BRB Nos. 99-0591 BLA
and 99-0591 BLA-A
R. K. HOSKINS )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
NALLY & HAMILTON ENTERPRISES ) DATE ISSUED:03/24/2000
)
and )
)
LIBERTY MUTUAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest )
Cross-Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Thomas F. Phalen,
Jr., Administrative Law Judge, United States Department of Labor.
Edmond Collett, Hyden, Kentucky, for claimant.
W. Barry Lewis (Lewis & Lewis Law Office), Hazard, Kentucky, for
employer.
Edward Waldman (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington, D.C., for Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals and employer cross-appeals the Decision and Order (1998-BLA-
0834) of Administrative Law Judge Thomas F. Phalen, Jr., 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).
The administrative law judge credited claimant with twenty and three-quarters years
of coal mine employment based on a stipulation by the parties and adjudicated this
claim pursuant to 20 C.F.R. Part 718. The administrative law judge found that the
evidence was sufficient to establish the existence of pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(4) and total disability pursuant to 20 C.F.R.
§718.204(c)(4), but insufficient to establish total disability due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b). Accordingly, benefits were
denied. On appeal, claimant initially contends that the administrative law judge
erred in failing to find that Dr. Vaezy's medical opinion establishes total
disability due to pneumoconiosis.[1]
Alternatively, claimant contends that if Dr. Vaezy's opinion regarding the cause
of claimant's respiratory impairment is unclear, the Department of Labor has failed
to fulfill its statutory obligation to provide claimant with a complete pulmonary
evaluation. Employer responds, urging affirmance of the denial of benefits and
also cross-appeals, contending that the administrative law judge erred in finding
that the evidence was sufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(4) and total disability pursuant to 20
C.F.R. §718.204(c)(4). The Director, Office of Workers' Compensation Programs
(the Director), responded to claimant's appeal by filing a Motion to Remand,
requesting the Board to remand this case to the district director to obtain
clarification of Dr. Vaezy's opinion regarding the cause of claimant's asthma in
order to fulfill the Director's statutory obligation to provide claimant with a
complete pulmonary evaluation.[2] The Director
also responded to employer's cross-appeal, contesting employer's characterization
of Dr. Vaezy's diagnosis of pneumoconiosis and disability.
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 in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
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 of claimant to establish any one of these
elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987);
Perry v. Director, OWCP, 9 BLR 1-1 (1986).
With regard to employer's arguments on the merits on cross-appeal, employer
raises several contentions regarding the administrative law judge's weighing of the
medical opinion evidence under Sections 718.202(a)(4) and 718.204(c)(4).
Employer's contentions, on the whole, amount to little more than a request to
reweigh the evidence of record. The Board however is not empowered to reweigh the
evidence or substitute its inferences for those of the administrative law judge.
See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989). We
therefore, decline to address, these allegations raised by employer. Nevertheless,
employer raises one argument regarding the administrative law judge's finding of
the existence of pneumoconiosis pursuant to Section 718.202(a)(4), as well as a
contention regarding the administrative law judge's findings under Section
718.204(c)(4), that merit specific consideration.
Employer contends that the administrative law judge erred in finding the
existence of pneumoconiosis established at Section 718.202(a)(4). In weighing the
medical opinions of record, the administrative law judge noted that Drs. Vaezy,
Powell and Burki diagnosed pneumoconiosis while Dr. Brooks did not address the
presence or absence of pneumoconiosis. We reject employer's assertion that Dr.
Vaezy's diagnosis of pneumoconiosis was based solely on his positive x-ray
interpretation. Dr. Vaezy's diagnosis was based on the totality of the medical,
smoking and employment histories, symptoms, and his findings on examination and
testing of claimant. Although the administrative law judge discounted the
probative value of the opinions diagnosing pneumoconiosis, in summary he stated
that "[w]hile the evidence in favor of a finding of pneumoconiosis is not strong,
it is not contradicted by any other medical opinion evidence of record." Decision
and Order at 10. The administrative law judge thus concluded that the existence
of pneumoconiosis was established by a "slight preponderance" of the evidence.
Id. Inasmuch as the administrative law judge weighed all of the medical
opinions and no physician contradicted the opinions of record that found
pneumoconiosis, the administrative law judge's conclusion that the preponderance
of the evidence established the existence of pneumoconiosis pursuant to Section
718.202(a)(4) is not patently unreasonable.
