U.S. DEPARTMENT OF LABOR Office of Workers' Compensation Division of Coal Mine Workers? Compensation Central Mail Room PO Box 8307 London, KY 40742-8307 C.O.A.L. Mine Portal: Phone: (914) 619-7777 or 1-800-347-3754 FAX: (314) 619-7790 Vito/V in the Matter of the Claim for Bene?ts Under the Black Lung Bene?ts Act ORDER TO SHOW CAUSE WHY REQUEST FOR MODIFICATION BethelJ Brock SHOULD NOT BE GRANTED Claimant Miner: Bethel Brock CLAIM NO.: 10 LM Case ID: Claim Date: 07/03/2003 V. Westmoreland Coal Company Responsible Operator and Director, Of?ce ofWorkers' Compensation Programs Pursuant to the authority contained in 20 CFR 725.310 and 20 CFR 725.418, the District Director proposes to order that the request for modification filed in the claim be denied. FINDINGS OF FACT 1. This claim was ?led on July 3, 2003, and was denied by District Director on May 3, 2016. 2. A timely request for modi?cation was filed by the claimant through an attorney on August 25, 2016. 3. The following new evidence was submitted by the claimant in support of his August 25, 2016 request for Modification: The claimant submitted a simple and complicated 2/2 A reading of x-ray July 19,2016 by Dr. J. Forehand, a B-reader and a progress note from the July 19, 2016 examination. Also submitted were Readings of CT scans dated October 9,2015 and Aprii11, 2016. Dr. Daniel! M. Seaman, a board- certi?ed, B-reader, read the October 9, 2015 and April 11, 2016 C'i's: ?ndings were consistent with complicated with coal workers' pneumoconiosis. Dr. Kathleen A DePonte, a board?certi?ed, B-reader, read the April 11, 2016 CT: coai worker's pneumoconiosis with progressive massive ?brosis. Although the regulations provide no guidance for the evaluation of CT scans, the regulations do allow consideration of any acceptable medical means of diagnosis. When weighing the evidence in each category, CT scans are not considered to be x-rays, but must be evaluated together with any evidence testimony which bears on the reliability and utility of CT scans. Federal Regulations recognize that coal workers? pneumoconiosls is a progressive disease. The most Case No: BDT5W-2003184 Rec'd Date: 03115l2017 recent x-ray evidence of record, the July 19, 2016 x-ray, was read simple and complicated by Dr. J. Randolph Forehand. Dr. Forehand's progress record ofiuly 19, 2016 and the readings of the April 11, 2016 and October 9, 2015 CT scans further support this ?nding. 20 CFR - established by x-ray The miner's pneumoconiosis was caused by his coal mine employment based upon the presumption In the regulations, 20 CFR 718.203lb) which states: if a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines, there shall be a rebuttable presumption that the pneumoconiosis arose out of such employment. The miner has established at least ten years of coal mine employment. Reasoned medical opinion does not rule out a connection between the disease and coal mine employment. The presumption has not been rebutted. 20 CFR 718.203(b) - established by presumption 20 CFR 718.304 provides that if a miner is suffering from complicated pneumoconiosis, there is an irrebuttable presumption that he is totally disabled due to pneumoconiosis. Complicated pneumoconiosis is established by X-rays classi?ed as Category autopsy or biopsy which yields evidence of massive lesions in the lung. Since the evidence in this claim con?rms the presence of complicated pneumoconiosis, the miner is presumed to be totally disabled due to pneumoconiosis. 20 CFR 718.304(a] - established by complicated CWP This claim has been reviewed to determine if the changes in the Black Lung Bene?ts Act mandated by the Patient Protection and Affordable Care Act of 2010 (PPACA), Public Law 111-148 ?1556(a), apply. Section 411(c)(4) of the Act provides presumptions of total disability due to pneumoconiosis or death due to pneumoconiosis under certain circumstances. The presumptions are applicable to claims that were filed before January 1,1982 or after January 1, 2005, and were pending on or after March 23, 2010. The presumption is available to miners who worked for a cumulative period of ?fteen or more years in