BRB No. 00-0636 BLA
BRUCE M. ERDMAN )
)
Claimant-Petitioner )
)
v. )
)
MERCURY COAL COMPANY ) DATE ISSUED:05/30/2001
)
and )
)
AMERICAN MINING INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT OF )
LABOR )
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Benefits on Remand from the
Benefits Review Board of Paul H. Teitler, Administrative Law Judge, United
States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Sean B. Epstein (Pietragallo, Bosick & Gordon), Pittsburgh, Pennsylvania, for
employer.
Edward Waldman (Judith E. Kramer, Acting 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 the Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denial of Benefits on Remand from
the Benefits Review Board (97-BLA-1243) of Administrative Law Judge Paul H. Teitler
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).[1] Claimant filed an application for black
lung benefits in February 1994. Director's Exhibit 1. On June 14, 1995 the
administrative law judge issued a Decision and Order denying benefits. Director's
Exhibit 60. In that decision, the administrative law judge found that claimant did
not establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(a)(4)(2000). Accordingly, benefits were denied. Claimant
appealed, and on March 22, 1996, the Board affirmed the administrative law judge's
Decision and Order denying benefits. Director's Exhibit 68; Erdman v. Mercury
Coal Co., BRB No. 95-1776 BLA (Mar. 22, 1996)(unpub.). On November 12, 1996,
claimant filed a request for modification, submitting new evidence. Director's
Exhibit 69. On June 12, 1998, the administrative law judge issued a Decision and
Order Denying Benefits. Therein, the administrative law judge determined that
claimant had been totally disabled at the time of the prior filing. However, the
existence of pneumoconiosis was still not established. By Decision and Order dated
July 16, 1999, the Board remanded this matter for further consideration of the x-ray evidence pursuant to 20 C.F.R. §718.202(a)(1)(2000). Erdman v. Mercury
Coal Co., BRB No. 98-1338 BLA (July 16, 1999)(unpub.).
On remand, the administrative law judge found that the newly submitted x-ray
evidence was sufficient to establish the existence of pneumoconiosis under Section
718.202(a)(1)(2000). Decision and Order at 3. Further, the administrative law
judge found that, when weighing all of the relevant evidence, including evidence
other than x-ray evidence, apparently pursuant to Penn Allegheny v.
Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997), the positive x-ray readings
were sufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(2000). Decision and Order at 3. In addition, the administrative law
judge found that claimant's pneumoconiosis arose out of coal mine employment under
20 C.F.R. §718.203(b)(2000).[2] Decision and
Order at 3. However, the administrative law judge concluded that claimant failed
to establish total disability due to pneumoconiosis as required by 20 C.F.R.
§718.204(b)(2000). Decision and Order at 4. Accordingly, benefits were
denied.
On appeal, claimant argues that the administrative law judge erred in finding
that claimant's totally disabling respiratory impairment was not caused, at least
in part, by his coal workers' pneumoconiosis. Employer responds, advocating
affirmance of the administrative law judge's denial of benefits. The Director,
Office of Workers' Compensation Programs (the Director), has submitted a letter
indicating that he will not respond to the current appeal unless specifically
requested to do so by the Board.
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 the Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief and stayed, for the duration of the lawsuit, all
claims pending on appeal before the Board under the Act, except for those in which the Board, after briefing by the parties
to the claim, determines that the regulations at issue in the lawsuit will not affect the outcome of the case. National
Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting preliminary injunction). In the present
case, the Board established a briefing schedule in an Order issued on February 21, 2001, to which the Director and claimant
have responded. The Director and claimant take the position that the new regulations will not affect the case. No response
has been received from employer.[3] Based on the briefs submitted
by the Director and claimant, and our review, we hold that the disposition of this
case is not impacted by the challenged regulations. Therefore, the Board will
proceed to adjudicate the merits of this appeal.
With regard to causation of disability,[4]
claimant first argues generally that the administrative law judge erred by failing
to provide an explanation for his findings as required by the Administrative
Procedure Act. 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 5
U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a);
Claimant's Brief at 8; see also Claimant's Brief at 10. This argument does
not have merit. The administrative law judge credited the negative opinions of
Drs. Galgon, Cable and Kaplan over the reports of Dr. Kraynak because the opinions
of Drs. Galgon, Cable and Kaplan were better reasoned and better documented and
because their qualifications were superior. The administrative law judge also
stated that there were discrepancies between the objective laboratory data and Dr.
Kraynak's findings. In addition, the administrative law judge stated that Dr.