Employer also contends that the administrative law judge erred in concluding
that total disability was established pursuant to Section 718.204(c)(4), asserting
that the administrative law judge improperly gave determinative weight to the
medical opinions which found that claimant's impairment was totally disabling and
failed to consider the exertional requirements of claimant's usual coal mine
employment. In considering whether total disability was established pursuant to
Section 718.204(c)(4), the administrative law judge reasonably determined that the
preponderance of the medical opinion evidence was sufficient to establish total
disability based on the opinions of Drs. Burki and Vaezy, that claimant was totally
disabled, as well as the opinions of Drs. Powell and Brooks, who found obstructive
pulmonary diseases. Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987);
Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (1984); Perry, supra;
Decision and Order at 12-13. Contrary to employer's assertion, the administrative
law judge is not required to compare the exertional requirements of claimant's
usual coal mine employment with the physicians' assessment of claimant's
limitations where the physicians opine that claimant is disabled from any and all
coal mine employment and the Board is not empowered to reweigh the evidence nor
substitute its inferences for those of the administrative law judge. Anderson,
supra; Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988).
Consequently, the administrative law judge acted within his discretion in
concluding that the medical opinions of record established total disability
pursuant to Section 718.204(c)(4) and we reject employer's contentions to the
contrary. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en
banc); Lucostic v. United States Steel Corp., 8 BLR 1-146 (1985).
Turning to the merits of claimant's appeal, claimant asserts that the
administrative law judge erred in evaluating the medical opinion of Dr. Vaezy on
the issue of disability causation pursuant to Section 718.204(b), contending that
if Dr. Vaezy opined that claimant's pulmonary impairment is "mostly related to
asthma" and attributed claimant's asthma to his coal mine employment, then claimant
established that pneumoconiosis was a contributing cause of his total disability
under Adams v. Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th Cir. 1989).
Alternatively, claimant contends that in the event that Dr. Vaezy's opinion is
unclear regarding the cause of claimant's respiratory impairment, then the Director
has failed to fulfill its statutory obligation under the Act to provide claimant
with a complete pulmonary evaluation. In completing the Form CM-988, Dr. Vaezy
diagnosed "COPD/Asthma" and "coal workers' pneumoconiosis," but only listed a
single etiology of "22 years of coal dust exposure" instead of a separate etiology
for each diagnosis. In addition, Dr. Vaezy stated that claimant had a "moderate
obstructive" impairment "mostly related to asthma." Decision and Order at 7;
Director's Exhibit 12. We concur that Dr. Vaezy's opinion is ambiguous with
respect to whether claimant's asthma is related to coal mine employment. Based on
this ambiguity, claimant as well as the Director argue for remand so that the
Director's statutory obligation to provide claimant with a complete, credible
pulmonary examination sufficient to constitute an opportunity to substantiate the
claim, as required by the Act, may be satisfied. 30 U.S.C. §923(b); 20 C.F.R.
§§718.101, 718.401, 725.405(b); Newman v. Director, OWCP, 745 F.2d
1162, 7 BLR 2-25 (8th Cir. 1984); Hodges v. Bethenergy Mines, Inc., 18 BLR
1-84 (1994); Pettry v. Director, OWCP, 14 BLR 1-98 (1990)(en banc);
Hall v. Director, OWCP, 14 BLR 1-51 (1990). We find merit in claimant's
alternative argument and agree with the Director that his obligation has not been
satisfied in this case as Dr. Vaezy failed to specifically address whether
claimant's disabling respiratory condition arose out of coal mine employment and
thus Dr. Vaezy's opinion is not clear on the issue of whether claimant's total
disability is due to pneumoconiosis. As the Director concedes that he has not
satisfied his statutory obligation in the instant case, we vacate the
administrative law judge's denial of benefits and remand the case to the district
director to afford the Director the opportunity to fulfill his statutory
obligation. Newman, supra; Pettry, supra; Hall,
supra. Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed in part, vacated in part and the case is remanded to the
district director to provide for a complete pulmonary examination of claimant and
for reconsideration of the merits of this claim in light of the new evidence.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) The administrative law judge's findings that the evidence of
record was insufficient to establish the existence of pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(1)-(3) and insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(3) are unchallenged on appeal and are
therefore affirmed. Skrack v. Island Coal Creek Co., 6 BLR 1-710 (1983).
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2) In footnote 1 of the Director's July 29, 1999, response brief,
the Director states that employer filed a response to its motion to remand, dated
July 2, 1999, opposing the remand request, but the Board has no record of its
receipt.
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NOTE: This is an UNPUBLISHED BLA Document.
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