BRB No. 00-1103 BLA
MARY HARRISON )
(Surviving Remarried Spouse of )
JAMES GRAVELY) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
DIRECTOR, OFFICE OF WORKERS' ) _____
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT OF )
LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of David W. DiNardi,
Administrative Law Judge, United States Department of Labor.
Mary Harrison, Hartford, Connecticut, pro se.
Dorothy L. Page (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: SMITH and DOLDER, Administrative Appeals Judges, and NELSON, Acting
Administrative Appeals Judge.
PER CURIAM:
Claimant, the miner's surviving remarried spouse,[1] appeals, without the assistance of counsel, the Decision and Order -
Denying Benefits (00-BLA-0150) of Administrative Law Judge David W. DiNardi (the
administrative law judge) on a duplicate 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).[2] The administrative law judge initially noted claimant's failure to
respond to his February 25, 2000 Show Cause Order, requiring claimant to show cause
as to why the instant survivor's claim should not be dismissed as a duplicate
survivor's claim. The administrative law judge denied the claim under 20 C.F.R.
§725.309(d) (2000) as he found that it was a duplicate survivor's claim which
does not meet the requirements for modification under 20 C.F.R. §725.310
(2000). Claimant generally appeals from the administrative law judge's Decision
and Order. The Director, Office of Workers' Compensation Programs (the Director),
responds, and seeks affirmance of the decision below. The Director also argues
that even if the Board were to reach the merits of the instant claim, the claim
must fail as there is no evidence to show that the deceased miner had
pneumoconiosis which arose out of his coal mine employment or that the miner's
death was due to pneumoconiosis.[3]
In an appeal by a claimant proceeding without the assistance of counsel, the
Board considers the issue raised 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 administrative law judge's Decision and Order if the
findings of fact and conclusions of law are supported by substantial evidence, are
rational, and are consistent with applicable law. 33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hichman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
The pertinent procedural history is as follows: In 1989, the district director
denied claimant's first claim, filed on February 3, 1989, and administratively
closed the case on January 8, 1990. Director's Exhibit 17-14. Claimant took no
further action on this claim. Claimant filed a second claim on February 8, 1991,
which the district director denied on May 6, 1991. Director's Exhibit 17-15.
Claimant took no further action on this claim. In 1993, the district director
denied claimant's third claim, filed on January 4, 1993. Director's Exhibit 17 at
1, 12. Claimant requested a hearing, but subsequently requested, by counsel, that
the case be dismissed. Director's Exhibit 17-22. By Order of Dismissal dated May
26, 1994, Administrative Law Judge Joan Huddy Rosenzweig granted claimant's
request and dismissed the case. Director's Exhibit 17-23.
Claimant filed the instant claim on May 17, 1999. Director's Exhibit 1. On
May 25, 1999, the district director denied the claim as a duplicate survivor's
claim under 20 C.F.R. §725.309(d) (2000), and indicated that the evidence did
not show that the miner had pneumoconiosis which arose out of his coal mine
employment and did not show that pneumoconiosis caused the miner's death.
Director's Exhibit 5. By letter dated June 9, 1999, the district director stated
that its previous denial remained unchanged by claimant's submission of further
information and evidence. Director's Exhibit 14. Claimant requested a hearing by
letter filed on October 27, 1999. Director's Exhibit 15.
In the Order to Show Cause and Order Postponing Hearing dated February 25,
2000, the administrative law judge indicated that during his review of the case in
preparation for the hearing, which was set for April 14, 2000, it came to his
attention that the instant duplicate claim may be barred by 20 C.F.R.
§725.309(d) (2000). The regulation at 20 C.F.R. §725.309(d) (2000)
provides in pertinent part:
If an earlier survivor's claim filed under this part has been finally
denied, the new claim failed under this part shall also be denied unless
the [district director] determines that the later claim is a request for
modification and the requirements of [20 C.F.R.] §725.310 [(2000)]
are met.
