BRB No. 02-0160 BLA
ALVA H. PARTIN (deceased) and )
BERTHA S. PARTIN )
(Widow of ALVA H. PARTIN) )
)
Claimant-Respondent )
)
v. )
)
CANADA MOUNTAIN COAL AUGURING )
)
and )
)
OLD REPUBLIC INSURANCE COMPANY )
)
Employer/Carrier- )
Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/21/2002
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Part-in-Interest ) DECISION and ORDER
Appeal of the Decision And Order On Remand Awarding Benefits and the
Decision And Order Awarding Benefits of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
John E. Anderson (Cole, Cole, and Anderson, PSC), Barbourville,
Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
employer/carrier.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision And Order On Remand Awarding Benefits and the
Decision And Order Awarding Benefits (97-BLA-0961 and 00-BLA-0956) of
Administrative Law Judge Thomas F. Phalen on both the miner's claim and the
survivor's 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 dates of filing, the
administrative law judge adjudicated the miner's and the survivor's claims
pursuant to 20 C.F.R. Part 718. The prior history of the case is set forth in the
Board's most recent decision in Partin v. Canada Mountain Augering, BRB No.
99-1285 BLA (Oct. 27, 2000)(unpub.). In that decision, the Board reaffirmed its
prior holding affirming the administrative law judge's finding that the x-ray
evidence was sufficient to establish the existence of complicated pneumoconiosis
pursuant to Section 718.304(a), as the law of the case, citing Williams v.
Healy-Ball-Greenfield, 22 BRBS 234 (1989) and Bridges v. Director, OWCP,
6 BLR 1-988 (1984), affirmed the administrative law judge's finding that the record
was devoid of evidence which could establish complicated pneumoconiosis at Section
718.304(b), but vacated the administrative law judge's finding that the medical
opinion evidence was sufficient to support a finding of complicated pneumoconiosis
at Section 718.304(c), and therefore vacated the administrative law judge's finding
that claimant was entitled to the irrebuttable presumption of total disability due
to pneumoconiosis at Section 718.304 and remanded the case for consideration of all
relevant evidence thereunder, and, if reached, consideration of disability
causation at Section 718.204(c)(2000). Considering the relevant evidence at
Section 718.304 on remand, the administrative law judge concluded that the evidence
established the existence of complicated pneumoconiosis and that claimant was
therefore entitled to the irrebuttable presumption of total disability due to
pneumoconiosis at Section 718.304. Accordingly, benefits on the miner's claim were
awarded. Turning to the survivor's claim, which had been consolidated with the
miner's claim, the administrative law judge concluded that claimant was entitled
to benefits on her survivor's claim based on the applicability of the irrebuttable
presumption of death due to pneumoconiosis at Section 718.304. Accordingly,
benefits were awarded on the survivor's claim.
On appeal, employer contends that the administrative law judge erred in
finding that the evidence established the existence of complicated pneumoconiosis.
Claimant responds, urging affirmance of the award. The Director, Office of
Workers' Compensation Programs, has filed a letter indicating that he is not
participating 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 into the Act 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
pursuant to 20 C.F.R. Part 718, claimant must establish 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. Failure to establish any 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).
To establish entitlement to survivor's benefits, claimant must establish that
the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal
mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R.
§§718.3, 718.202, 718.203, 718.205(a); see Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990); Boyd v. Director, OWCP, 11 BLR 1-39 (1988). In survivor's claims
filed on or after January 1, 1982, death will be considered to be due to
pneumoconiosis if pneumoconiosis was the cause of the miner's death, pneumoconiosis
was a substantially contributing cause or factor leading to the miner's death,
death was caused by complications of pneumoconiosis, or the presumption, relating
to complicated pneumoconiosis, set forth at Section 718.304, is applicable. 20
C.F.R. §718.205(c)(1)-(3). Pneumoconiosis is a substantially contributing
cause of the miner's death if it hastens the miner's death. 20 C.F.R.
