BRB No. 00-1087 BLA
LAWRENCE O'QUINN )
)
Claimant-Petitioner )
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v. )
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BIG TRACK COAL COMPANY ) DATE ISSUED:08/30/2001
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and )
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ROCKWOOD INSURANCE COMPANY )
)
Employer/Carrier- )
Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Daniel J. Roketenetz, Administrative
Law Judge, United States Department of Labor.
Lawrence O'Quinn, Birchleaf, Virginia, pro se.
Timothy W. Gresham (Penn, Stuart & Eskridge), Abingdon, Virginia, for
employer.
Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals, without the assistance of counsel,[1] the Decision and Order (99-BLA-01080) of Administrative Law Judge
Daniel J. Roketenetz denying benefits on a request for modification of a duplicate
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] Pursuant to claimant's timely request for
modification and following a hearing, the administrative law judge found that
because claimant's prior claim was finally denied in 1991, the claim before him,
which was filed in 1994, constituted a duplicate claim.[3] The administrative law judge further concluded, however, that since
the prior claim was denied because claimant failed to show a material change in
conditions by establishing a totally disabling respiratory impairment, he must
review the new evidence submitted on modification, along with the evidence
submitted in support of the previous claim, to determine whether it was sufficient
to demonstrate the presence of a totally disabling respiratory impairment.
Considering the evidence, the administrative law judge concluded that because
claimant did not establish the presence of a totally disabling respiratory
impairment, modification was not established. Accordingly, benefits were denied.
On appeal, claimant generally challenges the findings of the administrative
law judge regarding the presence of a totally disabling respiratory impairment.
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.
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 for the duration of the lawsuit, 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 claims, determines that the
regulations at issue in the lawsuit will 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). In the present case, the Board
established a briefing schedule by order issued on May 18, 2001, to which employer
and the Director responded, asserting that the regulations at issue in the lawsuit
do not affect the outcome of this case.[4] Based
on the briefs submitted by employer and the Director, and our review of the record,
we hold that the disposition of this case is not impacted by the challenged
regulations. Therefore, we will proceed to adjudicate the merits of 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 living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must prove 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 one 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).
In reviewing the newly submitted evidence, the administrative law judge
properly concluded that the x-rays submitted by claimant would not assist claimant
in his request for modification since claimant had already established the
existence of pneumoconiosis, and x-rays are not indicative of the presence of a
totally disabling respiratory impairment.[5]
See generally Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).
Concerning the presence of a totally disabling respiratory impairment, the
administrative law judge properly found that claimant failed to meet his burden of
proof on this issue based on the new pulmonary function study and the new blood gas
study evidence, as he correctly concluded that the new pulmonary function study and
blood gas study evidence produced values above the qualifying values for a totally
disabling respiratory impairment set forth by the regulatory criteria. See
Decision and Order at 8-9; 20 C.F.R. §718.204(b)(2)(i), (ii); Milburn
Colliery Company v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998);
Beatty v. Danri Corp., 49 F.3d 993, 19 BLR 2-136 (3d Cir. 1995),
aff'g 16 BLR 1-11 (1991). Likewise, the administrative law judge correctly
found that the new evidence did not contain any medical report which diagnosed the
presence of cor pulmonale with right-sided congestive heart failure, and hence,
claimant did not establish a totally disabling respiratory impairment on this
basis. See Decision and Order at 9; 20 C.F.R. §718.204(b)(2)(iii).
Further, the administrative law judge properly concluded that as none of the new
medical reports diagnosed the presence of any respiratory or pulmonary impairment,
claimant had not established the presence of a totally disabling respiratory
impairment. See Decision and Order at 7-9; 20 C.F.R.
§718.204(b)(2)(iv); Hicks, supra; Beatty, supra.
Finally, the administrative law judge properly found that the newly submitted
medical evidence, as well as his review of the evidence in the record, did not
reflect a mistake in a determination of fact by the previous administrative law
judge. 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). We, therefore, affirm the finding of the
administrative law judge that claimant failed to demonstrate the presence of a
totally disabling respiratory impairment, and thus, a change in conditions or a
mistake in a determination of fact, as it is supported by substantial evidence.
Therefore, we affirm the denial of benefits on modification.
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
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 Vansant, Virginia,
requested on behalf of claimant that the Board review the administrative law judge's decision, but Mr. Carson is not
representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88 (1995)(Order).
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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, 725 and 726). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
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3) Claimant filed his initial application for benefits with the Social Security Administration (SSA)
on February 26, 1973, which SSA denied on May 25, 1973 and November 8, 1973 because claimant was still working and
there was no evidence of complicated pneumoconiosis. This claim was also denied by an administrative law judge on
August 7, 1975. See Director's Exhibit 28 and marked as prior Director's Exhibit 35.
Claimant filed his second application for benefits with the Department of Labor (DOL) on February 2, 1977 and
requested DOL review of his previously denied SSA claim on April 14, 1978. Id. DOL denied these claims on
February 21, 1980. See Director's Exhibit 28 and marked as prior Director's Exhibit 37.
Claimant filed his third application for benefits with DOL on February 3, 1983 which the district director denied
on July 12, 1984. See Director's Exhibit 28 and marked as Director's Exhibits 1, 23. Following a hearing on the
merits, Administrative Law Judge Robert L. Hillyard issued a Decision and Order on June 27, 1991. Judge Hillyard
determined that claimant established the existence of pneumoconiosis in his previous claim and that employer stipulated
to the existence of pneumoconiosis arising out of coal mine employment at the hearing. Thus, Judge Hillyard found that
claimant established the existence of pneumoconiosis based on the x-ray and medical opinion evidence of record.
See Director's Exhibit 28. Judge Hillyard, however, found the evidence of record insufficient to demonstrate the
presence of a totally disabling respiratory impairment due to pneumoconiosis and denied benefits. Id. Claimant
took no further action.
Claimant filed the present, fourth claim on December 12, 1994. See Director's Exhibit 1. In a Decision
and Order issued on February 13, 1997, Administrative Law Judge Pamela Lakes Wood determined that, although employer
stipulated to the existence of pneumoconiosis arising out of coal mine employment, the newly submitted evidence was
insufficient to demonstrate the presence of a totally disabling respiratory impairment. Judge Wood, therefore, concluded,
under the standard enunciated in Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th
Cir. 1996) rev'g en banc Lisa Lee Mines v. Director, OWCP [Rutter], 57 F.3d 402, 19 BLR 2-223 (4th
Cir. 1995), cert. denied, 117 S.Ct. 763 (1997), that claimant has not established a material change in conditions.
Accordingly, benefits were denied. On appeal, the Board affirmed Judge Wood's finding that claimant failed to establish
the presence of a totally disabling respiratory impairment and had not, therefore, shown a material change in conditions.
Accordingly, the Board affirmed the administrative law judge's denial of benefits. See O'Quinn v. Big Track Coal
Co., BRB No. 97-0842 BLA (Feb. 9, 1998)(unpub.).
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4) Pursuant to the Board's instructions, the failure of a party to submit a brief within 20 days
following receipt of the Board's Order issued on May 18, 2001, would be construed as a position that the challenged
regulations will not affect the outcome of this case.
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5) The administrative law judge correctly noted that while x-rays which showed complicated
pneumoconiosis would help claimant, the new x-rays were not interpreted for complicated pneumoconiosis. See
Director's Exhibit 41; Employer's Exhibits 2, 8, 13-16.
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NOTE: This is an UNPUBLISHED BLA Document.
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