BRB No. 01-0800 BLA
DALLAS D. CHAFINS[1] )
)
Claimant-Petitioner )
)
v. )
)
CHRISCO SERVICE, INCORPORATED ) DATE ISSUED:04/05/2002
)
and )
)
FRONTIER INSURANCE COMPANY )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Joseph E. Kane, Administrative Law Judge, United States Department
of Labor.
William Lawrence Roberts, Pikeville, Kentucky, for claimant.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (00-BLA-0611) of Administrative Law Judge Joseph E. Kane denying
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).[2] The instant
case involves a duplicate claim filed on June 8, 1999.[3] After crediting claimant
with forty-seven years of coal mine employment, the administrative law judge found the evidence insufficient to establish
a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).[4] Accordingly, the administrative law judge denied benefits. On appeal, claimant argues that the instant
case falls within the jurisdiction of the United States Court of Appeals for the Sixth Circuit, as claimant's last coal mine
employment was in Kentucky. Claimant also contends that the administrative law judge erred in finding the evidence
insufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Neither employer
nor the Director, Office of Workers' Compensation Programs, has filed a response brief.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence,
are rational, and are in accordance with applicable law. 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).
We first address the issue of the applicable law. In the instant case, the administrative law judge noted that although
claimant last worked as a miner in Kentucky, a state falling within the jurisdiction of the United States Court of Appeals
for the Sixth Circuit, he also worked in Virginia, a state falling within the jurisdiction of the United States Court of Appeals
for the Fourth Circuit. Decision and Order at 8. Because claimant elected review of his previous claim in the Fourth
Circuit, the administrative law judge applied the law of that circuit to the instant claim. Id.
The Board has held that, in order to establish consistency in determining the applicable law in cases before the
Board, it will apply the law of the United States Court of Appeals for the circuit in which the miner most recently performed
coal mine employment. Inasmuch as claimant's most recent coal mine employment took place
in Kentucky, we will apply the law of the United States Court of Appeals for the
Sixth Circuit in the instant case. Shupe v. Director, OWCP, 12 BLR 1-200
(1989)(en banc).
Section 725.309 (2000) provides that a duplicate claim is subject to automatic denial on the basis of the prior denial,
unless there is a determination of a material change in conditions since the denial of the prior claim. 20 C.F.R.
§725.309(d) (2000). The United States Court of Appeals for the Sixth Circuit has held that in assessing whether a
material change in conditions has been established, an administrative law judge must consider all of the new evidence,
favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement
previously adjudicated against him. Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994).
In the adjudication of claimant's 1980 claim, Administrative Law Judge T. Eugene Burts found that the x-ray
evidence was sufficient to establish the existence of pneumoconiosis, thereby establishing invocation of the interim
presumption pursuant to 20 C.F.R. §727.203(a)(1). Director's Exhibit 25. Having established invocation of the
interim presumption, claimant was provided with a presumption that he was totally disabled due to pneumoconiosis.
Id. Judge Burts, therefore, did not affirmatively find that the evidence of record was sufficient to establish the
existence of a totally disabling respiratory or pulmonary impairment. Consequently, in order to establish a material change
in conditions pursuant to 20 C.F.R. §725.309 (2000), the newly submitted evidence must support a finding of total
disability. See 20 C.F.R. §718.204(b).[5]
In his consideration of whether the newly submitted evidence was sufficient to establish total disability,
the administrative law judge properly noted that all of the newly submitted pulmonary function and arterial blood
gas studies are non-qualifying.[6] Decision and Order at 9; Director's Exhibits
11, 24; Claimant's Exhibit 1; Employer's Exhibit 1. The administrative law judge also properly noted that the
record does not contain any evidence of cor pulmonale with right sided congestive heart failure. Decision and
Order at 9. Consequently, we affirm the administrative law judge's findings that the newly submitted evidence
is insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(3) (2000). See 20
C.F.R. §718.204(b)(2)(i)-(iii).
