BRB No. 00-1099 BLA
NELDA A. ATKINS
(Widow of WILLIAM R. ATKINS)
Claimant-Petitioner
v.
BETHENERGY MINES, INCORPORATED
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
)
)
)
)
)
) DATE
ISSUED:08/30/2001
)
)
)
)
)
)
)
)
) DECISION AND ORDER
Appeal of the Decision and Order Denying Benefits of Richard A.
Morgan, Administrative Law Judge, United States Department of
Labor.
Nelda A. Atkins, Orgas, West Virginia, pro se.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West
Virginia, for employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative
Appeals Judge.
PER CURIAM:
Claimant,[1] without the
assistance of counsel,[2] appeals the
Decision and Order
Denying Benefits (98-BLA-1183) of Administrative Law Judge Richard A.
Morgan 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).[3] The administrative law judge credited the miner with
eighteen years of coal mine employment and adjudicated this claim
pursuant to 20 C.F.R. Part 718, based on claimant's July 7, 1997 filing
of her survivor's claim. Addressing the merits of entitlement, the
administrative law judge found the evidence of record supports
employer's concession of the existence of simple pneumoconiosis pursuant
to 20 C.F.R. §718.202(a) (2000). The administrative law judge
further found that the evidence of record did not rebut the presumption
that the miner's pneumoconiosis arose out of his coal mine employment
pursuant to 20 C.F.R. §718.203(b) (2000). However, the
administrative law judge found the medical evidence of record
insufficient to establish the existence of complicated pneumoconiosis
pursuant to 20 C.F.R. §718.304 (2000). The administrative law
judge also found the evidence insufficient to establish that the miner's
death was due to pneumoconiosis or that pneumoconiosis was a
substantially contributing cause of the miner's death pursuant to 20
C.F.R. §718.205(c) (2000). Accordingly, the administrative law
judge denied this survivor's claim. In response to claimant's appeal,
employer urges affirmance of the administrative law judge's denial of
benefits as supported by substantial evidence. The Director, Office of
Workers' Compensation Programs, has filed a letter stating that he will
not file a response brief in this appeal.[4]
In an appeal filed by a claimant without the assistance of counsel,
the Board will consider the issue raised to be whether the Decision and
Order below is supported by substantial evidence. McFall v. Jewell
Ridge Coal Corp., 12 BLR 1-176 (1989). If the findings of fact and
conclusions of law of the administrative law judge 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 by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965).
Benefits are payable on a survivor's claim filed on or after
January 1, 1982 only when claimant meets her burden of establishing that
the miner's death was due to pneumoconiosis arising out of coal mine
employment and where pneumoconiosis was a substantially contributing
cause of death or where complicated pneumoconiosis is established. 20
C.F.R. §§718.201, 718.202, 718.203, 718.205(c); Trumbo v.
Reading Anthracite Co., 17 BLR 1-85 (1993); Sumner v. Blue
Diamond Coal Co., 12 BLR 1-74 (1988); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988). Pneumoconiosis is a "substantially
contributing cause" of a miner's death if it hastens the miner's death.
65 Fed. Reg. 80,050 (2000)(to be codified at 20 C.F.R.
§718.205(c)(5)); Shuff v. Cedar Coal Co., 967 F.2d 977, 16
BLR 2-90 (4th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993).