Galgon specifically found that claimant's pulmonary disability was the result of
smoking, and that his findings were supported by the opinions of Drs. Cable and
Kaplan. Decision and Order at 4.
Claimant also argues that the administrative law judge erred in crediting the
opinions of Drs. Galgon, Cable and Kaplan because these physicians did not have the
benefit of the positive chest x-ray readings of record and did not consider the x-ray evidence as a whole. Claimant's Brief at 9; see also Claimant's Brief
at 12.[5] This argument is without merit, since
x-ray evidence is not relevant to the cause of disability. See generally Pettry
v. Director, OWCP, 14 BLR 1-98, 1-100 (1990).
Claimant additionally argues that the administrative law judge erred in not
finding causation established based on Dr. Kraynak's opinion. Specifically,
claimant avers that Dr. Kraynak's opinion was consistent with the objective
laboratory data, and that Dr. Kraynak provided ample basis for distinguishing the
effects of cigarette smoking on claimant's disability from that of his coal
workers' pneumoconiosis. Claimant's Brief at 11-12. Claimant contends generally
that Dr. Kraynak's opinion is well reasoned, and there is nothing in the case law,
or in this record, which would support a rejection of his opinion on the issue of
causation. Claimant's Brief at 12. These arguments by claimant are without merit.
The administrative law judge's findings that the existence of pneumoconiosis and
totally disabling respiratory impairment were established do not mandate a finding
of causation, nor do they necessarily mean that Dr. Kraynak's opinion regarding
causation is consistent with the objective laboratory data insofar as causation is
concerned. See generally Rice v. Sahara Coal Co., Inc., 15 BLR 1-19, 1-22
(1990); see also Tucker v. Director, OWCP, 10 BLR 1-35, 1-41 (1987). The
administrative law judge gave valid reasons for crediting the opinions of Drs.
Galgon, Cable and Kaplan over the opinion of Dr. Kraynak. Specifically, the
administrative law judge credited these physicians because their opinions were
better reasoned and documented and because their qualifications were superior.
See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-155 (1989)(en
banc)(reasoned); Worhach v. Director, OWCP, 17 BLR 1-105, 1-110
(1993)(documented); Price v. Peabody Coal Co., , 7 BLR 1-671, 1-675
(1985)(qualifications). In addition, the administrative law judge stated that Dr.
Galgon specifically found that claimant's pulmonary disability was the result of
smoking, and that his findings were supported by the opinions of Drs. Cable and
Kaplan. Decision and Order at 4; see generally Beatty v. Danri
Corp., 16 BLR 1-11, 1-15 n.4 (1991).
Claimant argues that the administrative law judge erred in crediting the
opinions of Drs. Cable and Kaplan because they are remote in time. Claimant's
Brief at 12. This argument lacks merit. The administrative law judge is not
required to consider the most recent evidence as determinative. See Keen v.
Jewell Ridge Coal Corp., 6 BLR 1-454, 1-459-460 (1983); see generally
Kowalchick v. Director, OWCP, 893 F.2d 615, 620-621, 13 BLR 2-226, 2-236-237
(3d Cir. 1990).
Claimant additionally argues that the administrative law judge erred in
crediting Dr. Galgon's opinion because it was less than well reasoned.[6] Claimant's Brief at 12-14. We reject claimant's
argument. The administrative law judge, in his 2000 Decision and Order, referred
to his 1998 Decision and Order as containing his reasons for finding that Dr.
Galgon's report was well reasoned. 2000 Decision and Order at 4. In his 1998
Decision and Order, the administrative law judge stated:
I find Dr. Galgon's opinion to be well-documented and
well-reasoned. He obtained a pulmonary function study
post-bronchodilator which showed some reversibility and
normal vital capacity. He persuasively explained how
those changes are not consistent with coal workers'
pneumoconiosis, which every physician of record agrees
does not respond to bronchodilators and causes primarily
a restrictive defect. The results of the pulmonary
function study, as well as of the other tests, provide a
solid basis for Dr. Galgon's finding that Claimant does
not have pneumoconiosis and that the obstruction is
related to cigarette smoking. I therefore give his
opinion greater weight than that of Dr. Kraynak, and as
such, find that pneumoconiosis has not been established
under §718.202(a)(4).
1998 Decision and Order at 13. The administrative law judge did
not err in crediting Dr. Galgon's opinion as well reasoned. See
generally Clark, supra at 1-155.
Claimant argues that the administrative law judge erred in
crediting Dr. Galgon's opinion because it is inimical to the Act.
