BRB No. 01-0751 BLA
JOSEPH E. ANGELILLI )
)
Claimant-Respondent )
)
v. )
)
CONSOLIDATION COAL COMPANY ) DATE ISSUED:04/17/2002
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Daniel L. Leland,
Administrative Law Judge, United States Department of Labor.
William S. Mattingly (Jackson & Kelly PLLC), Morgantown, West Virginia,
for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand (98-BLA-110) of
Administrative Law Judge Daniel L. Leland awarding benefits on 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).[1] This case is on appeal to the Board for the
third time. The lengthy history of this case is set forth in the Board's prior
Decision and Order, Angelilli v. Consolidation Coal Co., BRB No. 00-0484 BLA
(Jan. 12, 2001). The last time this case was before the Board it affirmed the
administrative law judge's finding that claimant established the existence of
pneumoconiosis at 20 C.F.R. §718.202(a)(4)(2000) and disability causation at
20 C.F.R. §718.204(b)(2000) by medical opinion evidence,[2] but nonetheless vacated the administrative law
judge's finding that pneumoconiosis was established in light of the holding of the
United States Court of Appeals for the Fourth Circuit in Island Creek Coal Co.
v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000), within whose
jurisdiction this case arises, which requires the administrative law judge to weigh
all types of evidence delineated at 20 C.F.R. §718.202(a)(1)-(4) together
before determining whether claimant has established the existence of
pneumoconiosis. The Board, therefore, remanded the case for the administrative law
judge to reconsider the medical opinion evidence along with the x-ray evidence
before determining whether the existence of pneumoconiosis was established.
Angelilli, supra.
On remand, the administrative law judge found that while the preponderance of
the x-ray evidence read by better qualified physicians was negative, because
negative x-ray readings do not preclude a finding of "legal pneumoconiosis,"
i.e., a chronic lung disease arising out of coal mine employment, the
opinion of Dr. Devabhaktuni, that claimant's chronic obstructive pulmonary disease
was due, in part, to coal mine dust exposure, was sufficient to establish the
existence of pneumoconiosis. The administrative law judge credited the opinion
because it was based on the most thorough examination of claimant and was well
explained. In contrast, he found the opinions of Drs. Renn and Fino, that
claimant's respiratory conditions were not due to coal mine employment, not fully
explained. Accordingly, the administrative law judge found that claimant
established the existence of pneumoconiosis as defined by the Act and awarded
benefits.
On appeal, employer contends that the administrative law judge erred in
finding the existence of pneumoconiosis and disability causation established based
on the medical opinion evidence before him. Neither claimant nor the Director,
Office of Workers' Compensation Programs (the Director), is participating in this
appeal.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated 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 prove 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); Perry
v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
In finding the existence of pneumoconiosis established, the administrative law
judge noted that the Board had affirmed his previous finding that the medical
opinion evidence established the existence of pneumoconiosis, and had remanded the
case only for reconsideration of that evidence together with the x-ray evidence in
light of Compton, supra. Pursuant to Compton, the
administrative law judge found that while the preponderance of the x-ray evidence
was negative for the existence of pneumoconiosis, the medical opinion evidence,
nonetheless, established the existence of pneumoconiosis as defined by the Act.
Decision and Order at 4. Inasmuch as employer has only challenged the
administrative law judge's analysis of the medical opinion evidence, which was
previously affirmed by the Board, and has not challenged the administrative law
judge's weighing of the medical opinion evidence against the x-ray evidence, we
affirm the administrative law judge's finding that the existence of pneumoconiosis
was established. See 20 C.F.R. §§718.201, 718.202(a)(1)-(4);
Compton, supra; Gillen v. Peabody Coal Co., 16 BLR 1-22
(1991); Brinkley v. Peabody Coal Co., 14 BLR 1-147 (1990); Sarf v.
Director, OWCP, 10 BLR 1-119 (1987); Bridges v. Director, OWCP, 6 BLR
1-988 (1984); Fish v. Director, OWCP, 6 BLR 1-107 (1983). Likewise,
inasmuch as the Board affirmed the administrative law judge's previous finding that
the medical opinion evidence established disability causation, we will not consider
employer's argument on that issue again. Gillen, supra;
Brinkley, supra; Bridges, supra; see 20 C.F.R.
§718.204(c).
Accordingly, the Decision and Order on Remand of the administrative law judge
awarding 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 Federal Coal Mine
Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and are found at 65
Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726). All citations to the regulations,
unless otherwise noted, refer to the amended regulations.
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2) The parties have stipulated to the existence of a totally disabling respiratory impairment.
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NOTE: This is an UNPUBLISHED BLA Document.
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