BRB No. 00-1120 BLA
ARTHUR RONDAL HELTON )
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Claimant-Petitioner )
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v. )
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GREAT WESTERN RESOURCES, ) DATE ISSUED:08/30/2001
INCORPORATED )
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and )
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UNDERWRITERS' SAFETY AND CLAIMS, )
INCORPORATED )
)
Employer/Carrier-Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits on Remand of Richard
E. Huddleston, Administrative Law Judge, United States Department of
Labor.
Mark D. Goss (Goss & Goss Attorneys), Harlan, Kentucky, for claimant.
Ronald E. Gilbertson (Ben, Boyd & Lloyd, PLLC), Washington, D.C., for
employer.
Helen H. Cox (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 McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits on Remand (96-BLA-1192) of Administrative Law Judge Richard E. Huddleston on a claim[1] 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] This case
is before the Board for the third time. In the initial Decision and Order,
Administrative Law Judge Charles W. Campbell adjudicated this claim pursuant to 20
C.F.R. Part 718 (2000), credited claimant with seventeen and one-quarter years of
qualifying coal mine employment, and found that claimant established the existence
of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R.
§§718.202(a)(1) and 718.203(b) (2000), and total disability due to
pneumoconiosis pursuant to 20 C.F.R. §718.204 (2000). Accordingly, benefits
were awarded. Director's Exhibit 37.
Pursuant to an appeal by employer, the Board affirmed Judge Campbell's
findings pursuant to 20 C.F.R. §718.204(c)(1)-(3) (2000) because they were
unchallenged on appeal, but vacated his weighing of the medical evidence under 20
C.F.R. §§718.202(a)(1), 718.204(b), and 718.204(c)(4) (2000), and
remanded the case for reconsideration of the case under those sections. Helton
v. Great Western Resources, Inc., BRB. No. 92-1114 BLA (Jun. 21, 1995)(unpub.);
Director's Exhibit 37.
On remand, the case was assigned to Administrative Law Judge Richard E.
Huddleston (administrative law judge), who, based upon the parties' agreement,
remanded the case to the district director for further development of the evidence
of record. Following the receipt of this evidence, the district director returned
the case to the administrative law judge for adjudication. Although the
administrative law judge found that claimant established the existence of
pneumoconiosis arising out of coal mine employment and total disability, he found
that claimant failed to establish total disability due to pneumoconiosis, and
accordingly, denied benefits.
Pursuant to claimant's appeal, the Board vacated the administrative law
judge's determination that claimant failed to establish that his total disability
was due to pneumoconiosis and remanded the case for further consideration of that
issue. The Board declined to address employer's arguments regarding the existence
of pneumoconiosis, however, inasmuch as they were not raised in a cross-appeal.
Helton v. Great Western Resources, Inc., BRB. No. 98-1248 BLA (Jun. 16,
1999)(unpub.).
Subsequently, employer requested en banc reconsideration of the Board's
decision. Although denying employer's request for en banc reconsideration,
the Board granted employer's request for reconsideration and, upon further
reflection, vacated the administrative law judge's finding that the x-ray and
medical opinion evidence established the existence of pneumoconiosis and remanded
the case for reconsideration of the x-ray and medical opinion evidence on that
issue. Accordingly, the Board modified its previous Decision and Order and
remanded the case for reconsideration of the evidence relevant to the existence of
pneumoconiosis in addition to disability causation. Helton v. Great Western
Resources, Inc., BRB. No. 99-1248 BLA (Feb. 17, 2000)(unpub. Order).
On remand, the administrative law judge found that neither the x-ray evidence
nor the
medical opinion evidence was sufficient to establish the existence of
pneumoconiosis. Benefits were, accordingly, denied.
On appeal, claimant argues that the administrative law judge erred in failing
to consider claimant's significant coal mine exposure history in finding that the
evidence did not establish the existence of pneumoconiosis. Employer responds,
urging affirmance of the denial. The Director, Office of Workers' Compensation
Programs (the Director), as party-in-interest, has filed a letter indicating his
intention not to participate in this appeal.
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 the 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
and Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, a claimant must establish that he suffers from
pneumoconiosis, that his pneumoconiosis arose out of coal mine employment, and that
his pneumoconiosis is totally disabling. 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).
Claimant contends, in light of his significant coal dust exposure of twenty-three years, that the administrative law judge erred in not according greater
weight to the opinions of the physicians who diagnosed the existence of
pneumoconiosis. In finding the evidence insufficient to establish the existence
of pneumoconiosis, the administrative law judge accorded greater weight to the x-ray readings of the readers who were both B-readers and Board-certified
radiologists, and greater weight to the opinions of the physicians who found the
evidence insufficient to diagnose the presence of pneumoconiosis because they were
better supported by the objective evidence than the opinions of the physicians who
diagnosed the existence of pneumoconiosis.
Contrary to claimant's contention, the length of claimant's coal mine
employment does not compel the conclusion that claimant suffers from coal worker's
pneumoconiosis. See Sahara Coal Co. v. Fitts, 39 F.3d 781, 783, 18 BLR 2-384, 2-387 (7th Cir. 1994) (occupational exposure is not evidence of
pneumoconiosis); see also Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533,
21 BLR 2-323, 2-336 (4th Cir. 1998) (length of coal mine employment does not compel
conclusion that disability is solely respiratory); Ramey v. Kentland Elkhorn
Coal Corp., 755 F.2d 485, 7 BLR 2-124 (6th Cir. 1985). We, therefore, reject
claimant's contention in this regard. Further, because claimant offers no
additional legal or factual challenge to the administrative law judge's
consideration of the evidence, we must affirm the administrative law judge's
finding that the medical evidence in the instant case is insufficient to establish
the existence of pneumoconiosis. See Cox v. Benefits Review Board,
791 F.2d 445, 446, 9 BLR 2-46, 2-49 (6th Cir. 1986); Sarf v. Director, OWCP;
10 BLR 1-119 (1987); Fish v. Director, OWCP, 6 BLR 1-107 (1983).
Consequently, because we affirm the administrative law judge's finding that
claimant has failed to establish the existence of pneumoconiosis, a requisite
element of entitlement in this Part 718 case, we must affirm the denial of
benefits. See Trent, supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order Denying
Benefits on Remand is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant is Arthur Helton, the miner, who filed his application for benefits on December 13, 1988. Director's
Exhibit 1.
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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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NOTE: This is an UNPUBLISHED BLA Document.
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