BRB No. 02-0231 BLA
MINNIE MAE TAYLOR
(Widow of JAMES MORTON TAYLOR)
Claimant-Petitioner
v.
IKERD BANDY COMPANY,
INCORPORATED
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
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) DATE
ISSUED:08/28/2002
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) DECISION AND ORDER
Appeal of the Decision and Order - Denial of Benefits of Robert L.
Hillyard, Administrative Law Judge, United States Department of Labor.
Charles E. Keith (Morgan, Bailey & Collins), Richmond, Kentucky, for
claimant.
Timothy J. Walker (Ferreri & Fogel), Lexington, Kentucky, for
employer.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals the Decision and Order
- Denial of Benefits (2001-BLA-0407) of Administrative Law Judge Robert L.
Hillyard 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]
Adjudicating this survivor's claim pursuant to 20 C.F.R. Part 718, based on
claimant's May 12, 2000 filing date, the administrative law judge credited the
miner with at least twenty-two years of coal mine employment. Addressing the
merits of the claim, the administrative law judge found the medical evidence of
record insufficient to establish the existence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a). In addition, he found the evidence insufficient to
establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c). Accordingly, the administrative law judge denied benefits.
On appeal, claimant challenges the administrative law judge's denial of
benefits, contending that the administrative law judge erred in finding the
medical evidence insufficient to establish the existence of pneumoconiosis. In
response, employer urges affirmance of the administrative law judge's denial of
benefits as supported by substantial evidence. The Director, Office of Workers'
Compensation Programs, has filed a letter stating that he will not file a
response brief on the merits of this appeal.[3]
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable 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 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). For survivor's claims filed on or after
January 1, 1982, the miner's death will be considered due to pneumoconiosis if
pneumoconiosis was the cause of the miner's death, 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 20 C.F.R. §718.304 is applicable. 20 C.F.R.
§718.205(c)(1)-(3). Pneumoconiosis is a substantially contributing cause
of death if it hastened the miner's death. 20 C.F.R. §718.205(c)(5);
see Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th
Cir. 1995); Brown v. Rock Creek Mining Co., 996 F.2d 812, 17 BLR 2-135
(6th Cir. 1993).
The Board is not permitted to undertake a de novo
adjudication of the claim. To do so would upset the carefully allocated
division of power between the administrative law judge as the trier-of-fact, and
the Board as a review tribunal. See 20 C.F.R. §802.301(a); Sarf
v. Director, OWCP, 10 BLR 1-119 (1987). As we have emphasized previously,
the Board's circumscribed scope of review requires that a party challenging the
Decision and Order below address that Decision and Order and demonstrate that
substantial evidence does not support the result reached or that the Decision
and Order is contrary to law. See 20 C.F.R. §802.211(b); Cox v.
Director, OWCP, 791 F.2d 445, 9 BLR 2-46 (6th Cir. 1986), aff'g 7 BLR
1-610 (1984); Sarf, supra; Fish v. Director, OWCP, 6 BLR 1-107
(1983). Unless the party identifies errors and briefs its allegations in terms
of the relevant law and evidence, the Board has no basis upon which to review
the decision. See Sarf, supra; Fish, supra.
In this case, other than generally asserting that the medical evidence is
sufficient to establish the existence of pneumoconiosis, claimant has not
challenged the rationale provided by the administrative law judge for finding
the medical evidence of record insufficient to establish that the miner's death
was due to pneumoconiosis pursuant to Section 718.205(c). Claimant has failed
to identify any error made by the administrative law judge in the evaluation of
the evidence pursuant to Section 718.205(c) and applicable law. Thus, the Board
has no basis upon which to review this part of the decision of the
administrative law judge. See 20 C.F.R. §802.211(b); Cox,
supra; Sarf, supra; Fish, supra.
Consequently, we must affirm the finding of the administrative law judge that
the evidence of record is insufficient to establish that the miner's death was
due to pneumoconiosis pursuant to Section 718.205(c).[4] We, therefore, affirm the denial of benefits as it is supported by
substantial evidence and is in accordance with law.
Accordingly, the administrative law judge's Decision and Order - Denial of
Benefits is 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) Claimant is the widow of the miner, James M. Taylor, who
died on April 23, 2000. Director's Exhibit 9. The miner filed an application
for benefits on January 2, 1981, which was denied by the district director on
March 27, 1981, finding no elements of entitlement established. Director's
Exhibits 25-428, 25-374. The miner filed a second application for benefits on
March 30, 1984. Director's Exhibit 25-424. Following a denial by the district
director, the case was transferred to the Office of Administrative Law Judges.
Director's Exhibits 25-368, 25-335. In a Decision and Order issued on September
17, 1987, Administrative Law Judge Eric Feirtag denied benefits. Director's
Exhibit 25-1. No further action was taken on the miner's claim.
Claimant filed her survivor's claim on May 12, 2000. Director's Exhibit
1. The survivor's claim is the only claim herein at issue.
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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, 722, 725, and 726 (2001). All citations to the regulations, unless otherwise noted, refer to
the amended regulations.
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3) The parties do not challenge the administrative law judge
decision to credit the miner with at least twenty-two years of coal mine
employment or his findings pursuant to 20 C.F.R. §718.202(a)(2) and (3).
These findings are therefore affirmed. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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4) In light of our affirmance of the administrative law
judge's finding that the medical evidence is insufficient to establish that the
miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c),
a requisite element of entitlement in this survivor's claim, we decline to
address claimant's contentions regarding the administrative law judge's findings
under 20 C.F.R. §718.202(a). See Trumbo v. Reading Anthracite
Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29
(1990); see also Brown v. Rock Creek Mining Co., Inc., 996 F.2d
812, 17 BLR 2-135 (6th Cir. 1993); see generally Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984).
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NOTE: This is an UNPUBLISHED BLA Document.
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