BRB No. 00-1150 BLA
DONALD R. BROCK )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
SHAMROCK COAL COMPANY )
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Robert L. Hillyard, Administrative
Law Judge, United States Department of Labor.
Donald R. Brock, Manchester, Kentucky, pro se.
Denise M. Davidson (Barrett, Haynes, May, Carter & Roark, P.S.C.),
Hazard, Kentucky, for employer.
Sarah M. Hurley (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:
Claimant appeals, without the assistance of counsel, the Decision and Order
(99-BLA-1362) of Administrative Law Judge Robert L. Hillyard denying 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 credited
claimant with nine years and nine and one-half months of coal mine employment and
found employer to be the responsible operator. Considering the evidence of record,
the administrative law judge found it sufficient to establish the existence of
pneumoconiosis arising out of coal mine employment, but insufficient to demonstrate
the presence of a totally disabling respiratory impairment. Accordingly, benefits
were denied.[2]
On appeal, claimant contends that the administrative law judge erred in
finding only nine years and nine and one-half months of coal mine employment and
erred in finding that the physicians' opinions did not establish 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),
while urging affirmance of the administrative law judge's Decision and Order as it
is supported by substantial evidence, further contends that, even though the
administrative law judge did not address the issue of abandonment, which was
identified as a contested issue, the district director properly denied this claim
by reason of abandonment due to claimant's repeated, unreasonable refusals to
submit to further medical examinations.[3]
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(2000). Failure to establish any one of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee
v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en banc); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc).
Initially, we will address claimant's assertion that the administrative law
judge erred in not crediting him with ten years of coal mine employment. Because
the administrative law judge found that the evidence established that claimant's
pneumoconiosis arose out of coal mine employment, the establishment of ten years
of coal mine employment would not further assist him in establishing entitlement.
Accordingly, error, if any, in the administrative law judge's finding regarding the
length of coal mine employment is harmless. See 20 C.F.R. §718.203(b);
Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
Turning to the issue of total disability, the administrative law judge
correctly found that the results of the two blood gas studies of record were non-qualifying, and did not, therefore, establish a totally disabling respiratory
impairment. See 20 C.F.R. §718.204(b)(ii)(2); Director's Exhibits 9,
34, 36. Likewise, the administrative law judge correctly found that because the
record did not contain evidence of cor pulmonale with right-sided congestive heart
failure, total disability could not be established on that basis. 20 C.F.R.
§718.204(b)(iii).
Regarding the pulmonary function studies, the administrative law judge
properly found all three studies to be unreliable and entitled to no weight,
Decision and Order at 11, because: the tracings of the January 11, 1979 study were
not a part of the record, and the study did not show the results of three efforts
or record an FVC result, Director's Exhibit 32; the June 10, 1991 study was found
by Dr. Baker to show less than the maximum effort required for valid results, and
the tracings of the study were not a part of the record, Director's Exhibit 9; and
the June 17, 1991 study was found invalid by Dr. Kraman due to less than optimal
effort, cooperation and comprehension by claimant,[4] Director's Exhibits 10; see Winchester v. Director, OWCP, 9 BLR
1-177 (1986); Gorman v. Hawk Contracting, Inc., 9 BLR 1-76 (1986); Estes
v. Director, OWCP, 7 BLR 1-414 (1984); Houchin v. Old Ben Coal Co., 6
BLR 1-1141 (1984); Runco v. Director, OWCP, 6 BLR 1-945 (1984). The
administrative law judge, therefore, permissibly found that the results of the
pulmonary function studies did not establish total disability, 20 C.F.R.
§718.204(b)(2)(i).
Turning to the physicians' opinions, the administrative law judge properly
determined: that Dr. Baker's opinion was undermined because the tracings for the
pulmonary function study on which he relied were not reproducible; Dr. Wheeler's
opinion did not address total disability, and the opinions of Dr. Becknell that
claimant was "minimally impaired" due to "minimal pneumoconiosis" and Dr. Ison,
that claimant was advised to avoid all damp and dusty areas due to his diagnosis
of pneumoconiosis, failed to support a finding of total disability. See
Zimmerman v. Director, OWCP, 871 F.2d 564, 12 BLR 2-254 (6th Cir. 1989);
Taylor v. Evans & Gambrel Co., Inc., 12 BLR 1-83 (1988); Gee,
supra; Hutchens v. Director, OWCP, 8 BLR 1-16 (1985); Hvizdzak v.
