief.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational and are consistent with applicable law, they are binding
upon this Board and may not be disturbed. 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 under Part 718 in a living
miner's claim, claimant must establish the existence of pneumoconiosis, that the
pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is
totally disabling. See 20 C.F.R. §§718.3, 718.202, 718.203,
718.204. Failure to prove any one of these elements precludes entitlement.
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee v. W. G. Moore and
Sons, 9 BLR 1-4 (1986)(en banc); Perry v. Director, OWCP, 9 BLR
1-1 (1986)(en banc).
Employer contends that the administrative law judge erred in finding the
evidence sufficient to establish that claimant's total disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b). In his reconsideration of the
evidence, the administrative law judge considered the opinions of Drs. Baker,
Dahhan and Caudill.[1] The administrative law
judge discredited Dr. Baker's opinion, finding that his opinion regarding the
etiology of claimant's pulmonary disability was "too equivocal."[2] Decision and Order on Remand at 3. The
administrative law judge accorded less weight to Dr. Dahhan's opinion that
claimant's pursuant disability was entirely due to cigarette smoking because Dr.
Dahhan "rejected outright the possibility that an obstructive disease could be
caused by coal mine employment." Id. The administrative law judge found
that the opinion of claimant's treating physician, Dr. Caudill, supported a finding
that claimant's coal mine employment was "more than a de minimus" cause of
his disability. Id. at 2. The administrative law judge further found that
Dr. Caudill's opinion was "sufficiently documented and reasonable." Id. The
administrative law judge, therefore, found that the evidence was sufficient to
establish that claimant's total disability was due pneumoconiosis pursuant to 20
C.F.R. §718.204(b).
Employer argues that administrative law judge erred in finding that Dr.
Caudill's opinion was sufficient to support a finding that claimant's total
disability pursuant to 20 C.F.R. §718.204(b). The United States Court of Appeals
for the Sixth Circuit, within whose jurisdiction this case arises, has held that
the opinions of treating physicians are entitled to greater weight than those of
non-treating physicians. See Tussey v. Island Creek Coal Co., 982 F.2d
1036, 17 BLR 2-16 (6th Cir. 1993). However, a medical opinion must be reasoned and
documented before an administrative law judge may accord it determinative weight
based on the physician's status/expertise. See Griffith v. Director, OWCP,
49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995). In the instant case, the Board remanded
the case to the administrative law judge with instructions to determine whether Dr.
Caudill's opinion was sufficiently documented and reasoned to establish that
claimant's respiratory disability was due at least in part to pneumoconiosis
pursuant to 20 C.F.R. §718.204(b). Shell, supra.
On remand, the administrative law judge noted that Dr. Caudill's opinion
regarding total disability was based not only on his examinations and knowledge of
claimant, but also on his review of claimant's pulmonary function studies.
Decision and Order on Remand at 2. The administrative law judge, therefore, found
that Dr. Caudill's opinion was "sufficiently documented and reasonable." Id. While
the administrative law judge provided a basis for finding Dr. Caudill's opinion
sufficiently documented, the administrative law judge failed to provide a
sufficient explanation for his finding that Dr. Caudill's opinion was sufficiently
reasoned. We, therefore, must remand the case to the administrative law judge to
reconsider whether Dr. Caudill's opinion regarding the etiology of claimant's total
disability is sufficiently reasoned.
Employer also contends that the administrative law judge erred in discrediting
Dr. Dahhan's opinion. The administrative law judge accorded less weight to Dr.
Dahhan's opinion that claimant's pulmonary disability was entirely due to cigarette
smoking because Dr. Dahhan "rejected outright the possibility that an obstructive
disease could be caused by coal mine employment." Decision and Order on Remand at
3. Although the administrative law judge does not provide any support for his
rationale in discrediting Dr. Dahhan's opinion, we note the administrative law
judge's reasoning is similar to that expressed by the United States Court of
Appeals for the Fourth Circuit in Warth v. Southern Ohio Coal Co., 60 F.3d
173, 19 BLR 2-265 (4th Cir. 1995). In Warth, the Fourth Circuit held that
an administrative law judge should not rely on a physician's opinion that a miner
does not suffer from pneumoconiosis when it is based on an assumption that
obstructive disorders cannot be caused by coal mine employment. However, the
Fourth Circuit subsequently clarified its holding in Warth. Specifically,
in Stiltner v. Island Creek Coal Co., 86 F.3d 337, 20 BLR 2-246 (4th Cir.
1996), the Fourth Circuit explained that administrative law judges are not
precluded from relying on physicians' opinions that are not based upon the
erroneous assumption that coal mine employment can never cause chronic obstructive
pulmonary disease.
Because the instant case arises with the jurisdiction of the United States
Court of Appeals for the Sixth Circuit, the administrative law judge is not bound
by Fourth Circuit precedent. Moreover, the administrative law judge did not
provide any support for his finding that Dr. Dahhan "rejected outright the
possibility that an obstructive disease could
be caused by coal mine employment." Decision and Order on Remand at 3.
Consequently, we remand the case to the administrative law judge for
reconsideration of Dr. Dahhan's opinion.
In light of the need to reconsider the opinions of Drs. Caudill and Dahhan,
we vacate the administrative law judge's finding that the evidence is sufficient
to establish that claimant's total disability is due to pneumoconiosis and remand
the case for further consideration.
Accordingly, the administrative law judge's Decision and Order on Remand
awarding benefits is affirmed in part and vacated in part, and the case is remanded
for further consideration consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge accurately noted that the United States Court of Appeals for the Sixth
Circuit, within whose jurisdiction this case arises, has held that a claimant must establish that his totally disabling
respiratory impairment is due "at least in part" to his pneumoconiosis. Adams v. Director, OWCP, 886 F.2d
818, 13 BLR 2-52 (6th Cir. 1989).
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2)Inasmuch as claimant raises no assertions of error on the part of the administrative law judge in
finding Dr. Baker's opinion too equivocal to establish the cause of claimant's impairment pursuant to 20 C.F.R.
§718.204(b), that finding is affirmed as unchallenged on appeal. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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