BRB No. 02-0742 BLA
JOHN BILL FOLEY )
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Claimant-Petitioner )
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v. )
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P & M COAL, INCORPORATED ) DATE ISSUED:05/30/2003
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and )
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EMPLOYERS INSURANCE OF WAUSAU )
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Employer/Carrier- )
Respondents )
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LAST CHANCE TRUCKING COMPANY )
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and )
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KENTUCKY COAL PRODUCERS SELF )
INSURANCE FUND )
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Employer/Carrier- )
Respondents )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Sidney B. Douglass, Harlan, Kentucky, for claimant.
Philip J. Reverman (Boehl, Stopher & Graves, LLP), Louisville, Kentucky,
for P & M Coal Company, Incorporated.
Rodney E. Buttermore, Jr. (Buttermore & Boggs), Harlan, Kentucky, for
Last Chance Trucking Company.
Before: SMITH, McGRANERY and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (01-BLA-0304) 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).[1] The
instant case involves a duplicate claim filed on April 28, 1999.[2] After designating P & M
Coal Company (P & M) as the responsible operator and crediting claimant with fourteen years and ten months of
coal mine employment, the administrative law judge found that the evidence was sufficient to establish total
disability pursuant to 20 C.F.R. §718.204(b). The administrative law judge, therefore, found that the
evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).
However, the administrative law judge found that the evidence was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). The administrative law judge also found that
the evidence was insufficient to establish that the miner's total disability was due to pneumoconiosis pursuant to
20 C.F.R. §718.204(c). Accordingly, the administrative law judge denied benefits. On appeal, claimant
argues that the administrative law judge erred in finding that the evidence was insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4). Claimant also contends that
the administrative law judge erred in finding the evidence insufficient to establish that his total disability was due
to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). P & M responds in support of the administrative law
judge's denial of benefits. Last Chance Trucking Company provided notice that it adopted P & M's response
brief. The Director, Office of Workers' Compensation Programs, has not filed a response brief.[3]
The Board must affirm the findings of the administrative law judge if they are supported by substantial
evidence, are rational, and are in accordance with applicable law. 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).
Claimant argues that the administrative law judge erred in finding the x-ray evidence insufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). Claimant contends that
it was unfair for the administrative law judge to rely upon the preponderance of the negative x-ray interpretations
given the fact that claimant's "limited financial resources" precluded him from submitting as many x-ray
interpretations as employer. See Claimant's Brief at 9-10. In his consideration of the x-ray evidence, the
administrative law judge noted that an x-ray interpretation rendered by a physician dually qualified as a B reader
and Board-certified radiologist was entitled to greater weight than an interpretation rendered by a physician
qualified as only a B reader. See Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984); Decision
and Order at 17. The administrative law judge also properly found that inasmuch as the preponderance of the x-ray readings rendered by the best qualified physicians (i.e, physicians qualified as B readers and/or Board-certified radiologists) is negative for pneumoconiosis, the x-ray evidence was insufficient to establish the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).[4] Dixon v. North Camp
Coal Co., 8 BLR 1-344 (1985); Decision and Order at 17. In light of the fact that the administrative law judge
did not rely solely upon the numerical superiority of the readings submitted by employer, but also considered the
qualifications of the physicians submitting the interpretations, claimant's allegation of error regarding employer's
superior resources is without merit. See generally Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR
2-77 (6th Cir. 1993). Therefore, we affirm the administrative law judge's finding that the x-ray evidence is
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).
Claimant also contends that the administrative law judge erred in finding the medical opinion evidence
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). Claimant
contends that the administrative law judge erred in his consideration of Dr. Eubank's opinion. During an August
14, 2001 deposition, Dr. Eubank opined that claimant suffered from chronic obstructive pulmonary disease
attributable to his coal dust exposure, cigarette smoking, and fumes from an auto body job. Claimant's Exhibit
3 at 8. Although Dr. Eubank could not quantify the relative contribution of these causes, she opined that
claimant's coal dust exposure was a "significant contributive cause to his chronic obstructive pulmonary
disease."[5] Id.
