BRB No. 00-1084 BLA
DOROTHY A. ZAJDEL )
(Widow of WILLIAM J. ZAJDEL) )
)
Claimant-Petitioner )
)
v. )
)
BARNES & TUCKER COMPANY ) 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 - Denying of Benefits of Daniel L.
Leland, Administrative Law Judge, United States Department of Labor.
Blair V. Pawlowski (Pawlowski, Bilonick & Long), Ebensburg,
Pennsylvania, for claimant.
John J. Bagnato (Spence, Custer, Saylor, Wolfe & Rose), Johnstown,
Pennsylvania, for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant, the widow of the miner, appeals the Decision and Order - Denying
Benefits (99-BLA-0984) of Administrative Law Judge Daniel L. Leland 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).[1] The administrative law judge found, and the
employer stipulated to, thirty-six years of coal mine employment and based on the
date of filing, adjudicated the claim pursuant to 20 C.F.R. Part 718. Decision and
Order at 2. The administrative law judge found the evidence of record insufficient
to establish that the miner's death was due to pneumoconiosis. Accordingly,
benefits were denied.
On appeal, claimant contends that the administrative law judge erred in his
weighing of the medical opinion evidence of record. Employer responds, urging
affirmance of the denial of benefits. The Director, Office of Workers'
Compensation Programs, has filed a letter indicating that he would not participate
in this appeal.[2]
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).
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)-(4). 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 Lukosevicz v. Director, OWCP, 888 F.2d 1001, 13 BLR
2-101 (3d Cir. 1989).
Claimant contends that the administrative law judge erred in according greater
weight to the opinions of Drs. Naeye, Kleinerman and Churg based on their superior
expertise. Rather, claimant contends that the administrative law judge failed to
evaluate sufficiently all the opinions of record and to consider the expertise of
the other physicians who also had superior credentials.
Although, as claimant contends, Dr Perper was also a published pathologist,
the administrative law judge permissibly accorded greater weight to the opinions
of Drs. Naeye, Kleinerman and Churg, pathologists who found that pneumoconiosis did
not contribute to death, not only because of their superior qualifications as
published experts in the field of occupational lung disease but also because their
opinions were supported by other medical evidence of record. This was proper.
Lango v. Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d Cir. 1997); Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Dillon v.
Peabody Coal Co., 11 BLR 1-113 (1988); Fields v. Island Creek Coal Co.,
10 BLR 1-19 (1987); Minnich v. Pagnotti Enterprises, Inc., 9 BLR 1-89
(1986); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); Lucostic v. United
States Steel Corp., 8 BLR 1-46 (1985); see also Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984); Kozele v. Rochester & Pittsburgh Coal Co.,
6 BLR 1-378 (1983).
The administrative law judge is empowered to weigh the medical evidence and
to draw his own inferences therefrom, see Maypray v. Island Creek Coal Co.,
7 BLR 1-683 (1985), 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). Accordingly, since the administrative
law judge rationally concluded that the evidence of record was insufficient to
establish that pneumoconiosis caused, contributed to, or hastened the miner's
death, we must affirm the administrative law judge's denial of benefits in this
survivor's claim as it is supported by substantial evidence and is in accordance
with law. See Lango, supra; Lukosevicz, supra;
Trumbo, supra; see also Director, OWCP v. Greenwich
Collieries, 114 S.Ct. 2251, 18 BLR 2A-1 (1994), aff'g sub nom.
Greenwich Collieries v. Director, OWCP [Ondecko], 990 F.2d 730, 17 BLR 2-64
(3d Cir. 1993); Trumbo, supra.
Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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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.
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2) On August 9, 2001, the United States District Court for the
District of Columbia issued its decision in National Mining Association v.
Chao, D.D.C., 00-3086 (Aug. 9, 2001), granting summary judgment defending final
regulations issued on December 20, 2000, 65 Federal Register 79920-80107 under
Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended. In
its decision, the court also dissolved the Preliminary Injunction Order that it had
issued on February 9, 2001. As a result of the court's decision, the issue raised
by the Preliminary Injunction Order is now moot, and we will not address the briefs
submitted by the parties in response to the Board's order of May 16, 2001.
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NOTE: This is an UNPUBLISHED BLA Document.
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