underground mining, or comparable surface mining, and the evidence establishes the existence of a totally disabling respiratory or pulmonary impairment. if a survivor establishes that the miner worked for ?fteen or more years in coal mine employment and that the miner suffered from a totally disabling chronic respiratory or pulmonary impairment prior to death, it is presumed that the miner?s death was due to pneumoconiosis. The determination of the existence of a totally disabling respiratory or pulmonary impairment, for purpose of applying this presumption, shall be made in accordance with section 20 CFR 718.204. For rebuttal in- a miner?s claim, the party opposing entitlement must establish either that the miner does not or did not have pneumoconiosis or that the miner's impairment did not arise out ofor in connection with coal mine employment. In a survivor's case, the party opposing entitlement must provide evidence sufficient to rebut the presumption of death due to pneumoconiosis. As discussed in the analysis of the admissible medical evidence, the x-ray evidence establishes that the miner has complicated coal worker?s pneumoconiosis. Consequently, the 15 year presumption may not beinvoked. After a review of the evidence, it has been determined that there has been a change in condition. The request for modification is approved. lse No: Rec'd Date: 03/15/2017 Miner: BethelJ Brock Claim No.: JO LM Case ID: Page: 2 ORDER 1. All parties to this claim are ordered to show cause, within 30 days of the date of this order, why the proposed Finding(s) of Fact set forth above should not result In modification ofthe previous denial of bene?ts. 2. Any party that objects to this Order must also indicate whether additional evidence will be presented in support of its objection. Failure to respond within the allotted time period will be considered an acceptance of the proposed modi?cation. MAR 1 52017 Signed in the of?ce of the District Director on Wit Colleen S. Smalley District Dlrector Case No: Rec'd Date: 03/1512; PROOF OF SERVICE Claimant: Bethel Brock CLAIM No.1 JO LM Case ID: CERTIFICATION I hereby certify that on MAR 1 5 2017 the Proposed Decision and Order was filed in the of?ce of the District Director and a copy mailed to the parties and their representatives at the addresses listed below. The Proposed Decision and Order shall become ?nal within 30 days from the date ?led in the of?ce of the District Director in accordance with Section 20 CFR 725.419. Debbie J. {geyandt 1% Claims Examiner CERTIFIED MAIL Jeremy 8 O'Quinn, Esquire Bethel Brock 532 West Main St. 6223 Bearcreek Meadows Road PO Box 2327 Wise, VA 24293 Wise, VA 22429-3 Westmoreiand Coal Company Casualty Claim PO Box 3389 Charleston, wv 25333-3339 Paul Frampton, Esquire PO Box 1386 Charleston, WV 25325-1386 Case No: Rec'd Date: 03/15/2017 Director (the Department of Labor). EVIDENCE (The ?rst letter of the letter codes with the test dates represents the submitting party for the evidence: stands for this claim or for Rebuttal evidence.) CLAIM N0.: LM X-ray Evidence for designated responsible operator. the employer. and for claimant. The second letter of each code indicates if the evidence is for Evidence of record, for New evidence developed for X-RAY Reread X-RAY Reader Film X-RAY Film Date Date Name Of Reader Qualifications Quality Interpretation 0711912016 0711912016 C-N Forehand B-reader 1 212A Pulmonary Function Studv (PFS) Evidence DISABILITY Date Physician ?@1311 FEV1 MW FVC ?g STANDARDS Valid? 3 .9 FEV1 MW FVC i Arterialglood-gas (ABGLEvldence Date Physician PCOZ P02 13:33:ng Altitude Valid? Physical Examination/ Other Evidence Exam Examining Date Fmdm? 07/19/2016 C-N Forehand Treatment Record: Complicated coal workers? with progressive massive ?brosis. 04/11/2016 CT Chest WO Contrast: Coal workers' with progressive massive fibrosis. 11/14/16 C-E CT 10109115 read by Dr. Danielle Seaman - consistent with complicated coal workers? CT 04111118 read by Dr. Danielle Seaman consistent with complicated coal worker CT 04111116 read by Dr. K. A. DePonte coal workers with progressive massive fibrosis. Case No: Rec'd Date: 03115120