BRB No. 00-1074 BLA
CLARENCE E. BROWN )
)
Claimant-Petitioner )
)
v. )
)
DOMINION COAL CORPORATION )
) DATE ISSUED:08/30/2001
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 Joseph E. Kane, Administrative Law
Judge, United States Department of Labor.
Clarence E. Brown, Raven, Virginia, pro se.
Ronald E. Gilbertson (Bell, Boyd & Lloyd PLLC), Washington, D.C., for
employer.
Michelle S. Gerdano (Howard M. Radzely, Acting Solicitor of Labor;
Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy
Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel
for Administrative Litigation and Legal Advice), Washington, D.C., for
the Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant, representing himself,[1] appeals
the Decision and Order (99-BLA-1180) 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 October 15, 1998.[3] The administrative law judge found
the evidence insufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309. 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 (the Director), has filed a Motion to Remand, requesting that the Board remand the
case for reconsideration of whether the evidence is sufficient to establish a material change in conditions pursuant to 20
C.F.R. §725.309 (2000).[4] In a reply brief, employer objects to
the Director's Motion to Remand.
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).
The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, 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. Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20
BLR 2-227 (4th Cir. 1995), cert. denied, 117 S.Ct. 763 (1997). Claimant's 1994 claim was denied because claimant
failed to establish that he was totally disabled due to pneumoconiosis. Director's Exhibit 30. 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.
All of the newly submitted pulmonary function and arterial blood gas studies are non-qualifying. Director's
Exhibits 8, 12; Claimant's Exhibits 7, 10; Employer's Exhibit 8. There is no newly submitted medical opinion
evidence that supports a finding that claimant suffers from a totally disabling respiratory or pulmonary
impairment[5] and no evidence of cor pulmonale with right sided
congestive heart failure. Inasmuch as it is based upon substantial evidence, we affirm the alj's finding that the
newly submitted evidence is insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)
(2000)[6] and, therefore, insufficient to establish a material change
in conditions pursuant to 20 C.F.R. §725.309 (2000).
The record, however, contains newly submitted evidence supportive of a finding of complicated
pneumoconiosis. This evidence, if credited, could establish entitlement to the irrebuttable presumption set out at
20 C.F.R. §718.304[7] and, therefore, to a finding of a material
change in conditions pursuant to 20 C.F.R. §725.309 (2000).
In his consideration of whether the newly submitted evidence was sufficient to establish the existence of
complicated pneumoconiosis, the administrative law judge stated:
Entitlement to benefits thus comes down to two issues. (1) does the claimant have complicated
pneumoconiosis, and thus the benefit of the §718.304 presumption of total disability due to
pneumoconiosis? [and] (2) does a finding of complicated pneumoconiosis establish a material change in
conditions from the previous denial?
In regards to the second issue, it is highly significant that the newly submitted evidence does not
differ qualitatively from that previously submitted. The crux of the debate is still whether the large
lesion, which is undisputably present on the x-rays is due to complicated coal workers' pneumoconiosis
or a granulomatous disease, particularly tuberculosis. The interpretations of the x-rays still differ
accordingly, and the reasons given in support of those interpretations are still the same. As before, the
claimant's PPD and sputum tests are negative.
Judge Tureck found that the weight of the evidence established that the large mass was due to
tuberculosis, not coal workers' pneumoconiosis. Were I to find complicated pneumoconiosis instead,
what would be shown is a mistake in the prior determination, not a material change in
conditions. And mistakes of fact can only be corrected through modification proceedings, which is no
longer an option available to claimant. Compare §725.310 with §725.309(d).
As the Court of Appeals for the Fourth Circuit pointed out, "[t]he purpose of section 725.309(d) is not
to allow a claimant to revisit an earlier denial of benefits, but rather only to show that his condition has
materially changed since the earlier denial." Lisa Lee. Therefore, after careful consideration
of the evidence and the law, I find that the newly developed evidence does not show a material change
in condition, and as such, the claimant's claim for benefits must be denied.
Decision and Order at 13 (footnote omitted).
The Director contends that the administrative law judge erred in focusing upon Judge Tureck's finding that the
evidence was insufficient to establish the existence of complicated pneumoconiosis. We agree. In considering whether
the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000),
the administrative law judge should have independently considered whether the newly submitted medical evidence was
sufficient to establish the existence of complicated pneumoconiosis.[8]
See Rutter, supra. Consequently, we vacate the administrative law judge's finding that claimant
failed to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000) and remand the case
for further consideration. On remand, the administrative law judge is instructed to specifically consider and determine
whether the newly submitted evidence is sufficient to establish the existence of complicated pneumoconiosis pursuant
to 20 C.F.R. §718.304, thereby establishing a material change in conditions pursuant to 20 C.F.R.
§725.309 (2000).
