Filed: May 27, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1789 WILLIAMS MOUNTAIN COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; DEWEY LEE COMPTON, Respondents. On Petition for Review of an Order of the Benefits Review Board. (07-0720-BLA) Argued: March 25, 2009 Decided: May 27, 2009 Before MOTZ, TRAXLER, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. ARGUED: William Steele Mattingly, JACKSON KELLY PLLC, Morgantown, W
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1789 WILLIAMS MOUNTAIN COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; DEWEY LEE COMPTON, Respondents. On Petition for Review of an Order of the Benefits Review Board. (07-0720-BLA) Argued: March 25, 2009 Decided: May 27, 2009 Before MOTZ, TRAXLER, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. ARGUED: William Steele Mattingly, JACKSON KELLY PLLC, Morgantown, We..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1789
WILLIAMS MOUNTAIN COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; DEWEY
LEE COMPTON,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(07-0720-BLA)
Argued: March 25, 2009 Decided: May 27, 2009
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. Daniel H. Ennis,
WASHINGTON & LEE UNIVERSITY, Black Lung Clinic, School of Law,
Lexington, Virginia; Jeffrey Steven Goldberg, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Gregory F. Jacob, Solicitor of Labor, Rae Ellen Frank
James, Acting Associate Solicitor, Sean G. Bajkowski, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Federal Respondent. Timothy C.
MacDonnell, Mary Z. Natkin, WASHINGTON & LEE UNIVERSITY, Black
Lung Clinic, School of Law, Lexington, Virginia, for Respondent
Dewey Lee Compton.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this case brought under the Black Lung Benefits Act
(“the Act”), see 30 U.S.C.A. §§ 901-944 (West 2007), Williams
Mountain Coal Company (“the Employer”) petitions for review of
an order of the Benefits Review Board (“Board”) affirming an
administrative law judge’s award of benefits. We deny the
petition.
I.
Dewey Compton worked in coal mining for approximately 32
years, beginning in 1964. His last year working in a mine was
1996, when he worked for the Employer as an electrician. He
filed his first black lung claim in 1998. Compton was examined
by several doctors in conjunction with this claim although only
one, Dr. Donald Rasmussen, is relevant to this appeal.
Dr. Rasmussen first evaluated Compton in 1999 and
determined that Compton’s pneumoconiosis left him totally
disabled. His finding of total disability was based on the
moderate loss of respiratory function that Compton exhibited
while exercising, combined with the difficult physical
requirements of Compton’s last coal mining job.
When the District Director awarded benefits, the Employer
requested a formal hearing with an administrative law judge
(“ALJ”). After this hearing took place on June 6, 2000, Judge
3
Robert Lesnick (“ALJ1”) denied benefits. In so doing, he
credited the opinions of other doctors who had considered
clinical test results that Dr. Rasmussen had not reviewed. ALJ1
also observed that Dr. Rasmussen “appear[ed] to have slightly
overstated the exertion requirements” of Compton’s final coal
mining job. J.A. 456. The Board affirmed the denial on appeal.
Compton filed a subsequent benefits claim in 2003. Based
on new test results, Dr. Rasmussen found Compton’s condition had
worsened and found that Compton’s resting arterial blood gas
test results were within one mmHg of the federal standards for
automatic qualification for total disability. Based on the new
evidence, and the difficult physical requirements of Compton’s
last mining job, Dr. Rasmussen again found Compton to be totally
disabled.
The Employer had two experts examine Compton. First, Dr.
James R. Castle evaluated Compton on May 26, 2004. Based on
Compton’s blood gas results, Dr. Castle found that Compton was
impaired but not totally disabled. Although he diagnosed
clinical pneumoconiosis, Dr. Castle opined that Compton’s coal
mine dust exposure did not contribute to Compton’s impairment,
which Dr. Castle attributed to Compton’s history of smoking.
Dr. Robert J. Crisalli examined Compton on November 22, 2004.
He concluded that Compton did not have pneumoconiosis at all but
4
rather that he suffered from tuberculosis. Dr. Crisalli also
concluded that Compton was not totally disabled.
Compton also sought an opinion from Dr. Robert A. C. Cohen.
After examining all of the medical evidence, Dr. Cohen
determined that Compton was totally disabled. He based his
opinion on the impairment in Compton’s oxygen transfer and on
the physical requirements of his last job. Dr. Cohen also
agreed with Dr. Rasmussen and Dr. Castle that Compton had
clinical pneumoconiosis arising out of coal mining employment.
Based on the new evidence, the District Director again
awarded benefits, and the Employer again requested a hearing
before an ALJ. On April 25, 2006, Judge Michael Lesniak
(“ALJ2”) held a formal hearing. After examining the evidence,
ALJ2 also awarded benefits. On the issue of total disability,
he credited the opinions of Drs. Rasmussen and Cohen over the
opinions of Drs. Castle and Crisalli in concluding that Compton
was totally disabled. The Board affirmed on appeal.