Claimant's Brief at 14-16. Claimant's argument must be rejected.
Claimant avers, accurately, that Dr. Galgon holds the belief that
symptoms of coughing and shortness of breath decrease after a
person leaves coal mine employment. Employer's Exhibit 2,
Deposition at 42, lines 20-24, Deposition at 43, lines 3-7; but
see Deposition at 26. Claimant's Brief at 14. Claimant
maintains, accurately, that Dr. Galgon testified that increased
coughing is not consistent with coal dust disease or cigarette
smoking. Employer's Exhibit 2, Deposition at 43, lines 3-11;
see also Deposition at 42, lines 21-24. Claimant's Brief at
14.[7] Nevertheless, Dr. Galgon's
belief does not rise to the level of hostility, which has been
narrowly construed. See Searls v. Southern Ohio Coal Co., 11
BLR 1-161, 1-164 (1988).
Next, claimant argues that the administrative law judge did
not explain his rejection of Dr. Kraynak's report. Claimant's
Brief at 10. This argument has merit. The administrative law
judge discounted Dr. Kraynak's opinion because of "discrepancies
found between objective laboratory data and Dr. Kraynak's
findings." Decision and Order at 4. Claimant correctly contends
that this is not an adequate explanation. See 5 U.S.C.
§557(c)(3)(A), as incorporated into the Act by 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a).
Further, we note that laboratory data is not generally relevant to
causation of disability. See Tucker, supra at 1-41
(pulmonary function studies and blood gas studies are not
diagnostic of the etiology of the respiratory impairment, but are
diagnostic only of the severity of the impairment); see
generally Pettry, supra, 14 BLR at 1-100. On remand,
the administrative law judge should reconsider this issue.
Claimant argues that the administrative law judge erred by
relying upon his previous Decision and Order to determine the
reasonableness of the medical opinion evidence on the issue of
causation. Claimant's Brief at 9; see also Claimant's Brief
at 10. Specifically, claimant contends that the administrative law
judge's review of the medical opinion evidence in the previous
Decision and Order was with respect to establishing the existence
of pneumoconiosis under Section 718.202(a)(4)(2000). Thus, the
question is whether in this instance the administrative law judge's
Section 718.202 analysis has equal application at the new Section
718.204(c) causation regulation. The issue of total disability is
separate and distinct from the issue of the existence of
pneumoconiosis and each of these issues requires an independent
weighing of the relevant evidence in the record. See Rice,
supra. Therefore, we vacate the administrative law judge's
finding on the issue of disability causation and remand for further
consideration.
Further, claimant avers that since Drs. Galgon, Cable and
Kaplan failed to diagnose pneumoconiosis, their opinions are
incompetent to address the role that pneumoconiosis played in
claimant's respiratory impairment. Claimant's Brief at 9; see
also Claimant's Brief at 12. This argument by claimant has no
merit. In support of his argument, claimant cites Trujillo v. Kaiser Steel Corp., 8 BLR
1-472 (1986). Claimant's Brief at 10. Contrary to claimant's suggestion, the Board, in
Trujillo, held that the administrative law judge acted within his discretion in rejecting a
doctor's opinion on causation on the basis that its underlying premise, that the miner did not have
pneumoconiosis, was inaccurate. Trujillo, supra at 1-473.[8] Employer correctly points out
that the United States Court of Appeals for the Fourth Circuit has
held in Ballard that a physician's opinion, despite the fact
that it is premised on the understanding that the miner does not
suffer from coal workers' pneumoconiosis, may be probative evidence
worthy of consideration. Employer's Brief at 5; DeHue Coal Co.
v. Ballard, 65 F.3d 1189, 19 BLR 2-304, 2-314-315 (4th Cir.
1995); but see id., 19 BLR at 2-316 n.4. On remand, the
administrative law judge may reconsider the evidence pursuant to
Ballard in this case arising within the jurisdiction of the
United States Court of Appeals for the Third Circuit. See
Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en
banc); see also Hobbs v. Clinchfield Coal Co., 45 F.3d
819, 19 BLR 2-86, 2-94 (4th Cir. 1995).
Accordingly, the administrative law judge's Decision and Order
- Denial of Benefits on Remand is affirmed in part and vacated in
part and remanded for further consideration by the administrative
law judge.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations implementing
the Federal Coal Mine Health and Safety Act of 1969, as amended. These regulations became
effective on January 19, 2001, and are found at 65 Fed. Reg. 80, 045-80, 107 (2000)(to be codified
at 20 C.F.R. Parts 718, 722, 725 and 726). All citations to the regulations, unless otherwise noted,
refer to the amended regulations.
