BRB No. 00-1127 BLA
FRANK J. SAMULEVICH )
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Claimant-Respondent )
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v. ) DATE ISSUED:08/30/2001
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SILVERBROOK ANTHRACITE, INC. )
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and )
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CONSTITUTION STATE SVCS., CO. )
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Employer/Carrier- )
Petitioners )
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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 Awarding Benefits of Robert D. Kaplan,
Administrative Law Judge, United States Department of Labor.
Maureen Herron and A. Judd Woytek (Marshall, Dennehey, Warner, Coleman
& Goggin), Bethlehem, Pennsylvania, for employer.
Edward Waldman (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: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (2000-BLA-00307) of Administrative
Law Judge Robert D. Kaplan awarding benefits on a 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 adjudicated this duplicate claim
pursuant to 20 C.F.R. Part 718 (2000).[2] The
administrative law judge accepted employer's stipulation that claimant had
eighteen and one-half years of coal mine employment and suffers from pneumoconiosis
arising out of coal mine employment and a totally disabling respiratory impairment
pursuant to 20 C.F.R. §§718.204(a), 718.203(c) and 718.204(c) (2000) and
thus that a material change in conditions was established pursuant to 20 C.F.R.
§725.309(d) (2000). The administrative law judge further found, based on the
evidence submitted subsequent to the previous denial and on his review of all of
the evidence in the record, that claimant was totally disabled due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b) (2000). Accordingly,
benefits were awarded. On appeal, employer contends that the administrative law
judge erred in his determination that claimant is totally disabled due to
pneumoconiosis pursuant to Section 718.204(b) (2000).[3] Claimant has not filed a response brief and the Director, Office of
Workers' Compensation Programs (the Director), has not filed a brief on the merits
of 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 applicable law, they are binding
upon the 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).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish 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 of claimant to establish any 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).
Employer contends that the administrative law judge erred in finding that the
evidence was sufficient to establish total disability due to pneumoconiosis at 20
C.F.R. §718.204(b) (2000). We agree. The United States Court of Appeals for
the Third Circuit, within whose jurisdiction this case arises, has held that to
establish total disability due to pneumoconiosis pursuant to Section 718.204
(2000), claimant must prove the causal connection of pneumoconiosis and total
disability by showing that the disease is a "substantial contributor" to the
disability. Bonessa v. United States Steel Corp., 884 F.2d 726, 13 BLR 2-23
(3d Cir. 1989).
In the instant case, the administrative law judge considered the medical
reports of Drs. Talati, Sahillioglu, Wolanin, Stienmetz, Naeye, Levinson, Shane and
Katlic. Decision and Order at 4-6; Director's Exhibits 7, 20-21, 23, 24B, 25, 35,
46-47; Claimant's Exhibits 1-2; Employer's Exhibit 2. The administrative law judge
found that Drs. Talati, Sahillioglu, Wolanin, Stienmetz, Naeye, Levinson and Shane
either did not address the issue or opined that claimant's impairment was not due
to pneumoconiosis. Decision and Order at 6. The administrative law judge,
however, found that claimant established he was totally disabled due to
pneumoconiosis by according greater weight to the opinion of Dr. Katlic as
claimant's treating physician. Decision and Order at 6. The administrative law
judge specifically stated:
As I noted at the hearing, Dr. Katlic's reports upon which Claimant
relies, are far from crystal clear regarding the causation question.
(Transcript 28-33). Upon further reflection, I find that the physician's
statements are clear enough to determine that he was of the opinion that
Claimant's pneumoconiosis was serious, and so serious as to be a
substantial contributor to his total pulmonary disability that was
primarily due to the lung cancer. In his first letter, Dr. Katlic was
explicit in stating that Claimant's lungs were jet black in color ...
with anthracotic nodules surrounded by interstitial chronic inflammation
and fibrosis." In his second letter, the physician reiterated the jet
black" color of the right lung due to exposure to coal dust." Although
it might be argued that Dr. Katlic's statements go to the issue of the
presence of pneumoconiosis, I infer that he intended to convey the
opinion that Claimant's pneumoconiosis was a substantial contributor to
his pulmonary impairment. The physician's final statement that Claimant
has severe lung disease from which he is totally disabled" bolsters this
conclusion.