Claimant argues that the administrative law judge erred in not according greater weight to Dr. Eubank's
opinion based upon her status as his treating physician.[6] The United States Court of
Appeals for the Sixth Circuit, within whose jurisdiction the instant case arises, has indicated that a treating
physician's opinion may be entitled to more weight than the report of a non-treating or non-examining physician.
See Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995); Tussey v. Island Creek
Coal Co, 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993). In the instant case, although the administrative law
judge recognized that Dr. Eubank diagnosed chronic obstructive pulmonary disease due in part to coal dust
exposure, he noted that Dr. Eubank also stated that she did not diagnose coal workers' pneumoconiosis. Decision
and Order at 18. Therefore, the administrative law judge found that Dr. Eubank's opinion was "internally
inconsistent" and accorded it "no weight." Id.
Contrary to the administrative law judge's finding, Dr. Eubank's diagnosis of chronic obstructive
pulmonary disease attributable in part to coal dust exposure is not "internally inconsistent" with her finding that
claimant did not suffer from coal workers' pneumoconiosis. A finding of either clinical pneumoconiosis,
see 20 C.F.R. §718.201(a)(1), or legal pneumoconiosis, see 20 C.F.R.
§718.201(a)(2),[7] is sufficient to support a finding of pneumoconiosis pursuant to 20
C.F.R. §718.202(a)(4).[8] Dr. Eubank's diagnosis of chronic obstructive pulmonary
disease attributable in part to coal dust exposure, if credited, is sufficient to establish a finding of "legal"
pneumoconiosis. Consequently, we vacate the administrative law judge's finding that the evidence is insufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) and remand the case for
further consideration. On remand, the administrative law judge is instructed to address whether Dr. Eubank's
opinion, when weighed along with the other relevant medical opinion evidence,[9] is
sufficient to establish the existence of "legal" pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4).[10] In his consideration of whether the medical opinion evidence is sufficient to establish the
existence of "legal" pneumoconiosis, the administrative law judge should not consider the fact that the physicians
of record opined that claimant did not suffer from "clinical" pneumoconiosis. See 20 C.F.R. §718.202(a)(1).
Claimant also contends that the administrative law judge erred in finding the evidence insufficient to
establish that his total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). In finding
that the evidence was insufficient to establish that claimant's total disability was due to pneumoconiosis, the
administrative law judge acknowledged that his finding was based in part upon his finding that claimant "did not
establish the existence of pneumoconiosis." See Decision and Order at 20. In light of our decision to
vacate the administrative law judge's finding that the medical opinion evidence is insufficient to establish the
existence of pneumoconiosis, we also vacate the administrative law judge's finding pursuant to 20 C.F.R.
§718.204(c) and remand the case for further consideration.[11] See Adams v.
Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th Cir. 1989).
Accordingly, the administrative law judge's Decision and Order denying 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
____________________________________
REGINA C. McGRANERY
Administrative Appeals Judge
____________________________________
PETER A. GABAUER, Jr.
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 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
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2) The relevant procedural history of the instant case is as follows: Claimant initially filed
a claim for benefits on March 5, 1991. Director's Exhibit 31-216. By Order dated August 29, 1991, the district
director ordered claimant to show cause, within thirty days, why his claim should not be denied by reason of
abandonment. Director's Exhibit 31-145. On November 29, 1991, the district director denied benefits, noting that
"[o]ur initial finding [on August 29, 1991] that you cannot be found entitled to benefits for the reason(s) previously
given remains unchanged by the additional evidence and information." Director's Exhibit 31-144. The district
director subsequently denied benefits on January 25, 1993. Director's Exhibit 31-143. There is no indication that
claimant took any further action in regard to his 1991 claim.
Claimant filed a second claim on April 28, 1999. Director's Exhibit 1.
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3) Inasmuch as no party challenges the administrative law judge's findings pursuant to 20
C.F.R. §§725.309 (2000), 718.202(a)(2), (a)(3) and 718.204(b), these findings are affirmed.