Should the administrative law judge, on remand, find the newly submitted evidence sufficient to establish a
material change in conditions pursuant to 20 C.F.R. §725.309 (2000), he must consider claimant's 1998 claim
on the merits, based on a weighing of all the evidence of record. See Shupink v. LTV Steel
Corp., 17 BLR 1-24 (1992).
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed in part and vacated in part, and the case is remanded for
further consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)We note employer's concerns regarding claimant's pro se
status expressed in its letter of December 14, 2000. However, as claimant has
filed an affidavit affirmatively stating that he is proceeding without the
assistance of counsel, we will consider this appeal under the general standard of
review. 20 C.F.R. §§802.211(e), 802.220.
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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). 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 Ass'n 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.
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3)The relevant procedural history of the instant case is as follows: Claimant initially filed
a claim for benefits on July 13, 1992. Director's Exhibit 29. In a Memorandum of Informal Conference dated March
4, 1993, the district director denied the claim. Id. There is no indication that claimant took any further
action in regard to his 1992 claim.
Claimant filed a second claim on May 25, 1994. Director's Exhibit 30. By Decision and Order dated June 28,
1996, Administrative Law Judge Jeffrey Tureck found that the evidence was insufficient to establish that claimant was
totally disabled due to pneumoconiosis. Id. Judge Tureck further found that the evidence was insufficient
to establish the existence of complicated pneumoconiosis, thereby precluding claimant from establishing entitlement
based upon the irrebuttable presumption set out at 20 C.F.R. §718.304 (2000). Judge Tureck, therefore, denied
benefits. Id. Claimant subsequently filed an appeal with the Board. By Order dated January 7, 1997, the
Board ordered claimant to show cause within ten days why his appeal should not be dismissed for failure to comply with
the requirements as to the timely filing of a Petition for Review and brief. Brown v. Dominion Coal Corp.,
BRB No. 96-1427 BLA (Jan. 7, 1997) (Order) (unpublished). Claimant failed to respond to the Board's Order or file
a pleading. Consequently, by Order dated April 15, 1997, the Board dismissed claimant's appeal as abandoned.
Brown v. Dominion Coal Corp., BRB No. 96-1427 BLA (Apr. 15, 1997) (Order) (unpublished).
Claimant filed a third claim on October 15, 1998. Director's Exhibit 1.
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4)Although Section 725.309 has been revised, these revisions apply only to claims filed after
January 19, 2001.
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5)Dr. Smiddy, in a letter dated March 9, 1999, opined that claimant was disabled by
complicated pneumoconiosis. Claimant's Exhibit 9. In a report dated March 20, 2000, Dr. Robinette
opined that claimant had evidence of complicated pneumoconiosis and was disabled from working in a dusty
environment on the basis of his radiographic abnormalities. Claimant's Exhibit 7. The findings of disability set
forth by Drs. Smiddy and Robinette appear to be based upon their respective diagnoses of complicated
pneumoconiosis rather than any assessment of claimant's respiratory function. Dr. Robinette, in fact, noted that
there was no evidence of functional impairment. Id.
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6)The provision pertaining to total disability, previously set out at 20 C.F.R. §718.204(c),
is now set out 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).
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7)The introduction of legally sufficient evidence of complicated pneumoconiosis does not
automatically qualify a claimant for the irrebuttable presumption found at 20 C.F.R. §718.304. The
administrative law judge must examine all the evidence on this issue, i.e., evidence of simple and
complicated pneumoconiosis, as well as evidence of no pneumoconiosis, resolve the conflicts, and make a finding of
fact. See Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991) (en banc); Truitt v.
North American Coal Corp., 2 BLR 1-199 (1979), aff'd sub nom. Director, OWCP v. North
American Coal Corp., 626 F.2d 1137, 2 BLR 2-45 (3d Cir. 1980).
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8)In the previous denial of benefits, Administrative Law Judge Jeffrey Tureck credited the
opinions of Drs. Wheeler, Branscomb and Templeton that claimant did not suffer from complicated pneumoconiosis.
Director's Exhibit 30. The record, however, contains interpretations of x-rays taken subsequent to Judge Tureck's denial
of benefits. Specifically, the record includes interpretations of x-rays taken on April 30, 1996, September 17, 1996, January
7, 1997, September 8, 1997, March 10, 1998, September 10, 1998, November 6, 1998, March 9, 1999, October 28, 1999,
March 7, 2000 and March 13, 2000. Many of these x-rays were interpreted as positive for complicated pneumoconiosis.
Moreover, the record contains newly submitted medical opinions supportive of a finding of complicated pneumoconiosis.
These opinions are based, in part, upon physical examinations conducted subsequent to Judge Tureck's denial of
benefits.
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NOTE: This is an UNPUBLISHED BLA Document.
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