BRB No. 00-1159 BLA
LAWRENCE GRIFFITH )
)
Claimant-Petitioner )
)
v. ) )
DOMINION COAL CORPORATION )
) DATE ISSUED:08/30/2001
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 John C. Holmes, Administrative Law Judge, United States Department of Labor.
Lawrence Griffith, Raven, Virginia, pro se.
Ronald E. Gilbertson (Bell, Boyd & Lloyd, PLLC), Washington, D.C., for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel,[1] appeals the Decision and Order (00-BLA-767) of Administrative Law
Judge John C. Holmes denying modification and 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).[2] The administrative law judge properly noted that
the parties agreed to a decision on the record and that the instant claim was a
modification request of a previous denial.[3]
Decision and Order at 1-2. The administrative law judge, after noting that the
prior claims were denied because claimant failed to establish total disability,
concluded that the new medical evidence strongly confirms the previous judicial
determinations. Decision and Order at 1. Accordingly, benefits were denied. On
appeal, claimant generally challenges the denial of benefits. 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 has filed a letter indicating that he will not participate in this
appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
will consider the issue raised to be whether the Decision and Order below is
supported by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR
1-176 (1989). If the findings of fact and conclusions of law of the administrative
law judge 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).
In order to establish entitlement to benefits in a living miner's claim filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202,
718.203, 718.204; Gee v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en
banc). 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).
As the administrative law judge acknowledged, the instant case is a
modification request. When modification is requested, the relevant standard set
forth by the United States Court of Appeals for the Fourth Circuit in Jessee
v. Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993), requires that the
administrative law judge determine whether a change in conditions or a mistake of
fact has been made, even where no specific allegation has been asserted.[4] Furthermore, in determining whether the
requesting party has established modification pursuant to 20 C.F.R. §725.310
(2000), the administrative law judge is obligated to perform an independent
assessment of the newly submitted evidence, considered in conjunction with the
previously submitted evidence, to determine if the weight of the new evidence is
sufficient to establish the element or elements of entitlement which defeated
entitlement in the prior decision. Nataloni v. Director, OWCP, 17 BLR 1-82
(1993); Kovac v. BCNR Mining Corp., 14 BLR 1-156 (1990), modified on
recon., 16 BLR 1-71 (1992); Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989); O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254
(1971).
In the instant Decision and Order, the administrative law judge stated that
the matter has been thoroughly litigated and that the new medical evidence strongly
confirms the previous judicial determinations. Decision and Order at 1. The
administrative law judge then adopted the previous decisions as his own and
concluded that claimant failed to establish modification. Decision and Order at 1-2. The administrative law judge did not consider and evaluate the medical evidence
and make findings of fact and conclusions of law therefrom, but merely made an
assertion concerning the new evidence and adopted the prior decisions, contrary to
the Administrative Procedure Act, (APA) 5 U.S.C. §557(c)(3)(A), as
incorporated into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and
U.S.C. §932(a).[5] Wojtowicz v. Duquesne
Light Co., 12 BLR 1-162 (1989); Hall v. Director, OWCP, 12 BLR 1-80
(1988)(en banc); Robertson v. Alabama By-Products Corp., 7 BLR
1-793 (1985). As a result, we vacate the administrative law judge's denial of
modification and benefits and remand the case for complete consideration and
evaluation of the newly submitted and prior medical evidence and to specifically
address whether there has been a change in condition or a mistake in fact of the
prior decision. See Jessee, supra.
The administrative law judge is further instructed to independently evaluate
the evidence of record instead of adopting the prior decisions. The administrative
law judge has deprived the parties of their rights by failing to make independent
findings. Hall, supra. We note that we would not have considered the
administrative law judge to have abdicated his authority to analyze the evidence
and apply correct law, if he had cited those portions of the decisions which he had
adopted, or even included proposed findings, and cited to the record. Hall,
supra. If a decision cannot withstand scrutiny on the four corners of the
document, parties are compelled to rely on a document with which they may be
unfamiliar, and which may not be easily accessible. The result of an
administrative determination must be a timely and understandable decision available
to the parties, addressing relevant issues. Hall, supra. On remand, then the
administrative law judge must include in his Decision and Order sufficient analysis
and findings of fact to indicate that he has weighed all the relevant evidence of
record pursuant to the appropriate standards and the basis for his decision
therein. See Ridings v. C & C Coal Co., Inc., 6 BLR 1-227
(1983).
Accordingly, the administrative law judge's Decision and Order denying
modification and benefits is vacated and the case is remanded to the administrative
law judge for further consideration consistent with this decision.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)Ron Carson, a benefits counselor with Stone Mountain Health Services of Vansant, Virginia,
requested, on behalf of claimant, that the Board review the administrative law judge's decision, but Mr. Carson is not
representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88 (1995)(Order).
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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 procedural history of this case has previously been set forth in detail in the Board's prior
decision in Griffith v. Dominion Coal Corp., BRB No. 98-0531 BLA (January 5, 1999)(unpublished), which is
incorporated herein by reference.
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4)This case arises within the jurisdiction of the United States Court of Appeals for the Fourth
Circuit as the miner was employed in the coal mine industry in the Commonwealth of Virginia. See Shupe v.
Director, OWCP, 12 BLR 1-200 (1989)(en banc); Director's Exhibit 2.
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5)The Administrative Procedure Act requires each adjudicatory decision to include a statement
of "findings and conclusions, and the reasons or basis therefore, on all material issues of fact, law or discretion presented
on the record...." 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C.
§919(d) and 30 U.S.C. §932(a).
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NOTE: This is an UNPUBLISHED BLA Document.
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