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4) The administrative law judge found that of the twenty-eight x-ray interpretations of
record, only six are positive for pneumoconiosis. Decision and Order at 17. The administrative law judge further
found that of the fifteen x-ray interpretations rendered by physicians dually qualified as B readers and Board-certified radiologists, only three are positive for pneumoconiosis. Id. Of the eight x-ray interpretations
rendered by physicians qualified as B readers, the administrative law judge found that only two are positive for
pneumoconiosis. Id. Although the administrative law judge found that claimant's x-rays taken on May
13, 1992 and November 2, 1992 are positive for pneumoconiosis, the administrative law judge found that
claimant's x-rays taken on July 8, 1991, August 1, 1991, October 7, 1991, March 10, 1992, August 28, 1992,
September 17, 1992, October 23, 1992, May 14, 1999 and June 29, 2000 are negative for pneumoconiosis.
Id. at 17. Because claimant's June 20, 2000 x-ray was read as both positive and negative by equally
qualified physicians, the administrative law judge found that it is insufficient to support a finding of
pneumoconiosis. Id. The administrative law judge also noted that Dr. Umer interpreted claimant's May
25, 1999 x-ray and did not indicate whether he found the presence of pneumoconiosis. Id.
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5) Notwithstanding the fact that claimant had an x-ray interpreted as negative for coal
workers' pneumoconiosis, Dr. Eubank opined that claimant's coal dust exposure was "quite likely" a significant
contributing factor to his chronic obstructive pulmonary disease. Claimant's Exhibit 3 at 8-9. Dr. Eubank further
opined that claimant was totally disabled as a result of his respiratory impairment and that his totally disabling
respiratory impairment was significantly related to his chronic obstructive pulmonary disease. Id. at 9-10.
Although Dr. Eubank conceded, on cross-examination, that it was possible that claimant's entire chronic
obstructive pulmonary disease, and the impairment therefrom, were related solely to cigarette smoking, she further
stated that she believed that claimant's coal dust exposure was a "significant additive factor" in the cause of his
current condition. Id. at 31-32.
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6) Dr. Eubank testified that she had been treating claimant for nine years. Claimant's
Exhibit 3 at 6.
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7) "Legal pneumoconiosis" includes any chronic lung disease or impairment and its
sequelae arising out of coal mine employment. 20 C.F.R. §718.201(a)(2).
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8) In his decision, the administrative law judge recognized the distinction between "legal"
and "clinical" pneumoconiosis. See Decision and Order at 16. The administrative law judge quoted the
definition of each, with the statement that clinical pneumoconiosis includes coal workers' pneumoconiosis. Id.
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9) On remand, the administrative law judge should also address whether Dr. Myers's
opinion is sufficient to establish the existence of "legal" pneumoconiosis. During a September 21, 1992
deposition, Dr. Myers opined that he found no evidence of coal workers' pneumoconiosis. Director's Exhibit 31-19. However, Dr. Myers further stated that:
I would say that [claimant's] pulmonary impairment could be contributed to by his coal mine
employment. It's not the major cause, but certainly is probably one cause of this degree of
obstructive airway disease.
Director's Exhibit 31-19.
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10) Because no party challenges the administrative law judge's determination that the
medical opinion evidence is insufficient to establish the existence of "clinical" pneumoconiosis, this finding is
affirmed. Skrack, supra.
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11) Revised Section 718.204(c)(1) provides that:
A miner shall be considered totally disabled due to pneumoconiosis if pneumoconiosis, as defined
in §718.201, is a substantially contributing cause of the miner's totally disabling respiratory
or pulmonary impairment. Pneumoconiosis is a "substantially contributing cause" of the miner's
disability if it:
(i) Has a material adverse effect on the miner's respiratory or pulmonary condition; or
(ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is
caused by a disease or exposure unrelated to coal mine employment.
20 C.F.R. §718.204(c)(1).
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NOTE: This is an UNPUBLISHED BLA Document.
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