RECENT SIGNIFICANT DECISIONS
MONTHLY DIGEST # 149 Black Lung Benefits Act
August - September 2000
AA. Simpson, Jr.
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
II. Black Lung Benefits Act
A. Circuit Courts of Appeal
In Cornett v. Benham Coal,
Inc., ___ F.3d ___, Case No. 99-3469 (6th Cir. Sept. 7, 2000), the court held that it
"is clearly an inappropriate reason to reject a physician's opinion" which is based
upon non-qualifying pulmonary function study values "as the regulations explicitly provide
(that) a doctor can make a reasoned medical judgment that a miner is totally disabled even
'where pulmonary function tests and/or blood-gas studies are medically contraindicated.' 20
C.F.R. § 718.204(c)(4)." Moreover, the circuit court emphasized the distinction
between legal and medical pneumoconiosis. Under 20 C.F.R. § 718.201, a miner need
only establish that his chronic respiratory and pulmonary impairment is significantly related to, or
substantially aggravated by dust exposure in coal mine employment. A miner's exposure to coal
mine employment must merely contribute "at least in part" to his pneumoconiosis.
With regard to finding pneumoconiosis based upon medical opinion evidence, the circuit court
held that, if a physician bases his or her finding of coal workers' pneumoconiosis only upon the
miner's history of coal dust exposure and a positive chest x-ray, then the opinion "should
not count as a reasoned medical judgment under § 718.202(a)(4)." However, the
court found that the opinions of Drs. Veazy and Baker were not, as characterized by the
administrative law judge, based only upon the miner's exposure to coal dust. Rather, in addition
to consideration of coal mine employment and chest x-rays, the physicians "considered
their examinations of Cornett, his history in the mines, his history as a smoker and pulmonary
functions studies." In this vein, court held that a medical opinion attributing the miner's
respiratory impairment to his smoking history on grounds that pulmonary function testing
produced a purely obstructive defect was not well-reasoned. The court stated the following:
Each of the three doctors unfavorable to Cornett reported that his respiratory
problems were caused by his smoking habit only. If this is so, Cornett's
ailments do not qualify as statutory pneumoconiosis. See 20 C.F.R.
§ 718.201. But, of the three, only Dr. Fino attempted to explain his
rationale for completely excluding Cornett's exposure to coal dust as an
aggravating factor. Dr. Fino attributed Cornett's obstructive lung disease solely to
cigarette smoking because, in his opinion, the pulmonary function tests were not
consisted with 'fibrosis as would be expected in simple coal workers'
pneumoconiosis. What the ALJ did not consider in his opinion is that, although
'fibrosis' is generally associated with 'medical' pneumoconiosis, it is not a
required element of the broader concept of 'legal' pneumoconiosis. Cf.
Hobbs, 45 F.3d at 821. The legal definition does not require 'fibrosis' but
instead requires evidence that coal dust exposure aggravated the respiratory
condition. See Southard, 732 F.2d at 71-72. Unlike Dr. Fino, Drs.
Broudy and Dahhan make no attempt to explain on what basis they believe that
coal dust exposure did not contribute to Cornett's respiratory problems. By
contrast, the opinions of Drs. Vaezy and Baker which, as noted, were discredited
by the ALJ as having an inadequate basis clearly address the statutory
requirements by acknowledging that coal dust, while not conclusively the cause of
Cornett's condition, was certainly an aggravating factor, contributing to Cornett's
respiratory impairment.
With regard to the element of total disability, the court held that a finding of total
disability may be made by a physician who compares the exertional requirements of the miner's
usual coal mine employment against his physical limitations. Finally, in a footnote, the
circuit court held that South East Coal Company was the employer with which Claimant last
worked for a cumulative period of one year. However, the court found that the record
demonstrated that South East Coal was bankrupt and, "looking back" to the next
most recent operator for which the miner worked for at least one year, Benham Coal was found
to be liable for the payment of benefits.
[ legal versus medical pneumoconiosis; medical opinion evidence; bankruptcy of
employer ]
In Crowe v. Director, OWCP, ___ F.3d ___, Case No. 97-2381 (7th
Cir., Aug. 21, 2000), the Seventh Circuit held that its holding in Sahara Coal did not
apply where the miner's first claim was denied on purely procedural grounds such that his second
filing was "merely (an attempt) to relitigate his original claim." The court reasoned
that, when the miner's "illiteracy is considered in conjunction with his lack of
representation and the misinformation provided by the representative from the social security
office, we are of the opinion that it would be unfair and improper to hold that the procedural
denial of the petitioner's initial claim is sufficient to deprive him of an opportunity with the
assistance of counsel to advance his 1990 claim on the merits of his health condition."