Claimant contends that the administrative law judge erred in finding the newly submitted medical opinion
evidence insufficient to establish total disability. Claimant specifically contends that the administrative law judge erred
in not according greater weight to Dr. Sundaram's opinion based upon his status as claimant's treating physician. The Sixth
Circuit has held that the opinions of treating physicians are entitled to greater weight than those of non-treating physicians.
See Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993). However, in the instant
case, the administrative law judge properly discredited Dr. Sundaram's opinion because he failed to reconcile his finding
of total disability with the non-qualifying objective evidence.[7] Decision and Order
at 9; Director's Exhibit 24; Claimant's Exhibit 1. The administrative law judge, therefore, found that Dr. Sundaram's
opinions regarding the extent of claimant's disability were "conclusory and unreasoned." Id. An administrative
law judge may properly find that a physician's opinion is not well reasoned where he does not adequately explain how he
arrived at his conclusion that the miner suffered from a totally disabling respiratory or pulmonary impairment. See
Clark v. Karst Robbins Coal Co., 12 BLR 1-149 (1989) (en banc); Lucostic v. United States
Steel Corp., 8 BLR 1-46 (1985). The administrative law judge also found that Dr. Sundaram's finding of total disability
was called into question by the contrary opinions of Drs. Younes and Jarboe.[8]
Decision and Order at 9; Director's Exhibit 11; Employer's Exhibit 1. Because the administrative law judge properly
discredited Dr. Sundaram's opinion, he was not required to accord greater weight to his opinion based upon his status as
claimant's treating physician. See generally Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th
Cir. 1995). We find no error in the administrative law judge's consideration of Dr. Sundaram's opinion. We, therefore,
affirm the administrative law judge's finding that the newly submitted medical opinion evidence is insufficient to establish
total disability pursuant to 20 C.F.R. §718.204(c)(4) (2000). See 20 C.F.R. §718.204(b)(2)(iv).
In light of our affirmance of the administrative law judge's findings that the newly submitted evidence is insufficient
to establish total disability, we affirm the administrative law judge's finding that the evidence is insufficient to
establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Ross, supra.
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
BETTY JEAN HALL
Administrative Appeals Judge
To Top of Document
Footnotes.
1)Claimant is identified as both Chafins and Chaffins throughout the record. The administrative
law judge's Decision and Order identifies claimant as Chaffins. Claimant is similarly identified as Chaffins in claimant's
most recent brief. However, upon review, the more reliable evidence indicates that claimant's correct last name is Chafins.
In the adjudication of claimant's earlier 1980 claim, Administrative Law Judge T. Eugene Burts, the Board, and the
United States Court of Appeals for the Fourth Circuit each identified claimant as Chafins. See Director's Exhibit
25. Claimant is also identified as Chafins on his 1980 and 1999 claim forms, Director's Exhibits 1, 25, a Wage and Tax
Statement, Director's Exhibit 6, a Social Security Itemized Statement of Earnings, Director's Exhibit 7, and a Marriage
Certificate. Director's Exhibit 10. Moreover, the most recent documents containing claimant's signature indicate that
claimant's correct last name is Chafins. See Director's Exhibits 1, 9.
Back to Text
2)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.
Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and
stayed, inter alia, all claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determined that the regulations at issue in the lawsuit would
not affect the outcome of the case. National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction). On July 19, 2001, the Board ordered the parties to submit briefs
regarding the impact of the amended regulations. On August 9, 2001, the District Court issued its decision
upholding the validity of the challenged regulations and dissolving the February 9, 2001 order granting the
preliminary injunction. National Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C. 2001). By Order dated
August 15, 2001, the Board rescinded its Order requiring the parties to submit briefs addressing the impact of the
amended regulations.