North American Coal Corp., 7 BLR 1-469, 1-471 (1984); Winters v. Director,
OWCP, 6 BLR 1-877, 1-881 n.4 (1984). Likewise, the administrative law judge
properly found that Dr. Bushey's note, stating claimant was totally disabled from
gainful work, was insufficient to establish a totally disabling respiratory
impairment because it was unreasoned, undocumented and unsupported by the evidence
of record. Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Mazgaj
v. Valley Camp Coal Co., 9 BLR 1-201 (1986). Accordingly, the administrative
law judge's finding that total disability was not established by the medical
opinion evidence is affirmed, see 20 C.F.R. §718.204(b)(2)(iv); see
Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195 (1986), aff'd on recon.,
9 BLR 1-236 (1987)(en banc). Further, because the administrative law judge
correctly found that total disability was not established, he properly concluded
that claimant could not establish entitlement under the Act, and it was unnecessary
to address the issue of abandonment. See Adams v. Director, OWCP, 886 F.2d
818, 13 BLR 2-52 (6th Cir. 1989); Gee, supra; see also
Larioni, supra.
Accordingly, the Decision and Order - Denial of Benefits of the administrative
law judge is affirmed.
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, 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) Because an earlier claim was filed in the 1970's, the
administrative law judge noted that the instant claim filed on April 29, 1991 was
a duplicate claim. The administrative law judge further noted, however, that even
though a previous claim had been filed, because the records relevant to that claim
were lost, he had no way of knowing when that claim was denied or the reasons for
the denial. Accordingly, the administrative law judge noted that he would consider
all the evidence of record to determine whether entitlement was established.
Decision and Order at 2, 9; see Brock v. Shamrock Coal Co., BRB No. 96-1622
BLA (July 28, 1997)(unpub.); Brock v. Shamrock Coal Co., Inc., 94-BLA-1317
(1996).
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3) Administrative Law Judge Fletcher E. Campbell issued a Decision
and Order dated August 9, 1996 in which he found: that Shamrock Coal Company was
the properly designated responsible operator; that a coal mine employment history
of nine and one-quarter years was established; that the existence of pneumoconiosis
by x-ray and medical opinion evidence was established; and that pneumoconiosis
arising out of coal mine employment was established. However, Judge Campbell found
that claimant failed to establish a totally disabling respiratory impairment.
Benefits were accordingly denied. Director's Exhibit 39. Claimant appealed. Over
the objections of claimant and employer that the record contained sufficient
evidence upon which to render a determination, the Benefits Review Board granted
the request of the Director, Office of Workers' Compensation Programs (the
Director), that the case be remanded to the district director for further
development of the evidence because the Director had not fulfilled his statutory
obligation of providing claimant with a complete, credible pulmonary examination
sufficient to substantiate the claim. The Board further held: that because the
administrative law judge failed to consider all of the evidence relevant to
claimant's coal mine employment history, the administrative law judge must
reconsider that evidence when the case was before him again, but the Board did not
address the remainder of claimant's arguments concerning the merits of entitlement.
Accordingly, the administrative law judge's Decision and Order denying benefits was
vacated and the case was remanded to the district director. Brock, BRB No.
96-1622 BLA, supra.
In the present appeal, the Director contends that the district director's
finding of abandonment is affirmable due to claimant's repeated, unreasonable
refusals to submit to medical examinations. However, in the prior appeal before
the Board the Director conceded, in his Motion to Remand, that it was not necessary
that claimant receive a new, complete pulmonary examination on remand, but that the
defect in the medical reports could be remedied by asking the doctors to provide
supplemental opinions addressing whether claimant's impairment would prevent him
from performing his usual coal mine employment, noting that it would first be
necessary to develop evidence on the physical requirements of claimant's last coal
mine job. With the exception of one form dated March 17, 1998 in which claimant
responded to the Director's questions regarding the nature of his last coal mine
employment, it does not appear that the record contains any supplementary
information showing that any physicians were requested to submit supplemental
opinions addressing claimant's ability to perform his usual coal mine employment.
Because we affirm the administrative law judge's denial of benefits in the instant
claim, however, we need not determine whether the district director properly found
the claim to be abandoned.
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4) The pulmonary function study included a notation of fair effort. Director's Exhibit 10.
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NOTE: This is an UNPUBLISHED BLA Document.
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