BRB No. 01-0948 BLA
NICHOLAS A. RICHTSCHEIT )
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Claimant-Petitioner )
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v. )
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MUSTANG COAL & CONTRACTING )
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and )
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ROCKWOOD INSURANCE COMPANY )
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Employer/Carrier- )
Respondents ) DATE ISSUED:08/22/2002
)
)
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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-Denying Benefits of Daniel L.
Leland, Administrative Law Judge, United States Department of
Labor.
Ronald E. Archer , Houtzdale, Pennsylvania, for claimant.
Sean B. Epstein (Pietragallo, Bosick & Gordon), Pittsburgh,
Pennsylvania, for employer.
Before: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order-Denying Benefits (2000-BLA-0857)
of Administrative Law Judge Daniel L. Leland 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 miner filed a claim for benefits on
May 3, 1973, which was administratively denied by the district director on
January 29, 1980. On August 1, 1989, claimant filed a second claim for
benefits. The district direct denied this claim as well. Thereafter,
claimant filed a motion for modification, which was denied on January 23,
1991. On November 30, 1999, the instant claim was filed.[2] After conducting a hearing, and
evaluating all of the evidence of record, the administrative law judge found
that the x-ray and medical opinion evidence submitted in this case was
insufficient to establish the presence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a)(1) and (a)(4).[3]
Thus, the administrative law judge found that claimant failed to establish
an essential element of entitlement. Accordingly, the administrative law
judge denied benefits.
Claimant appeals, asserting that the administrative law judge erred in
failing to find that the one positive x-ray interpretation of record, and
the medical reports of Drs. Bizousky and McLane, establish the presence of
pneumoconiosis. The employer responds, urging affirmance of the Decision
and Order denying benefits as supported by substantial evidence. The Director, Office of Workers' Compensation Programs, has filed a
statement that he will not participate in this appeal.
The Board's scope of review is defined by statute. We must affirm the
administrative law judge's Decision and Order if the findings of fact and
the conclusions of law are rational, supported by substantial evidence, and
in accordance with the law. 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).
To be entitled to benefits under Part 718, claimant must establish total
respiratory disability due to pneumoconiosis arising out of coal mine
employment. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204;
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc). Failure to prove any one of
these elements precludes entitlement.
The administrative law judge concluded that the preponderance of the x-ray evidence failed to establish the presence of pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(1). In assessing the medical report evidence,
the administrative law judge declined to credit the opinions of Drs.
Bizousky and McLane that claimant suffers from chronic obstructive pulmonary
disease arising out of coal mine employment. Instead, he determined that
the opinions of Drs. Fino and Solic, that claimant does not suffer from a
respiratory impairment related to his coal dust exposure, were the most
credible opinions of record. Decision and Order at 7. Therefore, the
administrative law judge held that claimant failed to establish the presence
of pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(4). Id.
On appeal, claimant asserts that the evidence of record establishes the
presence of pneumoconiosis by x-ray, as well as by medical report evidence.
In evaluating the x-ray evidence of record, the administrative law judge
found that the preponderance of this evidence failed to establish the
presence of pneumoconiosis at Section 718.202(a)(1). Decision and Order at
6. Beyond asserting that a single positive x-ray interpretation of record
shows the presence of pneumoconiosis, claimant's brief does not set out any
argument alleging error by the administrative law judge in the weighing of
the x-ray evidence. Inasmuch as claimant has failed to allege specific
error in the weighing of the x-ray evidence, we decline to disturb the
administrative law judge's finding. See Fish v. Director, OWCP, 6
BLR 1-107 (1983). Thus, we affirm the administrative law judge's finding
that the x-ray evidence of record failed to establish the presence of
pneumoconiosis.[4]
With respect to the medical opinion evidence at Section
718.202(a)(4), claimant first asserts that the administrative law judge
confused the determination as to the presence of pneumoconiosis with the
question of whether claimant's impairment arose out of coal mine
employment. We disagree. Given that none of the physicians of record
stated unequivocally that claimant suffers from coal workers'
pneumoconiosis, the administrative law judge was required to make an
assessment as to whether any of the other respiratory or pulmonary
impairments diagnosed by the physicians meets the legal definition of
pneumoconiosis set forth at 20 C.F.R. §718.201(a). By definition, a
respiratory or pulmonary impairment can establish the presence of legal
pneumoconiosis only if it meets the statutory requirement that it has
arisen out of coal mine employment. 20 C.F.R. §718.201; Pavesi
v. Director, OWCP, 758 F.2d 956, 964-965, 7 BLR 2-184, 2-198 (3d Cir.
1985); Crow v. Peabody Coal Co., 11 BLR 1-54, 1-56 (1988);
Biggs v. Consolidation Coal Co., 8 BLR 1-1-317, 1-322 (1985).
