BRB No. 00-1153 BLA
GARY D. FIELDS )
)
Claimant-Petitioner )
)
v. )
)
TOPPER COAL COMPANY ) DATE ISSUED:08/30/2001
)
and )
)
LIBERTY MUTUAL INSURANCE GROUP )
)
Employer/Carrier- )
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 Daniel J. Roketenetz, Administrative
Law Judge, United States Department of Labor.
William Lawrence Roberts, Pikeville, Kentucky, for claimant.
W. Barry Lewis (Lewis & Lewis Law Offices) Hazard, Kentucky, for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (99 -BLA-0832) of Administrative Law
Judge Daniel J. Roketenetz 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] Based on the filing date of August 10,1998, the administrative law
judge adjudicated this claim pursuant to 20 C.F.R. Part 718. The administrative
law judge credited claimant with twenty-two years of coal mine employment and found
employer to be the responsible operator. On the merits, the administrative law
judge found the evidence of record insufficient to establish the existence of
pneumoconiosis or total disability. Accordingly, benefits were denied.
On appeal, claimant contends that the opinion of Dr. Sundaram, claimant's
treating physician, establishes the existence of pneumoconiosis and total
disability. 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), has filed a letter
indicating that he will not 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 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).
The Board cannot undertake a de novo adjudication of the claim.
To do so would upset the carefully allocated division of power between the
administrative law judge as the trier-of-fact, and the Board as a review tribunal.
See 20 C.F.R. §802.301(a); Sarf v. Director, OWCP, 10 BLR 1-119
(1987). As we have emphasized previously, the Board's circumscribed scope of
review requires that a party challenging the Decision and Order below address that
Decision and Order and demonstrate that substantial evidence does not support the
result reached or that the Decision and Order is contrary to law. See 20
C.F.R. §802.211(b); Cox v. Director, OWCP, 791 F.2d 445, 9 BLR 2-46
(6th Cir. 1986), aff'g 7 BLR 1-610 (1984); Sarf, supra;
Slinker v. Peabody Coal Co., 6 BLR 1-465 (1983); Fish v. Director,
OWCP, 6 BLR 1-107 (1983). Unless the party identifies errors and briefs its
allegations in terms of the relevant law and evidence, the Board has no basis upon
which to review the decision. See Sarf, supra; Fish,
supra.
In the instant case, other than generally asserting that the opinion of Dr.
Sundaram is sufficient to establish the existence of pneumoconiosis and total
disability, claimant has not challenged the rationale provided by the
administrative law judge for finding the evidence of record insufficient to
establish the existence of pneumoconiosis and total disability. Claimant has
failed, therefore, to identify any errors made by the administrative law judge in
the evaluation of the evidence and applicable law, and the Board has no basis upon
which to review the decision of the administrative law judge. Cox,
supra; Sarf, supra; Slinker, supra; Fish,
supra. Moreover, the administrative law judge is not required to accord
greater weight to the opinion of a treating physician. Griffith v. Director,
OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995). Consequently, we affirm the
finding of the administrative law judge that the evidence of record was
insufficient to demonstrate the existence of pneumoconiosis or total disability.
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
To Top of Document
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.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
