U.S. DEPARTMENT OF LABOR Office of Workers' Compensation In the Matter of the Claim for Benefits Under the Black Lung Benefits Act Division of Coal Mine Workers? Compensation Central Mail Room PO Box 8307 London, KY 40742-8307 C.O.A.L. Mine Portal: Phone: (814) 619-7777 or 1-800?347-3754 FAX: (814) 619?7790 ORDER TO SHOW CAUSE WHY RE UEST FOR MODIFICATION BetheIJ Brock 0? .__._Ei_rsst_0ri Of?ce PfWertee' Cem?aajion Programs SHOULD NOT BE GRANTED Claimant Miner: Bethel Brock CLAIM NO.: JO LM Case ID: C031 company Claim Date? 07/03/2003 Responsible Operator and Pursuant to the authority contained at 20 CFR Section 725.310, the District Director, on her own initiative, has reconsidered the denial of benefits issued on June 1, 2017 and determined that modification is in order. The District Director hereby proposes the following findings of fact and enters the following Order to Show Cause. PROPOSED FINDINGS OF FACT 1. The claim was filed on July 3, 2003 and was last denied by the District Director on June 1, 2017. 2. That following review ofthe claim, the District Director finds that the previous denial issued June 1, 2017 of the claimant?s August 25, 2016 modification request was in error. 3. The following evidence submitted by the claimant is considered in this modification proceeding: 3. Report ofa 10/09/2015 CT scan from Dr. Danielle Seaman who read the scan as being consistent with complicated coal workers? pneumoconiosis. In her report, she noted muitiple large opacities with one measuring in excess of 1 cm. Report ofa 04/11/2016 CT scan from Dr. A DePonte who read the scan as being consistent with complicated pneumoconiosis and progressive massive fibrosis. She noted coalescent nodules measuring up to 12 mm consistent with large opacities of coal workers? pneumoconiosis. This scan and interpretation were performed in the course oftreating the miner. Report ofa 4/11/2016 CT scan from Dr. Danielle Seaman who read the scan as being consistent with complicated coal workers? pneumoconiosis. She again noted multiple large opacities with one measuring in excess of 1 cm. Interpretation of a 07/19/2016 chest X-ray from Randolph Forehand who read the film as consistent with both simple and complicated pneumoconiosis (simple 2/2 and complicated size A with progressive massive fibrosis. He noted that both the perfusion and size of an upper lobe density had progressed since the miner?s last chest X?ray, consistent with the progressive nature of coal workers? pneumoconiosis. Claimant: BethelJ Brock CLAIM NO: JO LM Case ID: CERTIFICATION I hereby certify that on August 17,2017, the Proposed Order was filed in the office of the District Director and a copy mailed to the parties and their representatives at the addresses listed below. The Proposed Order shall become final within 30 days from the date filed in the office of the District Director in accordance with Section 20 CFR 725.419. .rColleen S. Smalley' I {1 District Director CERTIFIED MAIL BethelJ Brock Jeremy O?Quinn, Esquire 6223 Bearcreek Meadows Road The O'Quinn Law Office, Wise, VA 24293 532 West Main St. PO Box 2327 Westmoreland Coal Company Wise, VA 22429?3 Casualty Claim PO BOX 3389 Charleston, WV 25333-3389 Paul Frampton, Esquire Bowles Rice lVIcDavid Graff Love LLP PO Box 1386 Charleston, WV 25325?1386 MEDICAL EVIDENCE (The first letter of the letter codes with the test dates represents the submitting party for the evidence: stands for Director (the Department of Labor) for designated responsible operator the employer and for claimant The second letter of each code indicates ifthe evidence Is for Evidence of record, for New evidence developed for this claim or for Rebuttal evidence.) CLAIM NO.: LM X-ray Evidence X-RAY Reread X- RAY Reader Film X-RAY Film Date Date Name Of R?idjr _QIua _if_icatiIons __t?nt?erpretation .. 08/09/2000 MN. Patel . Boa?rd- ?certifie_cl; BI readerI .. 2II -. 1/1* m9/2S00 09/26/2000 P.J.'6arrett Boardcerti?ed; reader 7078/21/2003? ?08/21/20030- BoaIIrId-certii?edLB-reader 2 08/21/2003 . 