After consideration of the administrative law judge's Decision and
Order and the relevant evidence of record, we conclude that substantial
evidence supports the administrative law judge's findings that the
miner's death was not due to pneumoconiosis pursuant to Section
718.205(c) (2000). The administrative law judge considered all of the
medical evidence of record regarding the cause of the miner's death,
including the death certificate, autopsy report, objective evidence and
medical reports reviewing this evidence. Decision and Order at 9-15;
Director's Exhibits 7-9; Claimant's Exhibits 1, 2; Employer's Exhibits
1-16. After weighing the relevant evidence of record, the
administrative law judge permissibly found that the evidence was
insufficient to establish that the miner's death was due to
pneumoconiosis pursuant to Section 718.205(c)(1) (2000). The
administrative law judge rationally found that the death certificate,
which stated that the immediate cause of the miner's death was
respiratory failure due to lung cancer with metastases, did not support
a finding that the miner's death was due to pneumoconiosis.[5] Director's Exhibit 7. In addition,
the administrative law judge correctly determined that none of the
physicians of record opined that the miner's death was due to
pneumoconiosis, but rather, that the cause of the miner's death was his
cancer with metastases. Decision and Order at 19; Director's Exhibits
8, 9; Claimant's Exhibits 1, 2; Employer's Exhibits 1-16; 20 C.F.R.
§718.205(c)(1) (2000). Consequently, we affirm the administrative
law judge's finding that claimant failed to establish that the miner's
death was due to pneumoconiosis. See Addison v. Director,
OWCP, 11 BLR 1-68 (1988).
In addition, we affirm the administrative law judge's finding that
the weight of the medical evidence of record is insufficient to
establish the existence of complicated pneumoconiosis pursuant to
Section 718.304 (2000). As the administrative law judge correctly
found, the sole evidence supportive of a diagnosis of complicated
pneumoconiosis is the January 18, 1998 medical report of Dr. Naeye,
wherein the physician stated that there were lesions present large
enough to qualify as progressive massive fibrosis (PMF), but whether
they truly were PMF depended on their location. In his report, Dr.
Naeye further stated that if all of the lesions were in the lymph nodes,
PMF was absent and the diagnosis of the remaining pulmonary lesions
would be mild simple coal workers' pneumoconiosis. Director's Exhibit
9; Claimant's Exhibit 2. Following the review of additional medical
records in subsequent reports, including chest x-rays, pulmonary
function study evidence and medical reports, Dr. Naeye revised his
opinion, stating that complicated pneumoconiosis was not present, but
rather, that the miner was suffering from mild, simple coal workers'
pneumoconiosis, which played no role in the miner's disability during
his lifetime nor any role in his death. Employer's Exhibits 6, 9, 14.
Within a reasonable exercise of his discretion, the administrative law
judge credited the later reports of Dr. Naeye, that complicated
pneumoconiosis was not present, based on his review of additional
material. Decision and Order at 19; compare Director's Exhibit
9, Claimant's Exhibit 2 with Employer's Exhibits 6, 9, 14; see
Cochran v. Consolidation Coal Co., 16 BLR 1-101 (1992); see
generally Hunley v. Director, OWCP, 8 BLR 1-323 (1985);
Hopton v. United States Steel Corp., 7 BLR 1-12 (1984). Inasmuch
as the administrative law judge properly found that the record contains
no other evidence supportive of a finding of complicated pneumoconiosis,
we affirm his finding that claimant has not established the existence of
complicated pneumoconiosis and, thus does not invoke the irrebuttable
presumption of death due to pneumoconiosis.[6] Decision and Order at 19; 20 C.F.R. §§718.304,
718.205(c)(3) (2000); see generally Sumner v. Blue Diamond
Coal Corp., 12 BLR 1-74 (1988).
The administrative law judge also reasonably found that the
evidence of record is insufficient to establish that pneumoconiosis was
a substantially contributing cause of the miner's death or that the
miner's death was hastened by pneumoconiosis. As the administrative law
judge properly found, the only evidence supportive of a finding that
pneumoconiosis was a substantially contributing cause of the miner's
death was the January 1998 medical report of Dr. Naeye, wherein the
physician opined that coal workers' pneumoconiosis contributed to the
miner's death in that he would have lived longer had coal workers'
pneumoconiosis been absent. Director's Exhibit 9; Claimant's Exhibit 2.