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2) We affirm, as uncontested on appeal, the administrative law judge's
findings, on remand, that the existence of pneumoconiosis was established pursuant to 20 C.F.R.
§718.202(a)(2000), and that claimant's pneumoconiosis arose out of coal mine employment
under 20 C.F.R. §718.203(b)(2000). See Skrack v. Island Creek Coal Co.,
6 BLR 1-710 (1983).
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3) Pursuant to the Board's instructions, the failure of a party to submit
a brief within twenty days following receipt of the Board's Order issued on February 21, 2001,
would be construed as a position that the challenged regulations will not affect the outcome of this
case.
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4) The provision pertaining to disability causation, previously set out at
20 C.F.R. §718.204(b), is now found at 20 C.F.R. §718.204(c) while the provision
pertaining to total disability, previously set out at 20 C.F.R. §718.204(c), is now found at 20
C.F.R. §718.204(b).
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5) Claimant states that Dr. Galgon is neither Board-certified nor Board-eligible in radiology. Claimant also states that Dr. Galgon's film was reread by five Board-certified
radiologists who were also B readers as positive for pneumoconiosis. Claimant's Brief at 12-13.
The administrative law judge was not required to discredit Dr. Galgon's opinion for this reason.
See Trumbo v. Reading Anthracite Co., 17 BLR 1-85, 1-88 (1993).
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6) Claimant provides an extensive discussion of Dr. Galgon's deposition
testimony. Claimant's Brief at 13-14; Employer's Exhibit 2.
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7) Claimant correctly contends that Dr. Galgon testified that a diagnosis
of coal worker's pneumoconiosis cannot be made on x-ray findings alone. Employer's Exhibit 2,
Deposition at 34, lines 19-21; Claimant's Brief at 15. This testimony is not contrary to the spirit of
the Act. See Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d
Cir. 1997). Further, claimant contends that Dr. Galgon's opinion is predicated upon his belief that
obstructive lung disease does not become evident until "typically beginning around category III."
Employer's Exhibit 2, Deposition at 43, lines 21-23; Claimant's Brief at 14. In addition, claimant
states that Dr. Galgon is of the opinion that the FEV1 would not be affected by coal workers'
pneumoconiosis until a person reaches category III. Employer's Exhibit 2, Deposition at 46, lines
18-24. Claimant avers that Dr. Galgon's belief is not recognized by the governing regulations.
Claimant's Brief at 15. Claimant's argument is without merit. A medical report is properly rejected
as hostile if it forecloses any possibility that simple pneumoconiosis can be disabling.
Searls v. Southern Ohio Coal Co., 11 BLR 1-161, 1-164 (1988).
Category III pneumoconiosis is simple pneumoconiosis. 20 C.F.R. §§718.102(b)(2000),
718.304(a)(2000).
Employer suggests that claimant's argument that Dr. Galgon's
opinion is inimical to the Act is untimely and has been waived
because claimant did not raise this issue before the administrative
law judge. This argument is rejected, inasmuch as claimant raised
this issue in a letter memorandum brief submitted to the
administrative law judge on November 3, 1999. Letter at 13.
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8) Claimant also cites three Court of Appeals cases in support of his
argument. Claimant's Brief at 9-10. In Cort v. Director, OWCP, 996 F.2d 1549, 17 BLR
2-166 (3d Cir. 1993), the United States Court of Appeals for the Third Circuit held that 20 C.F.R.
§727.203(b)(3) assumes total disability and limits rebuttal to instances where disability was
caused by some other disease. Id. at 2-170. Grigg v. Director, OWCP, 28 F.3d 416,
18 BLR 2-299 (4th Cir. 1994) has been superseded by Hobbs v. Clinchfield Coal Co., 45
F.3d 819, 19 BLR 2-86, 2-90, 2-92 (4th Cir. 1995). In Tussey v. Island Creek Coal Co., 982
F.2d 1036, 17 BLR 2-16 (6th Cir. 1993), the United States Court of Appeals for the Sixth Circuit
held that a doctor's opinion that the miner did not have coal workers' pneumoconiosis, already
established by the x-ray evidence, deprived the doctor's observations regarding total disability of any
probative value. Id. at 2-24. We hold that these three cases do not support claimant's
argument, especially since they were decided before Hobbs and Ballard.
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NOTE: This is an UNPUBLISHED BLA Document.
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