10/21/2003 DN J. Barrett _Board?certified;B?reader .. Qual??eading 09/11ng -. . BoarId-cIerEifiidiB?reader 1 MODIFICATION 10/200?5 08/01/2005 08/02/2005 K.A. DePonte Board?certified, B-reader 2 MODIFICATION 01/2006 01/10/2006 02/02/2006 J.R. Castle B-reader 2 1/1 SUBMITTED BEFORE ALI 2228/2004 -1211- WE . Negative 08/21/2003 11/25/2003 IJ.F. Wiot ?certified' reader 1 Negati_ve__ 08/21/2003 12/05/2003 H. B. Spitz Board? ?certifiediB:reiader . 1 I Negative 09/15/2003 11/09/2004 F. _Wiot certi?ziti- Negative Hippensteel_ 1 1/0 131023903 . -- . -_Nesstiie- I 05/25/200iR__ Mye[ I II . . .. _N_eg_a_tiv_e 12/09/2003 05/29/2004 H. B. Spitz Board?certified; B?reader 1 Negative 012/087-200sz11/12/2004c 15A barium?re Board?0e'rtified; B-reacler 07/02/2004 I McSharry .. Bead-certified Internal Few dun/{ea lesions Medicine, Pulmonary Medicine, suggesting the Critical Care Medicine presence of pneumoconiosis. No evidence of PMF 02/02/20011 P.S. Wheeler A . BgaI:d- IIc_e_r_t_if_ie_d; 8? reader 1 Negative 07/02/2004 W.S. Scott ?8?0208- certified,- B_VAeggf?m 02/02/2004" 07/16/2004 Board-certified; til/gage: 2 Negative??- 07/02/2004 08/28/2004 J.F. Wiot __Board?certified1B?Ireader 0102/2009 H. Spitz_ Negative I_0_7/02/20_0_z_1__ . K. A. DePonte Board-certified; B?reader 1 06/30/2005 07/01/2005 ?Watkins/Pulaski Comm Hosp. No acute findings In A - Elle?- - 08/01/2005 Bgrd?certji??iB?reader 1 1/1 01/10/2006 02/13/2006 1- Wiot Board:ce_rtified; B-reaIcler 2 1/1 _01/10/2006 _08_/0_4/20_0_6c DePonte Board- cer_tifie_d;l3? read-6AA": . 1_ 01/13/2006? 12/29/2008 J. F. Wio__t r_eader 1 - 1/2 04/27/3006 --. Board certifiedBoard certIerd,I 313593111 I I 2 171'? 02/26/2008 02/27/2008 8. Antoun/The Clinic 7 Moderate Adi?use? I interstitialfibrosis likely sequel of coal workers? . . 02/26/2008 12/29/2008 1F. Wiot I I I Board?certified; B?reader 1 11/14/2008 12/1972008 DePonte .. _s??i?rYi?IALB-regger _1 -. 11/14/2008". 02/25/2009 ?11481?! 1 .. 1/1 01/13/2006 01/13/2006 Forehand B?reader 2 MODIFIQMPEL 03/2014} . -- . Coalworkers? . REPORTONLY pneumoconiosis. mild COPD MODIFICATION 03/2010 12/07/2009 12/12/2009 K.A.DePonte_ guard?certified; 01.3303 727 _4 ?12/07/2099" 12/0W2'0t3m J.F.Wiot 2 1/1 MODIFICATION 10/2011 NO EVIDENCE SUBMITTED 12/06/2011? DePonte Board?certified; B-Reader Interstitial lung disease consistent with coal workers' engumenissia MODIFICATION 10/2013 sown?rep 12/11/2012 08/26/2013 A DePonte Board?certi?ed; B-reader CWP mild 1 gm 9119/2016 -Esadi .r was films from miner?s 15t file. Pulmonary Function Study Evidence DISABILITY Bate Physician Higig?t FEV1 MW STANDARDS Valid? MW FVC O-N D.L. Rasmussen 63/71 3.46 157 4.8a 719/o 2.10 84 2.69 exceeds MODIFICATION 10/2005 01/10/2006 J.R.Castle 65/72 3.12 91.0 4.33 72% 2.13 085 2.73 exceeds l?u . MODIFICATION3915 12? ii use: eel .e?e?d Arterial Blood-gas Evidence Restin P02 Disabilit Date Exercisge/Z? PCOZ P02 Standardsy Altitude Valid? D.L. Rasmussen Resting 38.0 70.0 62 0?2999 exceeds Exercise 38.0 78.0 62 0?2999 exceeds MODIFICATION 2005 . _?sting_ 93.3 _iceecis Physical Examination] Other Evidence Exam Examining T?IFindings Date Physician/Qualifications 08/21/2003 D.L. Rasmussen MD Board- certified in Internal Medicine 10/2004 Physical Exam: Diagnosis: CWP complicated, category A, 35 years coal mine employment and xvray evidence of pneumoconiosis. Question cardiac disease Abnormal exercise EKG, Etiology: CWP -complicated, category A, coal mine dust exposure. Question cardiac disease Non occupational factor. Impairment: The patient exhibits poor exercise tolerance as reflected by the increased oxygen uptake. The patient has no signi?cant loss of lung function. He seal 08/16/2004 Harold B. Spitz, MD Professor of Radiology B?reader 09/16/2005 Report of Interpretation of CT Scan dated 08/162004 CT impression: 1. The nodular densities in the upper and middle portions of the lungs are consistent with simple coal workers? pneumoconiosis. 