BRB No. 99-1282 BLA
ALTA VANOVER )
(Widow of HERSHEL VANOVER) )
)
Claimant-Petitioner )
)
v. )
)
MULLINS COAL COMPANY, ) DATE ISSUED:08/31/2000
INCORPORATED OF VIRGINIA )
)
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 Linda S. Chapman, Administrative Law
Judge, United States Department of Labor.
Alta Vanover, Pound, Virginia, pro se.
Melissa Amos Young (Gentry Locke Rakes & Moore), Roanoke, Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals, without the assistance of counsel,[1] the Decision and Order (99-BLA-0001) of Administrative Law Judge Linda
S. Chapman 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). Initially, Administrative Law Judge
Frederick D. Neusner credited the miner with at least thirty-seven and one-half
years of coal mine employment and determined that employer was the responsible
operator. Judge Neusner found the evidence of record sufficient to establish the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(2), but insufficient to
establish that pneumoconiosis caused, contributed to or hastened the miner's death
at 20 C.F.R. §718.205. Accordingly, benefits were denied. On appeal, the
Board affirmed Judge Neusner's finding that the evidence of record was insufficient
to show that pneumoconiosis was a substantial contributing cause of the miner's
death and therefore affirmed the denial of benefits. See Vanover v. Mullins Coal
Co., BRB No. 96-1386 BLA (May 28, 1997)(unpub.).
Pursuant to a request for modification, Administrative Law Judge Linda S.
Chapman (the administrative law judge) determined that claimant's request for
modification was timely, credited the miner with thirty-three years of coal mine
employment, found employer to be the responsible operator, found the evidence
sufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(2), but found the evidence insufficient to establish that
pneumoconiosis was a substantially contributing cause or factor leading to the
miner's death or that the miner's death was caused by complications of
pneumoconiosis at 20 C.F.R. §718.205(c). Accordingly, benefits were denied.
In the instant appeal, claimant generally challenges the administrative law
judge's finding that claimant failed to establish that the miner's death was due
to pneumoconiosis. Employer responds, urging affirmance of the Decision and Order
of the administrative law judge as supported by substantial evidence. The
Director, Office of Workers' Compensation Programs (the Director), has filed a
letter indicating that he will not participate in this appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-85
(1994); McFall v. Jewell Ridge Coal Co., 12 BLR 1-176 (1989); Stark v.
Director, OWCP, 9 BLR 1-36 (1986). We must affirm the administrative law
judge's Decision and Order if the findings of fact and conclusions of law are
rational, supported by substantial evidence, and in accordance with law. 33 U.S.C.
§921(b)(3), as incorporated by 30 U.S.C. §932(a).
In order to establish entitlement to benefits in a survivor's claim filed
after January 1, 1982, claimant must establish that the miner suffered from
pneumoconiosis arising out of coal mine employment,[2] that the miner's death was due to pneumoconiosis, that pneumoconiosis
was a substantially contributing cause or factor leading to the miner's death or
that death was caused by complications of pneumoconiosis.[3] See 20 C.F.R. §§718.202(a), 718.203, 718.205(c);
Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert.
denied 113 S.Ct. 969 (1993); Trumbo v. Reading Anthracite Co., 17 BLR
1-85 (1993); Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v.
Director, OWCP, 11 BLR 1-39 (1988). The United States Court of Appeals for the
Fourth Circuit has held that any condition that hastens the miner's death is a
substantially contributing cause of death for purposes of Section 718.205(c)(2).
See Shuff, supra.
After consideration of the administrative law judge's Decision and Order and
the evidence of record, we conclude that the Decision and Order of the
administrative law judge is supported by substantial evidence and that there is no
reversible error. Because this case involves a request for modification of a
denial of benefits in a previously filed survivor's claim, the administrative law
judge properly held that she could only consider this second survivor's claim on
the basis of whether a mistake in a determination of fact had been made in the
previous Decision and Order. Decision and Order at 3; 20 C.F.R. §725.310;
see Wojtowski v. Duquesne Light Co., 12 BLR 1-162 (1989). Although new
evidence is not necessary for the administrative law judge to decide if a mistake
in a determination of fact has occurred, in the instant case, the administrative
law judge properly considered the new medical opinion evidence submitted by both
parties. See Jessee v. Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir.
1993); Kovac v. BCNR Mining Corp., 14 BLR 1-156 (1990), modified on
recon., 16 BLR 1-71 (1992); Wojtowski, supra.
At Section 718.205(c), the administrative law judge properly accorded little
weight to the report of Dr. Tholpady, the miner's treating physician, indicating
that the miner's coal workers' pneumoconiosis and chronic obstructive pulmonary
disease were contributing factors in the miner's death as it was not supported by
any underlying documentation. See Carson v. Westmoreland Coal Co., 19 BLR
1-18 (1994); Tedesco v. Director, OWCP, 18 BLR 1-103 (1994); Lucostic v.
United States Steel Corp., 8 BLR 1-46 (1985). In finding the medical opinion
evidence insufficient to meet claimant's burden of proof, the administrative law
judge properly found Dr. Tholpady's opinion outweighed by the medical opinions of
Drs. Naeye, Mullins and Castle, which attributed the miner's death to heart disease
and opined that pneumoconiosis did not cause, contribute to or hasten the miner's
death. 20 C.F.R. §718.205(c); see Shuff, supra; Carson,
supra; Tedesco, supra; Lucostic, supra. Thus,
we affirm the finding of the administrative law judge that the evidence failed to
establish that the miner's pneumoconiosis was a substantially contributing cause
or factor leading to his death or that the miner's death was caused by
complications of pneumoconiosis and the denial of benefits as it is supported by
substantial evidence.
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Ron Carson, a benefits counselor with Stone Mountain Health Services of St. Charles, Virginia,
filed an appeal on behalf of claimant, but is not representing her on appeal. See Shelton v. Claude V. Keen Trucking
Co., 19 BLR 1-88 (1995)(Order).
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2) The administrative law judge did not make any findings as to whether the miner's
pneumoconiosis arose out of his coal mine employment. 20 C.F.R. §718.203. As claimant established that the miner
worked in the coal mines for more than 10 years, claimant is entitled to the presumption that the miner's pneumoconiosis
arose out of his coal mine employment. 20 C.F.R. §718.203(b). Furthermore, because all the physicians related the
miner's pneumoconiosis to his coal mine employment, rebuttal can not be established. See Director's Exhibits 12,
13, 14; Employer's Exhibits 1, 2; Claimant's Exhibit 1.
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3) Since the miner's last coal mine employment took place in Virginia, the Board will apply the law of the United
States Court of Appeals for the Fourth Circuit. See Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en
banc).
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NOTE: This is an UNPUBLISHED BLA Document.
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