BRB No. 01-0590 BLA
TRENTON BURKHART )
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Claimant-Petitioner )
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v. )
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GREG & OSCAR TRUCKING COMPANY ) DATE ISSUED:04/16/2002
INCORPORATED )
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Employer/Carrier- )
Respondents )
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and )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order --Denying Benefits of Donald W. Mosser,
Administrative Law Judge, United States Department of Labor.
John Hunt Morgan, Hyden, Kentucky, for claimant.
Helen H. Cox (Eugene Scalia, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington, D.C., for the Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order -- Denying Benefits (00-BLA-638) of
Administrative Law Judge Donald W. Mosser with respect to a claim filed pursuant
to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of
1969, as amended, 30 U.S.C. §901 et seq. (the Act). The administrative
law judge found that claimant failed to establish two necessary elements of his
case: the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a), and
a totally disabling respiratory or pulmonary impairment within the meaning of 20
C.F.R. §718.204(b).[1] Accordingly, benefits
were denied. On appeal, claimant challenges both findings. The Director, Office
of Workers' Compensation Programs (the Director), argues in response that the
administrative law judge's decision be affirmed on the ground that claimant did not
prove that he is totally disabled.[2] Employer
has not responded to this appeal.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law. 33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204. Failure to establish any one of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee
v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en banc); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc).
With regard to the issue of total disability, the administrative law judge
found that neither the pulmonary function test nor the arterial blood gas study
yielded qualifying results, and there was no evidence that claimant was suffering
from cor pulmonale with right-sided congestive heart failure. Therefore the
administrative law judge properly found that claimant failed to establish total
disability based on the first three measures contained in Section 718.204(b)(2).[3] 20 C.F.R. §718.204(b)(2)(i), (ii), (iii);
Decision and Order at 9. Turning to Section 718.204(b)(2)(iv), the administrative
law judge found that the only medical opinion in the record concluded that claimant
had a mild impairment and was able to perform his last coal mine employment from
a respiratory standpoint. Decision and Order at 9. Therefore, the administrative
law judge found that claimant failed to prove that he was totally disabled.
Claimant raises several arguments in challenging the administrative law
judge's finding that claimant did not establish total disability pursuant to
Section 718.204(b)(2)(iv). Claimant contends that the administrative law judge did
not properly identify the exertional requirements of claimant's employment as a
coal truck driver and determine whether claimant was disabled in light of those
requirements. However, the one medical report in the record is that of Dr. Baker,
who noted claimant's years of work as a coal truck driver. Based on claimant's
non-qualifying pulmonary function study, Dr. Baker found that claimant suffered
from a mild respiratory impairment.[4] The
physician also concluded that claimant was able to perform his last coal mine work
from a respiratory standpoint. Director's Exhibits 13, 14.
Claimant failed to introduce any significant evidence regarding the exertional
requirements of his work as a coal truck driver. Other than Dr. Baker's report,
the only evidence in the record with regard to that issue is claimant's testimony
that when he was hauling coal he was required to get out of the truck and "tarp"
the load. Transcript at 12. That single statement clearly is not sufficient to
establish that the exertional requirements of his coal mine employment precluded
performance of that work from a respiratory standpoint. Scott v. Mason Coal
Co., 14 BLR 1-37 (1990) (en banc recon.).
Claimant further argues that he is totally disabled because his impairment
prevents him from working in a dusty environment, and driving a coal truck is a
very dusty job. This argument runs counter to case law holding that the fact that
a claimant is advised not to work in a dusty environment is not sufficient to
establish total disability. Taylor v. Evans and Gambrel Co., Inc., 12 BLR
1-83 (1988); Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988).
Additionally, claimant asserts that the Board, in Bentley v. Director,
OWCP, 7 BLR 1-612 (1984), held that the administrative law judge was required
to take into consideration claimant's age, education, and work experience in
determining whether he was totally disabled. However, Bentley stands for
a different proposition: that age, education, and work experience may be relevant
to the question whether a miner is capable of performing employment comparable
to that which he held as a miner. Because the administrative law judge found
that claimant was capable of performing his last coal mine employment from a
respiratory standpoint, he correctly did not reach the issue whether claimant was
capable of performing comparable work. See generally Taylor v. Evans and Gambrel
Co., Inc., 12 BLR 1-83 (1988).
Finally, claimant argues that because pneumoconiosis is a progressive disease,
it can be concluded that claimant's pneumoconiosis has worsened over time,
adversely affecting his ability to perform his usual or comparable work.
Claimant's Brief at 6-7. Speculation of this sort does not meet the regulatory
requirement that claimant prove that he is totally disabled. See 20
C.F.R. §725.103 (2001). Gee, supra.
Because claimant failed to establish total disability pursuant to 20 C.F.R.
§718.204 (b)(i)-(iv), a requisite element of entitlement under Part 718, the
administrative law judge properly denied benefits. See 20 C.F.R.
§718.204(b); Trent, supra; Gee, supra;
Perry, supra. In view of our disposition of the case on the issue
of total disability, we decline to address claimant's and the Director's arguments
regarding the administrative law judge's finding that claimant had not established
the existence of pneumoconiosis. See 20 C.F.R. §718.202;
Consolidation Coal Co. v. Worrell, 27 F.3d 227, 18 BLR 2-290 (6th Cir.
1994).
Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations
implementing the Act. These regulations became effective on January 19, 2001, and
are found at 20 C.F.R. Parts 718, 725, and 726 (2001). All citations to the
regulations, unless otherwise noted, refer to the amended regulations.
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2) Alternatively, the Director argues that if the issue of the
existence of pneumoconiosis is reached, the administrative law judge erred in his
treatment of the only physician's report in the record.
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3) No party challenges these findings; therefore they are
affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4) Dr. Baker indicated that claimant's impairment was "mild with
decreased FEV1 and chronic bronchitis." Director's Exhibit 14 at 4.
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NOTE: This is an UNPUBLISHED BLA Document.
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