20 C.F.R. §725.309(d) (2000).[4] The
administrative law judge indicated that since the instant claim was filed more than
one year after Administrative Law Judge Rosenzweig's 1994 Order of Dismissal,
claimant "might not have had the right to file her current claim." Order to Show
Cause and Order Postponing the Hearing at 2. The administrative law judge thus
ordered claimant to show cause as to why the instant survivor's claim should not
be dismissed. Claimant did not respond to the Show Cause Order.
In his Decision and Order - Denying Benefits, which is the subject of the
instant appeal, the administrative law judge initially reviewed the procedural
history of the case. He then discussed claimant's failure to respond to the Show
Cause Order, requiring claimant to show cause as to why the instant claim should
not be dismissed as a duplicate survivor's claim under 20 C.F.R. §725.309(d)
(2000). The administrative law judge thus found that claimant failed to show good
cause as to why this claim should not be dismissed, in light of the fact that it
was filed more than one year after Administrative Law Judge Rosenzweig's 1994 Order
of Dismissal. Accordingly, the administrative law judge dismissed the claim and
denied claimant's application for benefits. Decision and Order - Denying Benefits
at 2.
We affirm the administrative law judge's denial of the instant claim as it is
rational, supported by substantial evidence and in accordance with law. Survivors
are barred from filing duplicate claims beyond the one year period provided for
modification. Specifically, under 20 C.F.R. §725.309 (c) and (d) (2000) if
an earlier survivor's claim is finally denied, a subsequent survivor's claim must
also be denied based on the prior denial unless claimant's subsequent claim is
considered to be a motion for modification which satisfies the requirements of 20
C.F.R. §725.310 (2000). Watts v. Peabody Coal Co., 17 BLR 1-68 1992);
Mack v. Matoaka Kitchekan Fuel, 12 BLR 1-197 (1989); see Clark v.
Director, OWCP, 9 BLR 1-205 (1986), rev'd on other grounds, Clark v.
Director, OWCP, 838 F.2d 197, 11 BLR 2-46 (6th Cir. 1988). The administrative
law judge properly determined that the instant claim must be denied as a duplicate
survivor's claim as it does not meet the requirements for modification.
Specifically, claimant filed the instant survivor's claim on May 17, 1999, more
than one year after the Order of Dismissal of Administrative Law Judge Rosenzweig
which dismissed claimant's earlier claim. Director's Exhibits 1, 17-23.[5] Moreover, we hold that the administrative law
judge acted within his discretion in dismissing the instant claim in light of
claimant's failure to respond to his Show Cause Order. 20 C.F.R.
§725.465(a)(2), (c) (2000).[6] We,
therefore, affirm the administrative law judge's denial of the instant claim for
survivor's benefits under 20 C.F.R. §725.309(d) (2000).
Accordingly, the administrative law judge's Decision and Order - 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)Claimant was married to James Gravely, the miner, from 1928
until his death in 1953. Director's Exhibits 3, 4. Claimant was married to Claude
McCray from 1965 until his death in 1982. Director's Exhibits 10, 11. Claimant
was married to John Harrison from 1984 until his death in 1989. Director's
Exhibits 12, 13.
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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 only medical evidence relating to the miner is his death
certificate, which indicates that the miner died due to chronic cor pulmonale due
to undetermined causes. Director's Exhibit 4.
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4)The amendments to the regulation at 20 C.F.R. §725.309
(2000) do not apply to claims, such as the instant claim, which were pending on
January 19, 2001. See 20 C.F.R. §725.2, 65 Fed. Reg. 80,057.
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5)We note that the Director, Office of Workers' Compensation
Programs, has relied on the duplicate survivor's claims regulations at each stage
of the adjudication of the instant claim. Director's Exhibits 5, 14, 18; cf.
Jordan v. Director, OWCP, 892 F.2d 482, 13 BLR 2-184 (6th Cir. 1989).
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6)The revised regulation at 20 C.F.R. §725.465 does not
apply to claims, such as the instant claim, which were pending on January 19, 2001.
See 20 C.F.R. §725.2, 65 Fed. Reg. 80,057. The specific regulations
at subsections 725.465(a)(2) and (c) have not been revised.
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NOTE: This is an UNPUBLISHED BLA Document.
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