BRB No. 00-1055 BLA
IRENE COLLETT (On behalf of and as )
Widow of EUGENE COLLETT) )
)
Claimant-Petitioner )
)
v. )
)
SHAMROCK COAL COMPANY, ) DATE ISSUED:08/30/2001
INCORPORATED )
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Rudolf L. Jansen,
Administrative Law Judge, United States Department of Labor.
John Hunt Morgan, Hyden, Kentucky, for claimant.
Ronald E. Gilbertson (Bell, Boyd & Lloyd PLLC), Washington, D.C., for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant, the widow of the miner, appeals the Decision and Order - Denying
Benefits (99-BLA-1250and 99-BLA-1251) of Administrative Law Judge Rudolf L. Jansen
on both a miner's claim and 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).[1] The
administrative law judge found, and the parties stipulated to, at least twelve and
one-half years of coal mine employment and adjudicated the claim pursuant to 20
C.F.R. Part 718.[2] Decision and Order at 4.
Considering the newly submitted evidence, in conjunction with the previously
submitted evidence, and the prior Decision and Order denying benefits on the
miner's claim, the administrative law judge concluded that the evidence of record
was insufficient to establish entitlement to the interim presumption of totally
disabling coal worker's pneumoconiosis at 20 C.F.R. §727.203(a) and
insufficient to establish entitlement under the regulations found at 20 C.F.R. Part
718. The administrative law judge further found that neither a mistake in a
determination of fact nor a change in conditions, sufficient to justify
modification of the denial of benefits in the miner's claim, was established.
Accordingly, benefits on the miner's claim were denied. Turning to the survivor's
claim, the administrative law judge found that, in addition to failing to establish
the existence of pneumoconiosis, the evidence of record also failed to establish
that pneumoconiosis, even if it existed, hastened the miner's death in any way.
Accordingly, benefits were denied on the survivor's claim.
On appeal, claimant contends that the administrative law judge properly
examined the newly submitted x-ray and medical opinion evidence in regard to the
miner's claim, but failed to properly examine all the x-ray and medical opinion
evidence in connection with the survivor's claim. Claimant also contends that the
administrative law judge erred in failing to find that the miner's death was
hastened by pneumoconiosis in connection with the survivor's claim. The employer
responds urging affirmance of the denial of benefits on both the miner's claim and
the survivor's claim. The Director, Office of Workers' Compensation Programs, has
filed a letter indicating that he will not participate 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 into the Act 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 establish 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 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).
To establish entitlement to survivor's benefits, claimant must establish that
the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal
mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R.
§§718.3, 718.202, 718.203, 718.205(a); see Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990); Boyd v. Director, OWCP, 11 BLR 1-39 (1988). For survivor's
claims filed on or after January 1, 1982, death will be considered to be due to
pneumoconiosis if pneumoconiosis was the cause of the miner's death, pneumoconiosis
was a substantially contributing cause or factor leading to the miner's death,
death was caused by complications of pneumoconiosis, or the presumption, relating
to complicated pneumoconiosis, set forth at Section 718.304, is applicable. 20
C.F.R. §718.205(c)(1)-(3). Pneumoconiosis is a substantially contributing
cause of the miner's death if it hastens the miner's death. 20 C.F.R.
§718.205(c)(5); see Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995); Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17
BLR 2-135 (6th Cir. 1993).
The United States Court of Appeals for the Sixth Circuit, within whose
jurisdiction the instant case arises, has held in Consolidation Coal Co. v.
Worrell, 27 F.3d 227, 18 BLR 2-290 (6th Cir. 1994), that the administrative law
judge must determine whether a change in conditions or a mistake in a determination
of fact has been made even where no specific allegation of either has been made.
Furthermore, in determining whether modification has been established pursuant to
Section 725.310 (2000), the administrative law judge is obligated to perform an
independent assessment of the newly submitted evidence, considered in conjunction
with the previously submitted evidence, to determine if the weight of the new
evidence is sufficient to establish the element or elements of entitlement which
defeated entitlement in the prior decision. Nataloni v. Director, OWCP, 17
BLR 1-82 (1993); Kovac v. BCNR Mining Corp., 14 BLR 1-156 (1990),
modified on recon., 16 BLR 1-71 (1992); Wojtowicz v. Duquesne Light
Co., 12 BLR 1-162 (1989); see O'Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254 (1971).
Turning first to the miner's claim, because claimant contended that the
administrative law judge properly examined the newly submitted x-ray and medical
opinion evidence on modification, we affirm the administrative law judge's findings
thereunder. See Cox v. Director, OWCP, 791 F.2d 445, 9 BLR 2-46 (6th Cir.
1986), aff'g 7 BLR 1-610 (1984). Likewise, regarding the issue of total
disability, we will not address claimant's general contention that the evidence
establishes total disability in the miner's claim as it is not sufficiently
briefed.[3] Cox, supra; Sarf v.