II.
The Employer first argues that the Board erred in affirming
the benefits award because, in light of the doctrine of issue
preclusion, ALJ2 erred in reconsidering the physical
requirements of Compton’s last coal mine job found by ALJ1. We
disagree.
5
As is relevant here, the Act provides benefits to coal
miners who are totally disabled because of pneumoconiosis. See
30 U.S.C.A. 901(a). One way that a claimant can prove that he
is totally disabled is by proving that his respiratory or
pulmonary condition prevents him from engaging in his usual coal
mine work or comparable work. See 20 C.F.R. § 718.204(b)(1)
(2008). A miner’s usual coal mine work is his most recent coal
mining job. See Walker v. Director, 927 F.2d 181, 183 (4th Cir.
1991).
ALJ1 found Compton’s last mining job required him to “lift
items weighing about 40 to 50 pounds, but occasionally, he would
lift items weighing 100 pounds or more.” J.A. 446. He added
that if “items were too heavy to carry they were lifted by a
scoop.” J.A. 446. In contrast, Dr. Rasmussen had stated in his
1999 report that Compton “carried tools weighing 50 to 70”
pounds. J.A. 40. In the end, ALJ1 chose not to credit Dr.
Rasmussen’s opinion that Compton could not perform his usual
coal mining work because Dr. Rasmussen had relied “upon isolated
abnormal arterial blood gas studies, without considering the
clinical test results obtained by other physicians.” J.A. 456.
ALJ1 also noted, though, that “Dr. Rasmussen appears to have
slightly overstated the exertion requirements of [Compton’s]
last usual coal mine job.” J.A. 456.
6
In considering Compton’s subsequent benefits claim, ALJ2
recounted the evidence regarding Compton’s work requirements
before finding that the record supported Dr. Rasmussen’s
assessment that Claimant’s usual coal mine job “involved heavy
and some very heavy lifting.” J.A. 504 (ALJ2’s opinion). We
note initially that even assuming that ALJ2 was required to
accept ALJ1’s conclusion that Dr. Rasmussen had slightly
exaggerated Compton’s job requirements in his 1999 opinion, we
see no indication that ALJ2 did not accept it. His agreement
with Dr. Rasmussen’s assessment that Compton’s last job
“involved heavy and some very heavy lifting” does not foreclose
the possibility that Dr. Rasmussen’s 1999 account of the
specific weight amounts that Compton was required to lift was
indeed slightly exaggerated.
In any event, ALJ1’s statement that Dr. Rasmussen’s 1999
opinion appeared to slightly overstate the physical demands of
Compton’s job was not binding on ALJ2. The applicable
Department of Labor (“DOL”) regulation states that “[i]f the
claimant demonstrates a change in one of the applicable
conditions of entitlement, no findings made in connection with
the prior claim, except those based on a party’s failure to
contest an issue . . ., shall be binding on any party in the
adjudication of the subsequent claim.” 20 C.F.R.
§ 725.309(d)(4) (2008). In this case, the denial of Compton’s
7
initial claim rested on his failure to establish total
disability. Utilizing Dr. Rasmussen’s new medical report
finding total disability based on new test results, Compton
demonstrated a material change in one of the applicable
conditions of entitlement, and therefore no findings ALJ1 made
in connection with Compton’s prior claim were binding on ALJ2.
See 20 C.F.R. § 725.202(d) (2008) (including total disability as
a condition of entitlement). And, to the extent that the
Employer argues that ALJ2 should be bound by ALJ1’s assessment
because no facts had changed since the earlier decision, the
Employer is simply incorrect. Dr. Rasmussen opined in 2003,
based on a new medical examination and testing, that Compton’s
condition had worsened since he provided his prior opinion.
ALJ1’s statement that Dr. Rasmussen appeared to have
slightly overstated the requirements of Compton’s job was also
not binding on ALJ2 because it was not the sole basis for ALJ1’s
decision. “[H]oldings in the alternative, either of which
independently would be sufficient to support the result, are not
conclusive with respect to either issue standing alone.” Lisa
Lee Mines v. Director, 86 F.3d 1358, 1363 (4th Cir. 1996) (en
banc) (internal quotation marks and alterations omitted). As
the Board correctly found in its decision affirming ALJ1’s
denial of benefits, ALJ1 offered the statement in question only
as an alternative basis for crediting the other doctors’
8
opinions over Dr. Rasmussen’s. The primary basis was that Dr.
Rasmussen had relied “upon isolated abnormal arterial blood gas
studies, without considering the clinical test results obtained
by other physicians.” J.A. 456 (ALJ1’s decision).