Decision and Order at 6.
A review of the record indicates that Dr. Katlic, who treated claimant for
lung cancer, diagnosed pneumoconiosis and also opined that claimant "clearly has
severe lung disease from which he is totally disabled." Decision and Order at 4-5;
Claimant's Exhibits 1-2. While an administrative law judge is charged with the
evaluation and weighing of the medical evidence and may draw appropriate inference,
therefrom, see Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 9
BLR 2-1 (3d Cir. 1986), the administrative law judge's inference, in this case,
that Dr. Katlic "intended to convey the opinion" that claimant's pneumoconiosis was
a substantial contributor to his totally disabling respiratory impairment, is not
supported by the evidence of record. Decision and Order at 6; Claimant's Exhibits
1, 2.
Employer correctly argues that the administrative law judge's conclusion
regarding Dr. Katlic's opinion is speculative and mischaracterizes the evidence.
Contrary to the administrative law judge's finding, Dr. Katlic did not specifically
express an opinion that claimant's pneumoconiosis is a substantial contributor to
his totally disabling respiratory impairment. Claimant's Exhibits 1-2. Therefore,
Dr. Katlic's opinion is insufficient as a matter of law to establish the causal
connection that claimant's total disability was due to his pneumoconiosis.
Moreover, given this record, the administrative law judge's finding, "that the
medical evidence as a whole establishes that pneumoconiosis was a substantial
contributor to Claimant's total disability," is not supported by substantial
evidence. Marcum v. Director, OWCP, 11 BLR 1-23 (1987); Decision and Order
at 13.
Furthermore, inasmuch as we have determined that the only evidence relied on
by claimant to establish total disability due to pneumoconiosis is insufficient to
meet claimant's burden of proof, we must reverse the administrative law judge's
award of benefits.
Accordingly, the Decision and Order of the administrative law judge awarding
benefits is reversed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
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. 80,045-80,107 (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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2) Claimant filed his initial claim for black lung benefits on
July 6, 1978, which was denied by the district director on March 28, 1979.
Claimant filed his second claim for benefits on June 16, 1980, which was denied by
the district director on September 5, 1980. Claimant filed his third claim for
benefits on June 10, 1981, which was denied by the district director on July 23,
1981. Claimant filed his fourth claim for benefits on May 24, 1982, which was
denied by the district director on October 13, 1982 and October 3, 1983. These
claims were subsequently denied by Administrative Law Judge Paul H. Teitler and the
decision was ultimately affirmed by the Board. Samulevich v. Silverbrook
Anthracite, Inc., BRB No. 88-165 BLA (June 30, 1989)(unpub.); Director's
Exhibit 41. Claimant filed his fifth claim for benefits on August 31, 1990, which
was denied by the district director on November 27, 1990. Director's Exhibit 42.
Claimant filed his sixth claim for benefits on December 5, 1991, which was denied
by the district director on February 25, 1992. Director's Exhibit 43. Claimant
filed his seventh claim for benefits on March 5, 1993, which was denied by the
district director in an undated letter. Director's Exhibit 44. Claimant filed his
eighth claim for benefits on June 6 , 1994, which was denied by the district
director on October 20, 1994. Director's Exhibit 45. Claimant filed his ninth
claim for benefits on October 27, 1995, which was denied by the district director
on February 20, 1996. Director's Exhibit 46. Claimant filed his tenth claim for
benefits on March 6, 1997, which was denied by the district director on April 23,
1997. Director's Exhibit 47. No further action was taken on these claims. The
instant claim was filed on May 4, 1998. Director's Exhibit 1.
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3) The administrative law judge's finding that claimant
established the existence of pneumoconiosis arising out of coal mine employment
pursuant to 20 C.F.R. §§718.202(a), 718.203(b) (2000) and total
disability pursuant to 20 C.F.R. §718.204(c) (2000) are unchallenged on appeal
and are therefore affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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