Back to Text
3)The relevant procedural history of the instant case is as follows: Claimant initially filed a claim
for benefits on January 8, 1980. Director's Exhibit 25. In a Decision and Order dated September 29, 1988, Administrative
Law Judge T. Eugene Burts, after crediting claimant with at least twenty-one years of coal mine employment, found that
the x-ray evidence was sufficient to establish invocation of the interim presumption pursuant to 20 C.F.R.
§727.203(a)(1). Id. Judge Burts, however, found that the evidence was sufficient to establish rebuttal
pursuant to 20 C.F.R. §727.203(b)(3). Id. Judge Burts further found that claimant was not entitled to
benefits under 20 C.F.R. Part 410 and 20 C.F.R. §410.490. Id. Accordingly, Judge Burts denied benefits.
Id. By Decision and Order dated February 18, 1993, the Board affirmed Judge Burts' finding that the evidence was
sufficient to establish rebuttal pursuant to 20 C.F.R. §727.203(b)(3). Chafins v. H & C Coal Co., BRB No.
89-2722 BLA (Feb. 18, 1993) (unpublished). The Board, therefore, affirmed Judge Burts' denial of benefits. Id.
Claimant filed a second claim on June 14, 1993. Director's Exhibit 25. Since claimant's 1993 claim was filed
within one year of the issuance of the last denial of his 1980 claim, the 1993 claim constituted a timely request for
modification of the 1980 claim. See Stanley v. Betty B Coal Co., 13 BLR 1-72 (1990). The district director
denied claimant's request for modification on March 21, 1994, September 20, 1994 and January 13, 1995. Id.
There is no indication that claimant took any further action in regard to his 1980 claim.
Claimant filed a third claim on June 8, 1999. Director's Exhibit 1.
Back to Text
4)Although Section 725.309 has been revised, these revisions only apply to claims filed after
January 19, 2001.
Back to Text
5)The provision pertaining to total disability, previously set out at 20 C.F.R. §718.204(c),
is now found at 20 C.F.R. §718.204(b) while the provision pertaining to disability causation, previously set out at
20 C.F.R. §718.204(b), is now found at 20 C.F.R. §718.204(c).
Back to Text
6)A "qualifying" pulmonary function study or arterial blood gas study yields values which are equal
to or less than the applicable table values, i.e. Appendices B and C of Part 718. A "non-qualifying" study yields
values which exceed the requisite table values.
Back to Text
7)Dr. Sundaram examined claimant on October 4, 1999. Dr. Sundaram also relied upon the results
of a non-qualifying pulmonary function study conducted on October 4, 1999. A notation on claimant's October 4, 1999
pulmonary function study indicates that it was "normal." Director's Exhibit 24. In a medical report dated October 4, 1999,
Dr. Sundaram indicated that claimant was not physically able, from a pulmonary standpoint, to do his usual coal mine
employment due to shortness of breath with limited activity. Director's Exhibit 24.
Dr. Sundaram reexamined claimant on February 29, 2000. In a report dated February 29, 2000, Dr. Sundaram again
indicated that claimant was not physically able, from a pulmonary standpoint, to do his usual coal mine employment due
to shortness of breath with limited activity. Claimant's Exhibit 1. In support of this finding, Dr. Sundaram merely directed
reference to claimant's work history, physical exam, chest x-ray and pulmonary function study. Id. Dr. Sundaram
again referenced claimant's non-qualifying October 4, 1999 pulmonary function study. Id. Dr. Sundaram, however,
did not interpret claimant's October 4, 1999 pulmonary function study as revealing any degree of pulmonary impairment.
Back to Text
8)Dr. Younes examined claimant on June 16, 1999. In a report dated June 18, 1999, Dr. Younes
opined that claimant suffered from a mild pulmonary impairment. Director's Exhibit 11. Dr. Younes further indicated that
claimant retained the respiratory capacity to perform the work of a coal miner. Id.
Dr. Broudy examined claimant on June 13, 2000. In a report dated June 15, 2000, Dr. Broudy opined that claimant
had "no pulmonary functional impairment whatsoever." Employer's Exhibit 1.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document