BRB No. 02-0213 BLA
AMY CLEMONS )
(Widow of JACK CLEMONS) )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/13/2002
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Joseph E. Kane,
Administrative Law Judge, United States Department of Labor.
Amy Clemons, Salyersville, Kentucky, pro se.
Mary Forrest-Doyle (Eugene Scalia, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
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: DOLDER, Chief Administrative Appeals Judge, McGRANERY and
GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals, without the assistance
of counsel, the Decision and Order - Denying Benefits (01-BLA- 0682) of
Administrative Law Judge Joseph E. Kane on a 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).[2] The administrative law judge found that the deceased miner was
employed in the coal mines for five years.[3]
Further, pursuant to claimant's request for modification, the administrative law
judge found that claimant established the existence of clinical pneumoconiosis at
20 C.F.R. §§718.202(a)(1), and thereby a mistake in a determination of
fact in the district director's prior denial of benefits. The administrative law
judge also found that the evidence established that the miner's death was due to
pneumoconiosis, but failed to establish that the miner's pneumoconiosis arose, at
least in part, out of coal mine employment at 20 C.F.R. §718.203(c).
Accordingly, benefits were denied.
On appeal, claimant generally challenges the finding of the administrative law
judge. The Director, Office of Workers' Compensation Programs (the Director),
responds, urging affirmance of the Decision and Order - Denying Benefits as
supported by substantial evidence.
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. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-85
(1994); McFall v. Jewell Ridge Coal Co., 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 by 30 U.S.C. §932(a); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to survivor's benefits, claimant must establish that
the miner had pneumoconiosis, that the miner's 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); Trumbo v. Reading Anthracite
Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990);
Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP,
11 BLR 1-39 (1988). In a survivor's claim filed on or after January 1, 1982, death
will be considered due to pneumoconiosis if pneumoconiosis was the cause of the
miner's death, if 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. See 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 Brown v. Rock
Creek Mining Co., 996 F.2d 812, 17 BLR 2-135 (6th Cir. 1993).
After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal, and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error. The administrative law judge properly found that
the evidence of record failed to establish that pneumoconiosis arose, at least in
part, out of coal mine employment. Addressing the medical opinions relevant to a
determination of the etiology of the miner's pneumoconiosis, the administrative law
judge concluded that because Dr. Burki found that claimant did not have
pneumoconiosis based on claimant's short coal mine history and negative x-rays and
CT scan, the doctor implicitly denied an etiology of coal mine employment.
Decision and Order at 14; Director's Exhibit 18. Likewise, the administrative law
judge concluded that Dr. Musgrave's opinion could not establish etiology inasmuch
as Dr. Musgrave found a six year coal mine employment history and did not state
that pneumoconiosis arose out of coal mine employment. Moreover, the
administrative law judge noted that Dr. Musgrave's finding of pneumoconiosis itself
was conclusory as the report was devoid of documentation supporting its finding.
Decision and Order at 14; Director's Exhibits 19, 26-12. Finally, the
administrative law judge found that Dr. Vorghese's opinion was vague and equivocal
as to the origin of the miner's "questionable" pneumoconiosis inasmuch as Dr.
Vorghese responded, "? Partly" to the question of whether the miner's
pneumoconiosis arose out of coal mine employment. Director's Exhibit 26. Thus,
the administrative law judge found that the opinions addressing the cause of the
miner's pneumoconiosis were of little probative value. This was rational. 20
C.F.R. §718.203(c); see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149,
1-155 (1989)(en banc); Justice v. Island Creek Coal Co., 11 BLR 1-91,
1-94 (1988); Hucker v. Consolidation Coal Co., 9 BLR 1-137, 1-139 (1986);
Baumgartner v. Director, OWCP, 9 BLR 1-65, 1-66 (1986). Decision and Order
at 14; Director's Exhibits 26-29. We, therefore, affirm the administrative law
judge's finding that the record lacks competent medical evidence to establish that
the miner's pneumoconiosis arose out of his coal mine employment and that claimant
was not, therefore, entitled to benefits. Boyd, supra.[4] Because we affirm the administrative law judge's
finding that claimant failed to establish that the miner's pneumoconiosis arose out
of coal mine employment, an essential element of entitlement, we do not reach the
Director's arguments concerning whether the administrative law judge properly found
the existence of pneumoconiosis and death due to pneumoconiosis established.
Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) Susie Davis, with the Kentucky Black Lung Association of Pikeville, Kentucky, requested, on
behalf of claimant, that the Board review the administrative law judge's decision, but Ms. Davis 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 20
C.F.R. Parts 718, 725 and 726 (2001). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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3) The administrative law judge adopted the finding by the administrative law judge in the miner's
earlier claim of 5 years of coal mine employment as neither party in this case presented evidence to refute that finding.
Moreover, evidence from the miner's claim shows that he stated that he worked "at least five years in underground coal
mine employment." Director's Exhibit 8, and "five or six years." Director's Exhibit 7.
The miner's claim for benefits was filed March of 1973 and denied by the Department of Labor on December 13,
1979. The miner took no further action on that claim. Claimant, the widow of the miner who died on November 29, 1999,
filed her claim for survivor's benefits on December 9, 1999.
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4) We will not address Director's contention that the administrative law judge erred in relying on
the miner's smoking history as a possible cause for the miner's clinical pneumoconiosis inasmuch as the administrative law
judge found that claimant failed to produce sufficient evidence to carry her burden of demonstrating the necessary
relationship between the miner's coal mine employment and pneumoconiosis, and the administrative law judge could not
reasonably infer such a relationship based merely upon claimant's employment history. Baumgartner v. Director,
OWCP, 9 BLR 1-65, 1-66 (1986).
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NOTE: This is an UNPUBLISHED BLA Document.
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