§718.205(c)(5); see Griffith v. Director, OWCP, 49 F.3d 184, 186 (6th
Cir. 1995); Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17 BLR 2-135
(6th Cir. 1993).
First, employer again contends that the administrative law judge erred in
concluding that the x-ray evidence supported a finding of complicated
pneumoconiosis pursuant to Section 718.304(a). In its previous decision in this
case, however, the Board held that its affirmance of the administrative law judge's
finding that the x-ray evidence of record was sufficient to establish the existence
of complicated pneumoconiosis pursuant to Section 718.304(a) constituted the law
of the case. The Board stated therein: "Inasmuch as the Board's previous finding
regarding the x-ray evidence at Section 718.304(a) was not challenged by the
employer through either a motion for reconsideration or appeal to the United States
Court of Appeals, our holding on the issue constitutes the law of the case, see
Williams v. Healy- Ball-Greenfield, 22 BRBS 234 (1989); Bridges v. Director,
OWCP, 6 BLR 1-988 (1984)." Partin at 4. Accordingly, employer's
argument concerning the x-ray evidence is rejected.
Employer next contends that the administrative law judge erred in finding that
the medical opinions establish the existence of complicated pneumoconiosis at
Section 718.304(c), and that the relevant evidence when weighed together
establishes the existence of complicated pneumoconiosis. As the Board previously
affirmed the administrative law judge's weighing of the medical opinions of Drs.
Fino, Branscomb, Baker and Velamati, we will not revisit those findings.
Williams, supra; Bridges, supra. Pursuant to the
Board's remand instructions, the administrative law judge considered the opinions
of Drs. Vuskovich and Mohan. While noting that Dr. Mohan did not mention any
respiratory disability, the administrative law judge placed little weight on his
opinion inasmuch as it was unclear from his records whether Dr. Mohan was treating
the miner for a pulmonary-related condition or whether, in spite of having seen the
miner on several occasions from October 1995 through July 1996, he had any superior
understanding of the miner's condition. Decision and Order at 4. Further, the
administrative law judge found Dr. Mohan's reports of little value as his treatment
of the miner was of limited scope and he made no mention of the miner's smoking or
employment histories. This was rational. Claimant's Exhibit 3; see Griffith
v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); cf. Wolf
Creek Collieries v. Director, OWCP [Stephens], 2002 WL 1769283 (6th Cir.).
Likewise, the administrative law judge accorded little weight to Dr. Vuskovich's
opinion as it was based on his x-ray interpretation that that x-ray did not show
complicated pneumoconiosis, which was contrary to the administrative law judge's
finding that the x-ray evidence established complicated pneumoconiosis, and Dr.
Vuskovich failed to provide any other explanations for his conclusion. This was
rational. Scott v. Mason Coal Co., 2002 WL 832020 (4th Cir. May 2, 2002);
Clark, supra. We therefore affirm the administrative law judge's
weighing of these opinions pursuant to Section 718.304(c) as it is supported by
substantial evidence and in accordance with law, and affirm the administrative law
judge's finding that, after considering all the relevant evidence, claimant
established the existence of complicated pneumoconiosis and was, therefore,
entitled to the irrebuttable presumptions of total disability and death due to
pneumoconiosis at Section 718.304. Director, OWCP v. Rowe, 710 F.2d 251,
255, 5 BLR 2-99, 2-103 (6th Cir. 1983); see Lester v. Director, OWCP, 993
F.2d 1143, 17 BLR 2-114 (4th Cir. 1993); Melnick v. Consolidation Coal Co.,
16 BLR 1-131 (1991); see also Eastern Assoc. Coal Corp. v. Director, OWCP
[Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000); Double B Mining, Inc.
v. Blankenship, 177 F.3d 240, BLR (4th Cir. 1999). The
administrative law judge's award of benefits on both the miner's and survivor's
claim is, therefore, affirmed.
Accordingly, the administrative law judge's Decision And Order On Remand
Awarding Benefits and Decision And Order Awarding Benefits are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY 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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NOTE: This is an UNPUBLISHED BLA Document.
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