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 . . .." oreover, 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 ]