BRB No. 99-1269 BLA
MABEL MERRITT )
(Widow of ROBERT HENRY MERRITT) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/16/2000
)
BETH ENERGY MINES, )
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 Daniel J. Roketenetz, Administrative
Law Judge, United States Department of Labor.
Mabel Merritt, Elkhorn City, Kentucky, pro se.
Natalie D. Brown (Jackson & Kelly PLLC), Lexington, Kentucky, for
employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] representing herself, appeals
the Decision and Order (98-BLA-0723) of Administrative Law Judge Daniel J.
Roketenetz denying benefits on a survivor's 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 instant case involves a
survivor's claim filed on February 4, 1997.[2] The
administrative law judge found the evidence insufficient to establish the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). The
administrative law judge also found the evidence insufficient to establish that the
miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
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).
Inasmuch as the instant survivor's claim was filed after January 1, 1982,
claimant must establish that the miner's death was due to pneumoconiosis pursuant
to 20 C.F.R. §718.205(c).[3] See 20
C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988). The case at bar arises within the jurisdiction of
the United States Court of Appeals for the Sixth Circuit which has held that
pneumoconiosis will be considered a substantially contributing cause of the miner's
death if it actually hastened the miner's death. Brown v. Rock Creek Mining
Co., 996 F.2d 812, 17 BLR 2-135 (6th Cir. 1993).
After consideration of the administrative law judge's Decision and Order, the
issues on appeal, and the evidence of record, we conclude that substantial evidence
supports the administrative law judge's denial of benefits under 20 C.F.R. Part
718. The administrative law judge properly found that the miner's death
certificate[4] was insufficient to support a finding of
death due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Decision and
Order at 9. The administrative law judge also properly noted that none of the
hospital records or reports indicate that pneumoconiosis caused or hastened the
miner's death in any way. Id. Finally, the administrative law judge
correctly stated that Drs. Jarboe, Branscomb and Dahhan opined that pneumoconiosis
neither caused nor hastened the miner's death.[5]
Id.; Employer's Exhibits 1, 2, 4-6. Consequently, we affirm the
administrative law judge's finding that the evidence is insufficient to establish
that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c).[6]
In light of our affirmance of the administrative law judge's finding that the
evidence was insufficient to establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c), we need not address the
administrative law judge's findings pursuant to 20 C.F.R. §718.202(a)(1)-(4).
See Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant is the surviving spouse of the deceased miner who died
on March 5, 1996. Director's Exhibit 6.
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2)The miner filed a claim for benefits on July 12, 1979. Director's Exhibit 26. In a Decision
and Order dated August 15, 1983, Administrative Law Judge John C. Holmes denied benefits. Id. Judge
Holmes denied the miner's motion for reconsideration on September 9, 1983. Id. By Decision and Order
dated June 16, 1986, the Board affirmed Judge Holmes's denial of benefits. Merritt v. Bethlehem Steel
Corp., BRB No. 83-2228 BLA (June 16, 1986) (unpublished); Director's Exhibit 26. There is no indication that
the miner took any further action in regard to his 1979 claim.
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3)Section 718.205(c) provides, in pertinent part, that death will
be considered to be due to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence established that the miner's death
was due to pneumoconiosis, or
(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or
(3) Where the presumption set forth at §718.304 is applicable.
20 C.F.R. §718.205(c).
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4)Dr. Page completed the miner's death certificate. Dr. Page attributed the miner's death
to cardiac arrest due to coronary artery disease with arrhythmia. Director's Exhibit 6. Dr. Page listed chronic
obstructive pulmonary disease and peripheral vascular disease as other significant conditions that contributed to the
miner's death. Id. Dr. Page did not indicate, however, that the miner's chronic obstructive pulmonary disease
was attributable to his coal dust exposure. Id.
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5)In a report dated September 21, 1998, Dr. Jarboe opined that coal workers' pneumoconiosis
did not cause, contribute to, or in any way hasten the miner's death. Employer's Exhibit 1.
In a report dated September 15, 1998, Dr. Branscomb opined that coal workers' pneumoconiosis did not
contribute to or hasten the miner's death. Employer's Exhibit 2. Dr. Branscomb reiterated his opinion during an
October 19, 1998 deposition. Employer's Exhibit 6.
In a report dated September 8, 1998, Dr. Dahhan opined that there was no evidence that the miner's death was
caused by, contributed to, or aggravated by his coal dust exposure or coal workers' pneumoconiosis. Employer's Exhibit
4. Dr. Dahhan reiterated his opinion during an October 12, 1998 deposition. Employer's Exhibit 5.
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6)Because there is no evidence of complicated pneumoconiosis in
the record, claimant is precluded from establishing entitlement based on the
irrebuttable presumption at 20 C.F.R. §718.304. See 20 C.F.R.
§718.205(c)(3).
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NOTE: This is an UNPUBLISHED BLA Document.
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