Director, OWCP, 10 BLR 1-119 (1987); see Zimmerman v. Director, OWCP,
871 F.2d 564, 12 BLR 2-254 (6th Cir. 1989); Fields v. Island Creek Coal Co.,
10 BLR 1-19 (1987).
Turning to the survivor's claim, claimant contends generally that the x-ray
evidence of record is sufficient to establish the existence of pneumoconiosis in
the survivor's claim. Again, however, claimant fails to identify with specificity
any error made by the administrative law judge in his consideration of the x-ray
evidence. Accordingly, we must affirm the administrative law judge's finding that
the x-ray evidence did not establish the existence of pneumoconiosis. Cox,
supra.
Claimant next contends that the administrative law judge erred in his weighing
of the medical opinion of evidence, specifically contending that the opinions of
Drs. Varghese and Bushey are sufficient to establish the existence of
pneumoconiosis. We disagree. Contrary to claimant's argument, the administrative
law judge permissibly accorded greater weight to the opinions of Drs. Naeye and
Hutchins who found that the miner did not have pneumoconiosis, than to the contrary
opinions of Drs. Varghese and Bushey, because their opinions were based on an
extensive review of the evidence, while Dr. Varghese provided no explanation for
his diagnosis of pneumoconiosis and Dr. Bushey relied on an imprecise smoking
history which did not reflect the magnitude of the miner's smoking history.
Decision and Order at 11. See Tennessee Consolidated Coal Co. v. Crisp, 866
F.2d 179, 185, 12 BLR 2-121, 2-130 (6th Cir. 1989); Bobick v. Saginaw Mining
Co., 13 BLR 1-52 (1988); Tackett v. Cargo Mining Co., 12 BLR 1-11
(1988)(en banc), aff'd sub nom. Director, OWCP v. Cargo Mining
Co., Nos. 88-3531, 88-3578 (6th Cir. May 11, 1988)(unpub.); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Dillon v. Peabody
Coal Co., 11 BLR 1-113 (1988); King v. Consolidation Coal Co., 8 BLR 1-262 (1985); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Stark
v. Director, OWCP, 9 BLR 1-36 (1986); Maypray v. Island Creek Coal Co.,
7 BLR 1-683 (1985). Thus, the administrative law judge permissibly found that the
existence of pneumoconiosis was not established by medical opinion evidence.[4]
Finally, with respect to the survivor's claim, claimant contends that the
administrative law judge erred in finding that the medical opinion evidence did not
establish that the miner's death was due to pneumoconiosis. We disagree. The
administrative law judge permissibly found Dr. Delara's opinion, finding that
pneumoconiosis contributed to death, was outweighed by the contrary, better
supported and better reasoned opinions of record. Clark, supra;
King, supra; Fields, supra; see Griffith v.
Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995). We therefore affirm
the administrative law judge's finding that the evidence is insufficient to
establish death due to pneumoconiosis as supported by substantial evidence.
The administrative law judge is empowered to weigh the medical evidence and
to draw his own inferences therefrom, see Maypray, supra, and the
Board may not reweigh the evidence or substitute its own inferences on appeal.
See Clark, supra; Anderson v. Valley Camp of Utah,
Inc., 12 BLR 1-111 (1989). Consequently, we affirm the administrative law
judge's finding that the evidence of record is insufficient to establish the
existence of pneumoconiosis, total disability or death due to pneumoconiosis.
See Griffith, supra; Worrell, supra; Brown,
supra; Trent, supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order Denying
Benefits on both the miner's claim and the survivor's claim is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
To Top of Document
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, 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 forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief 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, determines that the regulations at issue in
the lawsuit would not affect the outcome of the case. National Mining
Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting
preliminary injunction). The Board subsequently issued an order requesting
supplemental briefing in the instant case. 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 Association v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001).
The court's decision renders moot those arguments made by the parties regarding the
impact of the challenged regulations.
Back to Text
2) The miner filed his first claim for benefits on May 7, 1979,
which was denied on January 21, 1987. Director's Exhibits 1, 43. The denial was
affirmed by the Board on September 30, 1988. Director's Exhibit 54. The miner
requested modification on September 6, 1989, which was denied on December 11, 1991.
Director's Exhibits 55, 85. On June 29, 1993, the Board reversed the denial of
modification and remanded for consideration of the claim under Part 727, rather
than Part 718. Director's Exhibit 98. On December 16, 1993, benefits were denied
again and the Board affirmed the denial. Director's Exhibits 100, 111. The miner
requested modification on March 1, 1996, which was denied on March 17, 1997.
Director's Exhibits 142, 149. The miner filed a request for modification on August
12, 1998, which was denied on October 9, 1998. Director's Exhibits 150, 155. The
miner died on January 7, 1999. Claimant filed a survivor's claim for benefits on
February 5, 1999.
Back to Text
3) Claimant appears to argue that the administrative law judge
erred in failing to consider that the miner's usual coal mine employment required
him to work in a very dusty environment and that his physical condition would have
precluded him from working in such an environment. Brief for Claimant at 7.
Claimant is mistaken, however, in believing that this evidence bears upon a
determination of total disability. See Zimmerman v. Director, OWCP,
871 F.2d 564, 12 BLR 2-254 (6th Cir. 1989).
Back to Text
4) The administrative law judge's finding pursuant to Section
718.202(a)(2) and (3)(2000) are affirmed as unchallenged on appeal. Skrack v.
Island Creek Coal Co., 6 BLR 1- 710 (1983).
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