Thus, in assessing whether "pneumoconiosis", as defined under the
Act, was present, the administrative law judge properly considered
whether claimant's diagnosed pulmonary impairments arose out of coal mine
employment.
Claimant further asserts that the administrative law judge erred in
declining to credit the diagnoses of chronic obstructive pulmonary
disease by Drs. Bizousky and McLane as diagnoses of pneumoconiosis under
the Act. Based on a smoking history of three years, Dr. Bizousky
initially diagnosed chronic obstructive pulmonary disease arising from
coal dust exposure. He noted that smoking was a minor contributing
factor, given the miner's limited smoking history. Director's Exhibit 10.
After learning about the miner's true smoking history of one-half pack of
cigarettes per day for forty years, the doctor revised his opinion to
state that coal dust exposure "contributed to a portion of [the miner's]
present day lung impairment." Director's Exhibit 12. Based on a smoking
history of two to three years, Dr. McLane diagnosed chronic obstructive
pulmonary disease and chronic bronchitis due to "cigarette smoking" and
"industrial dust exposure." Director's Exhibit 69. The administrative
law judge rejected both of these opinions, finding that neither physician
adequately explained why he found that the miner's symptoms were due to
coal dust exposure, rather than cigarette smoking. Despite the fact
that Dr. Bizousky subsequently acknowledged a far greater smoking history
than the three-year history noted in his original report, the
administrative law judge properly held that he failed to explain why the
symptoms of claimant's impairment were "necessarily related to coal dust
exposure rather than due solely to cigarette smoking." Decision and Order
at 6. Likewise, with respect to Dr. McLane's opinion, the administrative
law judge properly determined that the doctor failed to explain his
conclusion as to the etiology of claimant's impairment, and that the
opinion was therefore unreasoned. An administrative law judge may
require a medical opinion to state in clear and definite terms the
etiology of the miner's impairment. See generally Brazzalle v.
Director, OWCP, 803 F.2d 934, 9 BLR 2-133, 2-137 (8th Cir.
1986). Thus, we hold that the administrative law judge did not err in
rejecting the opinions of Drs. Bizousky and McLane. See generally
Gilliam v. G&O Coal Co., 7 BLR 1-59 (1984). Furthermore, the
administrative law judge properly accorded greater weight to the opinions
offered by Drs. Fino and Solic, that claimant does not suffer from any
respiratory or pulmonary impairment arising out of coal dust exposure, in
that these physicians are both Board-certified in pulmonary diseases,
while Dr. Bizousky is a family practice physician and Dr. McLane's
qualifications are not in the record. See Scott v. Mason Coal Co.,
14 BLR 1-37 (19900(en banc), rev'd on other grounds, 60
F.3d 1138 (4th Cir. 1995); McMath v. Director, OWCP, 12 BLR 1-6
(1988). Thus, we affirm the administrative law judge's finding that
claimant failed to establish the existence of pneumoconiosis at Section
718.202(a)(4).
Inasmuch as we affirm the administrative law judge's finding that
claimant has failed to establish the presence of pneumoconiosis at
Section 718.202(a)(1)-(a)(4), an essential element of entitlement, a
finding of entitlement is precluded. Penn Allegheny Coal Co. v.
Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997); Trent,
supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order
denying benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETY JEAN HALL
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 20 C.F.R. Parts 718, 722, 725, and 726 (2001). All citations to
the regulations, unless otherwise noted, refer to the amended
regulations.
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2) In this claim, employer has conceded that the evidence
establishes that claimant is now totally disabled. See Hearing
Transcript at 5. Therefore, the administrative law judge properly
held that the evidence established a material change in conditions
pursuant to Section 725.309(d)(2000), and that claimant was thus entitled
to review of all of the evidence of record. See Labelle Processing
Co., v. Swarrow, 72 F. 3d 308, 20 BLR 2-76 (3d Cir. 1995).
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3) Based on the employer's stipulation, the administrative
law judge credited claimant with 38.84 years of coal mine employment.
Decision and Order at 2. The administrative law judge found that the
evidence establishes a smoking history of one-half pack of cigarettes per
day for forty years. Decision and Order at 6 n.3. This finding is not
challenged on appeal, and therefore, it is affirmed. See Skrack v.
Island Creek Coal Co., 6 BLR 1-710 (1983).
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4) The administrative law judge properly noted that there
is no biopsy evidence in the record of this case. Decision and Order at
6. See 20 C.F.R. §718.202(a)(2). The administrative law
judge also properly found that none of the presumptions at 20 C.F.R.
§718.202(a)(3) was applicable to the instant case. Decision and
Order at 6. On appeal, claimant does not challenge these findings, and
therefore, we affirm them. See Skrack v. Island Creek Coal Co., 6
BLR 1-710 (1983).
NOTE: This is an UNPUBLISHED BLA Document.
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