BRB No. 00-1175 BLA
ALBERTA R. COMBS )
(Widow of RICHMOND COMBS) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Benefits of Robert L.
Hillyard, Administrative Law Judge, United States Department of Labor.
Alberta R. Combs, Louisville, Kentucky, pro se.
Barry H. Joyner (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
DOLDER, Administrative Appeals Judges.
PER CURIAM:
Claimant,[1] without the assistance of
counsel, appeals the Decision and Order - Denial of Benefits (99-BLA-1176)
of Administrative Law Judge Robert L. Hillyard 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] This case involves a survivor's claim
filed on June 26, 1997, which the administrative law judge properly
considered under the regulations at 20 C.F.R. Part 718. After crediting the
miner with one and one-half years of coal mine employment, the
administrative law judge noted that the instant case involved a request for
modification at the district director level. The administrative law judge
stated that he would, therefore, consider all of the evidence of record to
determine whether a mistake in a determination of fact was established
pursuant to 20 C.F.R. §725.310 (2000).[3]
The administrative law judge found the evidence insufficient to establish
that the miner suffered from pneumoconiosis pursuant to 20 C.F.R.
§718.202(a) (2000). The administrative law judge further found the
evidence insufficient to establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c) (2000) and,
accordingly, denied benefits. On appeal, claimant generally contends that
the administrative law judge erred in denying benefits. The Director,
Office of Workers' Compensation Programs, responds in support of the
decision denying benefits.
In an appeal filed by a claimant without the assistance of counsel, the
Board considers the issue to be whether the Decision and Order below is
supported by substantial evidence. Stark v. Director, OWCP, 9 BLR
1-36 (1986). We must affirm the findings of the administrative law judge
if they are supported by substantial evidence, are rational, and are in
accordance with applicable law. 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).
Inasmuch as the instant survivor's claim was filed after January 1, 1982, claimant must establish that the
miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).[4] See 20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988). Pneumoconiosis is a "substantially contributing cause" of a miner's death if
it hastens the miner's death. 20 C.F.R. §718.205(c)(5); see Brown v. Rock Creek Mining
Co., 996 F.2d 812, 17 BLR 2-135 (6th Cir. 1993).
In considering the evidence of record, the administrative law judge
correctly found that the record does not include any evidence indicating
that pneumoconiosis was a cause of the miner's death or that pneumoconiosis
hastened the miner's death in any way. 20 C.F.R. §718.205(c)(1),
(c)(2); Decision and Order and 5. The administrative law judge correctly
stated that the miner's death certificate listed respiratory failure,
chronic obstructive pulmonary disease, coronary artery disease with
congestive heart failure, and right lower lobe pneumonia as the causes of
the miner's death, but that these conditions were not linked to coal dust
exposure. Decision and Order at 5; Director's Exhibit 10. Since the
administrative law judge properly found that the record is devoid of
evidence that supports claimant's burden under Section 718.205(c) (2000),
the administrative law judge properly denied survivor's benefits.[5] 20 C.F.R. §718.205(c); Brown, supra;
Decision and Order at 5.
Accordingly, the administrative law judge's Decision and Order - Denial
of Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant is the surviving spouse of the miner, who died on December 17, 1991. Director's
Exhibit 10.
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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 instant survivor's claim was denied by the district
director on October 13, 1998. Director's Exhibit 13. Subsequently, on April
30, 1999, claimant filed a request for modification of the district
director's denial of benefits. Director's Exhibit 15. The district
director denied claimant's modification request on June 15, 1999, Director's
Exhibit 14, and the case was referred to the administrative law judge, who
held a hearing on May 18, 2000. In his Decision and Order, the
administrative law judge found that the sole ground for modification in a
survivor's claim is whether there was a mistake in a determination of fact.
Decision and Order at 4-5. The administrative law judge stated that he
would therefore consider the entire record de novo in determining
whether the evidence established entitlement. Id.
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4)Section 718.205(c) provides, in pertinent part, that death will be considered to be due
to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that pneumoconiosis was the cause of the
miner's death, or
(2) Where pneumoconiosis was a substantially contributing cause or factor leading to the miner's
death or where the death was caused by complications of pneumoconiosis, or
(3) Where the presumption set forth at §718.304 is applicable.
20 C.F.R. §718.205(c).
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5)Because there is no evidence of complicated pneumoconiosis in the record, claimant is
precluded from establishing entitlement based on the irrebuttable presumption at 20 C.F.R. §718.304.
See 20 C.F.R. §§718.205(c)(3) and 718.304.
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NOTE: This is an UNPUBLISHED BLA Document.
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