However, as the administrative law judge found, Dr. Naeye revised his
opinion upon review of additional evidence of record, stating that coal
workers' pneumoconiosis played no role in the miner's death. Decision
and Order at 21; Employer's Exhibits 6, 9, 14. The administrative law
judge further found that no other physician "stated that CWP, as defined
by the Act and regulations, caused, contributed to or hastened his death
in any manner." Decision and Order at 21; see Director's
Exhibits 7-9; Claimant's Exhibits 1-2; Employer's Exhibits 1-16.
Inasmuch as the administrative law judge considered all of the relevant
evidence of record and properly found that none of the physicians of
record opined that pneumoconiosis contributed to or hastened the miner's
death, we affirm his finding that claimant failed to establish, by a
preponderance of the evidence, that pneumoconiosis was a substantially
contributing cause of the miner's death. Decision and Order at 21; 20
C.F.R. §718.205(c)(2), (2000); Shuff, supra; see also
Trumbo, supra; Neeley, supra.
Inasmuch as claimant has failed to establish that the miner's death
was due to pneumoconiosis, a requisite element of entitlement in a
survivor's claim pursuant to 20 C.F.R. Part 718, entitlement thereunder
is precluded. See Shuff, supra; Trumbo,
supra.
Accordingly, the administrative law judge's Decision and Order
Denying Benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1) Claimant is the widow of the miner, William R. Atkins, who died on April 7,
1997. Director's Exhibit 7. The miner filed his initial application for benefits on December 22, 1983,
the denial of which was affirmed by the Board in a decision issued February 19, 1991. Atkins v.
Bethlehem Mines Corp., BRB No. 89-1675 BLA (Feb. 19, 1991)(unpub.); Director's Exhibit 20 at
DX 1, DX 65. The miner filed a request for modification with the Department of Labor, the denial of
which was affirmed by the Board on February 27, 1996, holding that the administrative law judge
reasonably found that the miner failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a). Atkins v. Bethenergy Mines, Inc., BRB No. 95-1504 BLA (Feb. 27,
1996)(unpub.); Director's Exhibit 20. Claimant filed her survivor's claim on July 7, 1997, Director's
Exhibit 1, and the survivor's claim is the only claim presently before the Board.
Back to Text
2) Claimant was not represented by counsel at the hearing before the
administrative law judge. The administrative law judge, however, questioned claimant regarding her
intention to proceed without an attorney, and afforded her the opportunity to submit evidence on her own
behalf, testify, provide statements and question witnesses. Consequently, there was a valid waiver of
claimant's right to representation and the hearing before the administrative law judge was properly
conducted. 20 C.F.R. §725.362(b) (2000); Shapell v. Director, OWCP, 7 BLR 1-304
(1984).
Back to Text
3) 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). 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).
Back to Text
4) The parties do not challenge the administrative law judge's decision to credit
the miner with eighteen years of coal mine employment, his determination that Bethenergy Mines, Inc. is
the responsible operator, or his findings under 20 C.F.R. §§718.202(a) and 718.203(b)
(2000). Inasmuch as these findings are not adverse to claimant, they are affirmed. See
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
Back to Text
5) The record also contains the autopsy report by Dr. Carrington, which included
findings on gross and microscopic examination of history of small cell carcinoma in the lymph nodes,
bilateral chronic pneumonia, bilateral pulmonary edema and congestion, bilateral focal fibrosis,
anthracosilicosis of lymph nodes (paratracheal) and hyalinized old granulomata. Dr. Carrington also
provided a clinical diagnosis of respiratory failure secondary to non-small cell lung carcinoma with
metastases, but did not otherwise provide an opinion as to the cause of death. Director's Exhibit 8;
Claimant's Exhibit 1.
Back to Text
6) The administrative law judge also found that there was no evidence of
complicated pneumoconiosis submitted in connection with the miner's claim, a finding affirmed by the
Board in its February 27, 1996 Decision and Order. Decision and Order at 19; see
Bethenergy Mines, Inc., BRB No. 95-1504 BLA, slip op. at 3, n.1 (Feb. 27, 1996)
(unpub.).
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