[ duplicate claims ]
B. Benefits Review Board
In Stewart v. Wampler Brothers Coal Co., ___ B.L.R. ___, BRB
No. 99-0246 BLA (July 31, 2000) (en banc), a case arising in the Sixth Circuit, Employer
challenged the progressivity of pneumoconiosis to argue that a determination of such an issue
must be made on a case-by-case basis. The Board rejected this position to state that the Sixth
Circuit "has accepted the Department of Labor's view that pneumoconiosis is progressive .
. .." As a result, the Board held that a determination that pneumoconiosis is progressive
constituted "law of the case." In addition, the Board held that the Sixth
Circuit's adoption of the one-element standard in Ross did not create an irrebuttable
presumption that a claimant, who establishes an element of entitlement previously adjudicated
against him, has also established a material change in conditions. The Board stated that
"[w]hile the one-element standard enunciated in Ross imposes in increased burden
on claimant to prove a material change in conditions, it does not change employer's evidentiary
burden or the type of evidence relevant to the issue" such that a reopening of the record is
not required. Finally, in reviewing evidence under § 725.309, the Board held that
the Sixth Circuit's rejection of the later evidence rule in Woodward v. Director, OWCP,
991 F.2d 314 (6th Cir. 1993), where the earlier x-ray evidence was positive and later x-ray
evidence was negative, was consistent with the duplicate claim standard enunciated in
Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir. 1994), wherein a material change in
conditions was established through the weighing evidence submitted subsequent to the denial of
the prior claim. The Board upheld its requirement that, under Ross, the administrative
law judge must find that the new evidence differs "qualitatively" from evidence
submitted with the prior claim in order for a material change in conditions to be established.
Said differently, it is insufficient to find a material change in conditions based upon newly
submitted evidence without conducting a comparison of such evidence against evidence
submitted with the previous claim to determine whether the evidence "differs
qualitatively," thus demonstrating that the miner condition has worsened.
[ progressivity of pneumoconiosis; material change in conditions; later evidence
rule ]
In Allen v. Mead Corp., 22 B.L.R. 1-61 (2000), the Board
overruled its holding in Shupink v. LTV Steel Co., 17 B.L.R. 1-24 (1992) and adopted the
Director's position for establishing a material change in conditions under § 725.309, to
wit: a claimant must establish, by a preponderance of the evidence developed subsequent to
the denial of the prior claim, at least one of the elements of entitlement previously adjudicated
against him. As a result, where the administrative law judge concluded that the newly submitted
evidence did not establish the presence of pneumoconiosis but failed to address the issue of
whether the evidence supported a finding that the miner was totally disabled, a ground upon
which the prior claim was denied, the judge's decision was vacated. On remand, the
administrative law judge was directed to analyze the newly submitted evidence to determine
whether Claimant was totally disabled under § 718.204(c) before finding no material
change in conditions.
[ material change in conditions, standard for establishing ]
In Pukas v. Schuylkill Contracting Co., 22 B.L.R. 1-69 (2000), the
Board held that an administrative law judge is required to hold a hearing on modification even
where the petition for modification was filed with the district director. The Board noted that,
only when both parties waive their right to a hearing or request summary judgment, may the
administrative law judge not hold a hearing.
[ right to hearing on a modification petition ]
In Hilliard v. Old Ben Coal Co., BRB No. 99-0933 BLA (June 30,
2000)(unpub.), after being adjudicated as entitled to benefits, the miner died and Employer filed
a petition for modification. The Board held that the ALJ properly denied Employer's request for
a reopening of the record on modification despite Employer's assertion that its counsel acted
negligently in defending the claim. The Board stated that "the general rule is that a party is
bound by the actions of its attorney, no matter how negligent or incompetent . . .."
Moreover, the Board noted that "a party dissatisfied with the actions of its freely chosen
counsel has a separate action against such counsel in another forum for his negligence."
The Board noted that the assessment of a modification petition "involves a balancing of the
interest in maintaining the finality of decisions against the interest in rendering justice under the
Act." Under the facts of the case, the Board held that it was proper for the ALJ to decline
to reopen the record on modification as the evidence proffered by Employer, "which
included numerous readings of x-rays dated prior to the initial Decision and Order awarding
benefits and the reports of Drs. Fino, Castle, and Renn concerning reviews of evidence of the
same vintage, could have been obtained before the miner's claim for benefits was adjudicated or
when employer's first request for modification was before Judge Burke." The Board
further upheld the ALJ's denial of permission for Employer to obtain the miner's autopsy report
as the miner died two years prior to Judge Burke's denial of Employer's first modification petition
and Employer "could have sought and submitted this report at an earlier juncture."
[ party bound by acts of representative; denial of reopening of record on
modification ]