BRB No. 02-0196 BLA
PAUL MARK SPURLOCK )
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Claimant-Petitioner )
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v. )
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NEW HORIZONS COAL, INCORPORATED ) DATE ISSUED:08/23/2002
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and )
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HARTFORD ACCIDENT AND INDEMNITY )
COMPANY )
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Employer/Carrier- )
Respondents )
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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 on Remand of Robert L. Hillyard,
Administrative Law Judge, United States Department of Labor.
Paul Mark Spurlock, Grays Knob, Kentucky.
David L. Murphy (Clark, Ward & Cave), Louisville, Kentucky, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH, and HALL, Administrative Appeals
Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order on Remand (99-BLA-0717) of
Administrative Law Judge Robert L. Hillyard 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] This is the second time that this case is before the
Board. The Board previously affirmed the administrative law judge's findings of
twenty-three years of coal mine employment, the existence of pneumoconiosis arising
out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), (a)(4)
(2000), 718.203(b) (2000), and that the evidence is insufficient to establish
invocation of the irrebuttable presumption of total disability due to
pneumoconiosis pursuant to 20 C.F.R. §718.304 (2000), or total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(3)(2000). Spurlock v. New Horizons
Coal, Inc., BRB No. 00-0802 BLA (May 23, 2001) (unpublished). However, the
Board vacated the administrative law judge's finding that the medical opinion
evidence is insufficient to establish total disability pursuant to 20 C.F.R.
§718.204(c)(4) (2000) and remanded the case for a comparison of Dr. Baker's
opinion with the exertional requirements of claimant's usual coal mine
employment.[2] On remand, the administrative law
judge found Dr. Baker's medical opinion insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(b)(2)(iv).[3]
Accordingly, the administrative law judge denied benefits. On appeal, claimant
generally challenges the administrative law judge's denial of benefits. Employer
responds, urging affirmance of the administrative law judge's Decision and Order.
The Director, Office of Workers' Compensation Programs, has not filed a brief in
response to claimant's appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. See McFall v. Jewell Ridge Coal Corp., 12
BLR 1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must
affirm the administrative law judge's Decision and Order if the findings of fact
and conclusions of law are rational, supported by substantial evidence, and in
accordance with 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).
After consideration of the administrative law judge's Decision and Order on
Remand, the issues on appeal and the evidence of record, we conclude that the
administrative law judge's denial of benefits is supported by substantial evidence
and contains no reversible error. Under Section 718.204(b)(2)(iv), the
administrative law judge found that claimant testified that his last job was as a
continuous miner operator and that claimant classified this job as "hard". The
administrative law judge further indicated that claimant described the job as
"strenuous" work, requiring considerable lifting, pulling, and tugging. Decision
and Order on Remand at 3; Director's Exhibit 25; Hearing Transcript at 11. The
administrative law judge reasonably found that Dr. Baker's opinion, that claimant
had a mild to moderate impairment, when compared with the exertional requirements
of claimant's usual coal mine employment, was insufficient to establish total
disability pursuant to Section 718.204(b)(2)(iv). Decision and Order at 3;
Cornett v. Benham Coal Co., 227 F.3d 569, 22 BLR 2-107 (6th Cir. 2000);
McMath v. Director, OWCP, 12 BLR 1-6 (1988). This determination is rational
and supported by the evidence of record. Scott v. Mason Coal Co., 14 BLR 1-37 (1990)(en banc). Therefore, because we previously affirmed the
administrative law judge's finding that claimant failed to establish total
disability at Section 718.204(b)(2)(i)-(iii), and we now affirm the finding that
the medical opinions of record do not support a finding of total disability under
Section 718.204(b)(2)(iv), claimant has failed to establish total disability, a
requisite element for entitlement to benefits. Consequently, claimant has not
established entitlement to benefits. Anderson v. Valley Camp of Utah, Inc.,
12 BLR 1-111 (1985); Baumgartner v. Director, OWCP, 9 BLR 1-65 (1986).
Accordingly, the administrative law judge's Decision and Order on Remand denying benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
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. All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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2)The Board also held that the administrative law judge permissibly discredited the opinions
of Drs. Bushey, Clarke and Harrison that claimant suffers from a disabling respiratory impairment. Spurlock v.
New Horizons Coal, Inc., BRB No. 00-0802 BLA (May 23, 2001) (unpublished).
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3)The provision pertaining to total disability, previously set out at 20 C.F.R.
§718.204(c), is now found at 20 C.F.R. §718.204(b) while the provision pertaining to disability causation,
previously set out at 20 C.F.R. §718.204(b), is now found at 20 C.F.R. §718.204(c).
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NOTE: This is an UNPUBLISHED BLA Document.
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