BRB No. 99-1174 BLA
PAUL R. COLE )
)
Claimant-Petitioner )
)
v. )
)
JIM WALTERS RESOURCES, ) DATE ISSUED:08/16/2000
INCORPORATED )
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Gerald M. Tierney, Administrative
Law Judge, United States Department of Labor.
Paul R. Cole, Empire, Alabama, pro se.
Stephen E. Brown (Maynard, Cooper & Gale, P.C.), Birmingham, Alabama,
for employer.
Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant, representing himself, appeals the Decision and Order (98-BLA-0412)
of Administrative Law Judge Gerald M. Tierney 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).
After crediting claimant with twenty-nine years of coal mine employment, the
administrative law judge found that the evidence was insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4).
Accordingly, the administrative law judge denied benefits. On appeal, claimant
generally contends that the administrative law judge erred in denying benefits.
Employer responds in support of the administrative law judge's denial of benefits.
The Director, Office of Workers' Compensation Programs, has not filed a response
brief.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue to be whether the Decision and Order below is supported by
substantial evidence. Stark v. Director, OWCP, 9 BLR 1-36 (1986). We 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).
In order to establish entitlement to benefits under 20 C.F.R. Part 718 in a
living miner's claim, a claimant must establish the existence of pneumoconiosis,
that the pneumoconiosis arose out of coal mine employment, and that the
pneumoconiosis is totally disabling. 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).
In determining whether the x-ray evidence of record was sufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1), the administrative law judge properly found that all of the
x-ray interpretations of record are negative for pneumoconiosis. Decision and
Order at 3; Director's Exhibits 9, 10, 18; Employer's Exhibit 1. We, therefore,
affirm the administrative law judge's finding that claimant failed to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).
Since the record does not contain any biopsy or autopsy evidence, the
administrative law judge properly found that claimant is precluded from
establishing the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(2). Decision and Order at 3. Furthermore, the administrative law
judge properly found that claimant is not entitled to any of the statutory
presumptions arising under 20 C.F.R. §718.202(a)(3). Id. Because there
is no evidence of complicated pneumoconiosis in the record, the Section 718.304
presumption is inapplicable. See 20 C.F.R. §718.304. The Section
718.305 presumption is inapplicable because claimant filed the instant claim after
January 1, 1982. See 20 C.F.R. §718.305(e). Finally, inasmuch as the
instant claim is not a survivor's claim, the Section 718.306 presumption is also
inapplicable. See 20 C.F.R. §718.306.
In his consideration of whether the medical opinion evidence was sufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(4), the administrative law judge properly found that the record
does not contain any medical opinion evidence supportive of a finding of
pneumoconiosis. Decision and Order at 3; Director's Exhibits 7, 18. The record
contains medical reports prepared by Drs. Goldstein and Hasson. In the portion of
his February 7, 1997 report reserved for the listing of cardiopulmonary diagnoses,
Dr. Goldstein indicated "none." Director's Exhibit 7. In his September 30, 1997
report, Dr. Hasson diagnosed, inter alia, asthma, obstructive sleep apnea,
and allergic rhinitis and sinusitis. Director's Exhibit 18. Because Dr. Hasson
does not attribute any of claimant's illnesses to his coal dust exposure, the administrative law judge properly found that
Dr. Hasson's diagnoses are insufficient to constitute a finding of pneumoconiosis. See 20 C.F.R.
§718.201; Decision and Order at 3. We, therefore, affirm the administrative
law judge's finding that the medical opinion evidence is insufficient to establish
the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4).
In light of our affirmance of the administrative law judge's finding that
claimant failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4), an essential element of entitlement, we affirm the
administrative law judge's denial of benefits under 20 C.F.R. Part 718. See
Trent, supra; Gee, supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
NOTE: This is an UNPUBLISHED BLA Document.
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