III.
The Employer also argues that in light of ALJ1’s decision
not to credit Dr. Rasmussen’s 1999 opinion, our decision in
Consolidation Coal Co. v. Williams, 453 F.3d 609, 618 (4th Cir.
2006), obligated ALJ2 to treat Dr. Rasmussen’s 2003 opinion,
which the Employer maintains was not materially different from
the 1999 opinion, as a misdiagnosis as a matter of law. We
disagree.
Williams concerned 20 C.F.R. § 725.308(a) and our decision
in Lisa Lee Mines. Section 725.308(a) provides in relevant part
that
[a] claim for benefits filed under this part by, or on
behalf of, a miner shall be filed within three years
after a medical determination of total disability due
to pneumoconiosis which has been communicated to the
miner or a person responsible for the care of the
miner, or within three years after the date of
enactment of the Black Lung Benefits Reform Act of
1977, whichever is later.
20 C.F.R. § 725.308(a) (2008). In Lisa Lee Mines, we held that
finality concerns attaching to a prior denial of black lung
benefits require that the legal conclusion underlying a prior
9
denial—that the miner was not eligible for benefits at that
time—must be accepted when a miner makes a subsequent claim for
benefits. See Lisa Lee Mines, 86 F.3d at 1361. For that
reason, we held that a miner was not required to prove that he
actually had not been entitled to benefits at the time of a
prior denial in order to show that a material change in
conditions had occurred since that time that entitled him to
benefits. See id. at 1362-63; see also 20 C.F.R. § 725.309(d)
(2008) (requiring denial of subsequent claims unless the
claimant demonstrates a material change in conditions).
The claimant in Williams received his original diagnosis of
pneumoconiosis in 1995 but lost his initial case in 1996. He
later filed a second claim in 2001, which he won. Because the
claimant had been medically diagnosed with totally disabling
pneumoconiosis in 1995, the coal company argued on appeal to us
that 20 C.F.R. § 725.308 barred the claimant from filing any
claim more than three years after that diagnosis. We disagreed.
Relying in part on Lisa Lee Mines, we held that any medical
diagnosis that the miner had received at the time of the denial
and that was inconsistent with the denial would be treated, for
legal purposes, as a misdiagnosis, and thus would not trigger
the statute of limitations. See Williams, 453 F.3d at 616. In
so holding, we emphasized the remedial nature of the Act and the
need to interpret it favorably to miners and noted the “chilling
10
effect” that would be created by adopting a contrary rule
because some miners would be discouraged from seeking early
diagnoses. Id. at 618.
The Employer now argues that under Williams, Dr.
Rasmussen’s 1999 opinion must be treated as a misdiagnosis and
therefore that his 2003 opinion, reaching the same result, must
receive the same treatment. We disagree. Simply put, Dr.
Rasmussen’s 2003 diagnosis is a new opinion based on new
evidence. Thus, even were we to treat Dr. Rasmussen’s 1999
opinion as a misdiagnosis for this purpose, his 2003 opinion
would not receive the same treatment.
IV.
The Employer next argues that ALJ2 made two errors in
weighing the doctors’ medical opinions regarding total
disability. We disagree.
A.
In 2003, Dr. Rasmussen obtained PO2 values from blood gas
studies performed when Compton was sitting down (67), when he
was standing on a treadmill (73), and when he was exercising
lightly on the treadmill (67). Based on the drop between the
standing-resting results and the exercise values, Dr. Rasmussen
diagnosed a moderate impairment in oxygen transfer during light
exercise. In discussing the other doctors’ views of these
11
tests, ALJ2 noted that “Dr. Castle did not recognize that Dr.
Rasmussen had two sets of resting results and therefore did not
recognize the drop in values.” J.A. 508. The Employer argues
that that statement was erroneous because DOL regulations
require resting blood gas studies initially to be administered
while a claimant is sitting down. See 20 C.F.R. § 718.105(b)
(2008) (“A blood-gas study shall initially be administered at
rest and in a sitting position. If the results of the blood-gas
test at rest do not satisfy the requirements of Appendix C to
this part, an exercise blood-gas test shall be offered to the
miner unless medically contraindicated.”). We find no error in
the statement.
Doctors are not required, in evaluating a black lung
benefits claimant, to consider only the tests that the DOL
requires. Rather, they may consider other medical tests that
are “medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 718.204(b)(2)(iv) (2008); see Walker,
927 F.2d at 184-85. Here, the ALJ specifically noted that Dr.
Rasmussen initially administered the blood gas study to Compton
while Compton was sitting down, in line with the applicable
regulation. Nothing in the record suggests that Dr. Rasmussen’s
standing PO2 test, even if not specifically sanctioned by the
regulations, was not medically valid.