2. __Th_e_two somewhat larg?ergduleson the_right could represent maligna_ncy MODIFICATION 200_6_ 01/10/2006 RPN James R. Castle MD Physical Exam: After rev?iewing the data obta?ined at the time ?of my ev?aluation I arrived at the following assessment: Radiographic changes consistent with simple coal workers? pneumoconiosis. No evidence of respiratory impairmentfrom any cause. Significant hypertension Resting tachycardia of uncertain etiology History of prostate cancer Both the hypertension and resting tachycardia need further evaluation and claimant was informed of this. Physician also reviewed additional medical data that was submitted with the claimant. The medical evidence is listed in Dr. Castle?s report of 02/06/2006. After a very thorough and extensive review of all the additional medical data submitted as well as a review of the data obtained at the time of my evaluation, have arrived at the following opinions and conclusions: It is my opinion with a reasonable degree of medical certainty that Mr. Brock most likely does have radiographic changes consistent with simple coal workers;? pneumoconiosis. He does not have evidence of complicated coal workers? pneumoconiosis. Impairment: Brock does not have any respiratory disability from any cause including coal workers? pneumoconiosis. From a purely pulmonary point of view, he does retain the respiratory capacity to perform his previous coal mine employment duties. It is entirely possible that Mr. Brock is disabled as a result of cardiac disease and/9or hypertension. Both of these conditions of the general public at large and are unrelated to the inhalation of coal mine dus? coal workers pneumoe?oniosis 04/13/2012 C-E Internal Medicine; Subspecialty in Pulmonary Disease I 09/04/2004 - I Robinette It is my impression that Mr. Brock has evidence of an occupational pneumoconiosis which occurred as a direct consequence of his prior coal mining employment He clearly has evidence of axillary coalescence and pneumoconic nodules and an opacity in the rig_ht_ upper lobe which?mayi be consistent__w_ith complicated pneumoconiosis I 07/29/04 Robinette Coal workers? pneumoconiosis with underlying progressive massive fibrosis MODIFICATION 2012 12/05/11? Dr. Habre Board-certified in Treatment Notes: MODIFICATION 2014 08/14/2013 Appalachia Family Health Treatment Records: Follow-up treatment for complicated coal workers? pneumoconiosis. ALJ Evidence 08/ 16/ 2004 J.F. Wiot Board?certified; reader 08/16/2004 CT: There is evidence of early minimal simple CWP. 08/16/2004 H. B: Spitz Board- certified; B- reader 08/16/2004 CT. The n?odular d?ensities In the upper and middle? portions of the lungs are consistent with simple MODIFICATION 2015 08/14/2015 08/04/2014 EE ?ME/"ibis C-N J. Randolph Forehand Board? certified Pediatrics; Subspecialty Allergy Immunology Vjay RQma'kEFh?n? Wellmhont?Health System A DePonte Board Certified/ reader 00/04/2014 CT w/con: Extensive reticular nod?diarfibrc?isgnd calcified 08/14/2015 Treatment Report: 1. History of significant occupational coal and silica dust exposure underground coai mine and preparation plant. 2. Unequivocal radiographic evidence of reticulonodular fibrosis in both lungs with a dominant nodule in the right upper lobe measuring 10 mm, consistent with complicated coal workers? pneumoconiosis with progressive massive fibrosis. hilar/mediastinal overall suggestive of pneumoconiosis. Dominant nodule in the right upper lobe measures 10mm. No clearly suspicious lesions are seen at this time. Given the patient?s history of mining smoking, and prostate/head and neck cancer continued surveillance is suggested with a repeat chest CT in six months to confirm stability 70/09/2015 CT w/o cont: Nodular interstitial lung disease In a pattern typical for coal workers? pneumoconiosis. Several opacities equal to and exceeding 1 cm in diameter consistent with complicated coal workers? pneumoconiosis. Malignancy in any one of these nodules cannot be entirely excluded. reader 70 B??cem?ea,? read?Isms 02%. again Small nodules concentrated in upper and mid lungs and some larger nodules measuring up to about 1 cm Coal Workers Pneumoconiosis Mild possible granulomatous infection histoplasmosis vs TB, atherosclerosis and possible aortic stenosis MODIFICATION 06/2017 C-E Forehand Board-certified Pediatrics; Subspecialty Allergy Immunology Certified; Radiologist Danielle Seaman 1 Board? Treatment Record: Complicated coal workers? pneumoconiosis with progressive massive fibrosis. Lab data: PA view of chest reveals extensive retricunodular lung disease with a dominate nodule in right upper lobe measuring 14. 