12
B.
The Employer also argues that ALJ2 used flawed reasoning in
crediting Dr. Rasmussen’s opinion that altitude and age had no
significant effect on Compton’s arterial blood gas study
results. 1 This argument makes reference to the presumptive
medical criteria that can establish a miner’s total disability
when his arterial blood gas tests produce values equal to or
less than the values in Appendix C of 21 C.F.R. Part 718. The
criteria vary depending upon the altitude of the location at
which the study was conducted. There is one set of criteria for
all locations at or below 2,999 feet above sea level, one for
altitudes of 3,000 to 5,999 feet, and one for altitudes of 6,000
feet or greater. The criteria do not vary based on the age of
the claimant.
Here, ALJ2 noted that both Dr. Castle and Dr. Crisalli
opined that the fact that Dr. Rasmussen conducted his tests at a
relatively high altitude caused Dr. Rasmussen’s PO2 results to be
lower and, further, that Dr. Castle believed that Compton’s
advanced age had the same effect. 2 ALJ2 also noted that “Dr.
1
The DOL’s Director of Workers’ Compensation Programs
participated in this appeal in support of the Employer’s
argument on this issue.
2
Dr. Rasmussen reported that the altitude of his testing
site was about 2400 feet. Dr. Castle did not indicate the
specific altitude of his site, but indicated that it was less
(Continued)
13
Rasmussen was aware of those assertions and stated that while
altitude and age have some effect on arterial blood gas study
results, he did not believe the effect to be that much in this
case,” and that even considering those factors, the results were
abnormal. J.A. 507. ALJ2 then concluded that, for the reasons
we have discussed, “under the regulatory criteria, altitude
ha[d] no effect in this case. Nor does age have any effect in
this case, as the regulatory criteria do not include age in its
criteria for arterial blood gas testing.” J.A. 508 (emphasis
added). He further found that Dr. Castle testified that he
determines whether a miner is disabled simply by considering
whether the numerical criteria are met. He also stated that
while Dr. Crisalli recognized that the results of the test he
himself administered were borderline low and while he was aware
of the exertional requirements of Compton’s job, he simply
opined that Compton could perform his job without any further
explanation of why that was the case. In the end, ALJ2 was
persuaded by Dr. Rasmussen’s reliance on the facts that the
than 2400 feet. Dr. Crisalli reported that the altitude of his
site was about 600 feet. Compton was 69, 70, and 71 years old
respectively, when he underwent the tests performed by Drs.
Rasmussen, Castle, and Crisalli.
14
results here were close to the regulatory criteria and that
Compton’s job had particularly difficult physical requirements.
The Employer maintains that ALJ2 fallaciously reasoned that
the fact that differences in the altitudes of the site locations
and in Compton’s age would not affect how close the values came
to satisfying the criteria set out in Appendix C showed that Dr.
Rasmussen was correct that altitude and age in fact did not
substantially impact the test results. We do not read ALJ2’s
opinion as employing that reasoning. Rather, it appears that in
considering the various experts’ opinions regarding whether
Compton was totally disabled, ALJ2 arrived at the eminently
reasonable conclusion that Compton’s test results were close to
satisfying the Appendix C criteria, which apply regardless of
the requirements of a particular miner’s job. ALJ2 concluded
that this fact, combined with the particularly difficult
physical requirements of Compton’s job, supported Dr.
Rasmussen’s opinion that Compton could not perform that job, as
did Dr. Rasmussen’s persuasive analysis and his experience in
determining miners’ disabilities. We find no error in that
reasoning. 3
3
Even had ALJ2 made the error that the Employer alleges, it
would have been harmless because there were several other
reasons that ALJ2 credited Dr. Rasmussen’s and Dr. Cohen’s
opinion that Compton was totally disabled over Dr. Castle’s and
Dr. Crisalli’s contrary opinions. See Sahara Coal Co. v. Office
(Continued)
15
V.
In sum, for the foregoing reasons, we deny the petition for
review.
PETITION DENIED
of Workers’ Comp. Programs, 946 F.2d 554, 558 (7th Cir. 1991)
(holding harmless error doctrine applicable to judicial review
of ALJ action in black lung cases). As we have explained, ALJ2
was impressed with Rasmussen’s experience and research
concerning the use of arterial blood gas testing to determine
total disability in coal miners. ALJ2 also found that the
preponderance of evidence indicates Compton suffers a diffusion
capacity abnormality, and he noted that Dr. Castle was the only
doctor who concluded that Compton’s diffusion capacity study
results were near normal. He further found that Dr. Crisalli
did not explain why the moderately reduced results in diffusion
capacity and borderline low arterial blood gas results that Dr.
Crisalli found would not have prevented Compton from performing
heavy and very heavy labor.
16