13 mm impression Complicated pneumoconiosis with progressive Massive_ Fibro_sis CT 10/09/2015: Consistent with complicated ?co?a worker? pn?eumoconiosis. CT 04/11/2016: Consistent with complicated coal workers? pneumoconiosis reader 04/11/2016 C-E A DePonte Board- certified; 04/11/2016: Coal work-ers? pneumoconiosis with progressive massive fibrosis. Radiologist reader MODIFICATION REVIEW DATED 08/17/2017 04/11/2016 WELLMONT CT SCAN- FOR RMO Wea?bifn? Danielle Seaman Board Certified Radiology Reader from Sep 1, 2016 to Aug 31, 2020 Reader from Sep 1, 2012 to _Aug 31, 201's .7 WELLMONT Danielle Seaman Board Certified Radiology Reader from Sep 1, 2016 to Aug 31, 2020 8 Reader from Sep 1, 2012 to J?g 31 2016 7 Novaris Enterprises VA-CVH Multiple large opacities in right upper lobe measuring 1cm on image 22 and 1.3cm on upperlobe measures 105nm. Clea?rly suspicious lesions are seen at th_is time. CT FINDINGS CONSISTENT WITH COMPLICATED CWP Multiple large opacities in right upper lobe measuring 1cm and 1.3cm cr FINDINGS CONSISTENT WITH COMPLICATED CWP image 44, and 1cm in right mid lobe on image 57 CT Extensive reticular nod?ularf?ibrosis and calcif?ied hilar m?ediastinal overall suggestion of pneumoconiosis Dominate nodule in right Miner: Bethell Brock Claim No.: JO LM Case ID: BDT5W-2003184 Page: 2 4. The following evidence submitted by the responsible operator is considered in this modification proceeding: a. Report of a 10/09/2015 CT scan by Dr. J.D. Godwin who read the scan as showing coal workers? pneumoconiosis. He noted small nodules concentrated in the upper and mid lungs and some larger nodules measuring up to about 1 cm. 5. The x?ray interpretation by Dr. Forehand was positive for both simple and complicated coal workers' pneumoconiosis. 6. The CT scan interpretations by Dr. Seaman and Dr. DePonte provide evidence consistent with progressive massive fibrosis and/or complicated coal workers? pneumoconiosis. Although Dr. Godwin did not diagnose complicated pneumoconiosis in his CT scan interpretation, he does not address the cause or significance of the larger nodules he identified. Therefore, I am giving this report less weight. 7. The irrebuttable presumption of total disability or death due to pneumoconiosis is found at section 20 CFR 718.304. Based on the foregoing evidence, I find the x?ray evidence supports the presence of complicated pneumoconiosis as defined in section 718.304. Such finding is also overwhelmingly supported by the CT evidence submitted in support of modification. While CT evidence is not specifically mentioned in the regulations, the regulations do allow for consideration of any acceptable medical means of diagnosis. 20 CFR 718.107. When weighing CT interpretations, they are not considered as x?rays, but must be evaluated together with any evidence or testimony which bears on the reliability ofthe CT. Both Drs. Seaman and Godwin testify to the utility of diagnosing pneumoconiosis by CT. Therefore, I find that the CT reports that have been submitted into evidence meet the criteria envisioned by 20 CFR I therefore find that the claimant has invoked the irrebuttable presumption of entitlement and is entitled to benefits. Based upon the foregoing findings, the District Director hereby enters the following ORDER: 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 of the previous denial of benefits to an Award. 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 modification. Signed in the office of the District Director on August 17, 2017 f? i i . 1 i Colleen S. Smalley District Director 1' L2 ti 27>- i i. 2